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Proposed Wisconsin Fees for Review of Applications to Construct or Modify Sources of Air Pollution – CR10-047
Most Recent Action
The final rulemaking order was filed on November 1, 2010.
Background
The DNR Bureau of Air Management proposes to increase the fees for reviewing applications to construct or modify sources of air pollution, and to change its present policy of not collecting fees for significant review work performed when an application is withdrawn.
Inflation and the increasing complexity of permit review work has increased costs for the new source review program. In many cases, applications are either withdrawn or the department is asked to stop working on them prior to final decision and permit issuance. Because the DNR is required to act timely on each application, these practices often result in unnecessary application processing and review.
Beginning in FY 2005 the fees collected have not been adequate to fully support the work to review applications submitted. The shortfall has been covered by reducing costs and spending revenue surplus from earlier years. The surplus has been shrinking and will be gone by the end of FY 2010.
Authority
Section 110(a)(2)(K) of the Federal Clean Air Act requires states to incorporate a permit fee system in their state implementation plans (SIP) to recover the reasonable cost of reviewing and acting on permit applications and enforcing the conditions of the permits.
Section 285.69(1)(a), Wis. Stats. gives the DNR the authority to promulgate rules for the payment and collection of reasonable fees for reviewing and acting upon construction permits.
Standard
Fee increases are based on several factors. First is a baseline increase of 30% across the board to account for inflation since the last fee increase in 1999. Additional increases reflect changes in program complexity and the amount of staff time spent on a particular permit review.
Fee Description | Existing | Proposed | Increase | Last Raised |
Initial Application Fee | $1,350 | $7,500 | 455% | 1999 |
Major modification | $8,000 | $12,000 | 50% | 1999 |
Modeling analysis (detailed for a major source) | $3,200 | $4,500 | 41% | 1999 |
MACT, BACT, LAER (case-by-case analysis) | $2,700 | $4,500 | 67% | 1999 |
Public Hearing | $950 | $1,500 | 58% | 1999 |
Related Documents
Rules for Hearing, Fiscal Estimate, and Background Memo
This rule was adopted at the August 10-11, 2010 Natural Resources Board meeting.
Transport Rule
Most Recent Action
In EME Homer City Generation LP v. EPA, a federal court vacated the EPA’s Cross State Air Pollution Rule (CSAPR), which would have required 28 states, including Wisconsin, to significantly curtail sulfur dioxide and nitrogen oxide emissions. The EPA has petitioned the D.C. Circuit Court of Appeals for an en banc rehearing.
Background
On May 12, 2005, the EPA issued the Clean Air Interstate Rule (CAIR), and on April 26, 2006, the EPA issued CAIR federal implementation plans (FIPs); these rules aimed to address the interstate transport of pollutants that contributed significantly to downwind nonattainment of the PM 2.5 and 8-hour ozone National Ambient Air Quality Standards (NAAQS) established in July 1997.
In July 2008, the D.C. Circuit Court vacated CAIR and the CAIR FIPs. In December 2008, the Court remanded these rules without vacating them, keeping them in place temporarily while the EPA promulgated new rules.
The Cross State Air Pollution Rule (CSAPR) was intended to replace CAIR. However, in EME Homer City Generation LP v. EPA, a federal court vacated the CSAPR and directed the EPA to continue administering CAIR while it promulgates a "valid replacement."
This rule is part of a group of rules known as the EPA's Regulatory Train Wreck.
Authority
The Clean Air Act’s (CAA) Section 110(a)(2)(D)(i)(I), also known as the “good neighbor” provision, requires states to prohibit emissions that contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any primary or secondary NAAQS.
Standard Under CSAPR
The rule requires 27 states, including Wisconsin, to improve air quality by reducing power plant emissions that cross state lines and contribute to nonattainment or maintenance concerns for ozone (O3) or fine particulate NAAQS. This rule supports attainment and maintenance for the 1997 eight-hour ozone standard, the 1997 annual fine particulate standard (15 ug/m3) and the 2006 24-hour fine particulate standard (35 ug/m3).
Utilities are provided emission allocations and must hold allocations for each ton of SO2 or NOx emissions. The EPA has provided default allocations, but states can provide different allocations through a State Implementation Plan (SIP). The Cross-State Air Pollution Rule allows for trading of emissions between utilities within the state and limited out of state trading. Compared to 2010, this rule will reduce Wisconsin's SO2 emissions by 63% (69,346 tons per year) and NOx emissions by 9% (2,891 tons per year).
The rule sets emissions caps, for sulfur dioxide (SO2) and nitrogen oxides (NOx). In Wisconsin, during 2012-2013, annual emissions may not exceed 79,480 tons for SO2, and 31,628 tons for NOx; ozone season NOx emissions may not exceed 13,704 tons. Beginning in 2014, Wisconsin's emission caps will be 40,126 tons annually for SO2, 30,398 tons annually for NOx, and 13,216 tons for NOx during the ozone season.
The EPA is adopting FIPs for each state covered by this rule. The EPA is encouraging states to replace these FIPs with State Implementation Plans (SIPs) starting as early as 2013.
The rule is expected to cost $800 million annually to implement, in addition to the roughly $1.6 billion per year in capital investments already under way as a result of CAIR.
At the same time it release the final CSAPR rule, the EPA also issued a supplemental notice of proposed rulemaking that would require six states — Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin — to make summertime NOX reductions under the Cross-State Air Pollution Rule ozone-season control program. The EPA finalized the supplemental rule on December 15, 2011.
The final rule expanding the Cross State Air Pollution Rule is distinct from a separate package of “technical amendments” to CSAPR, which would alter the originally proposed emission budgets for Wisconsin and other states.
Related Documents
EPA's petition for an en banc rehearing, October 5, 2012.
EME Homer City Generation LP v. EPA, Vacating the CSAPR, August 21, 2012.
Direct Final Rule, February 7, 2012
Direct Final Rule Fact Sheet, February 2012
Final Revisions Rule, February 7, 2012
Final Revisions Rule Fact Sheet, February 2012
EME Homer City Generation LP v. U.S. Environmental Protection Agency stay of the rule until case is decided, December 30, 2011
Federal Implementation Plan, December 15, 2011
Fact Sheet, December 15, 2011
Proposed technical modifications, October 6, 2011
Statement on proposed revisions, October 6, 2011
Fact sheet on proposed revisions, October 6, 2011
Final Rule, July 6, 2011
Supplemental Notice of Proposed Rulemaking, July 11, 2011
Final Rule Fact Sheet, July 18, 2011
Supplemental Notice Fact Sheet, July 2011
CSAPR Presentation created by the EPA, July 18, 2011
Press Release announcing the rule, July 7, 2011
Transport Rule & Utility MACT Increase Electricity Costs, National Economic Research Associates (NERA), May 2011
Public hearings were held on August 19, 26, and September 1, 2010.
Press Release announcing the proposed rule, July 6, 2010
Proposed Federal Rule Concerning Coal Combustion Residuals
Most Recent Action
On January 18, Earthjustice and 11 environmental groups notified the U.S. Environmental Protection Agency today that they intend to sue the agency to force it to issue regulations for the disposal of coal ash if the EPA does not finalize its proposed rule within 60 days.
Background
The EPA is proposing the first-ever national rules regulating the disposal and management of coal combustion residuals (CCR), or coal ash, from coal-fired power plants.
Structural stability concerns associated with coal ash impoundments came to national attention in 2008 when an impoundment holding disposed ash waste generated by the Tennessee Valley Authority broke open, creating a massive spill in Kingston, TN, that covered millions of cubic yards of land and river. The EPA estimates that there are approximately 300 CCR landfills and 584 CCR surface impoundments or similar units where CCRs are disposed at roughly 495 coal-fired power plants.
Two proposals that reflect different approaches to managing the disposal of coal ash under the Resource Conservation and Recovery Act (RCRA) are outlined in the proposed rule.
The EPA is only considering coal ash generated by electric utilities and independent power plants. The EPA is not proposing to change the May 2000 Regulatory Determination for beneficially used CCRs, or addressing the placement of CCRs in mines, or non-minefill uses of CCRs at coal mine sites.
This rule is part of a group of rules known as the EPA's Regulatory Train Wreck.
Authority
There is currently no direct authority for regulation of coal ash. To regulate coal ash the EPA will need to either list these residuals as special wastes subject to regulation under subtitle C or the RCRA, or regulate the residuals under subtitle D of the RCRA, the section for non-hazardous wastes.
Proposed Standards
The EPA is considering two possible options for the management of coal ash for public comment. Both options fall under the Resource Conservation and Recovery Act (RCRA).
Under the first proposal, the EPA would list these residuals as special wastes subject to regulation under subtitle C of the RCRA, when destined for disposal in landfills or surface impoundments. Subtitle C creates a comprehensive program of federally enforceable requirements for waste management and disposal. Under the second proposal, the EPA would regulate coal ash under subtitle D of the RCRA, the section for non-hazardous wastes. Subtitle D gives the EPA authority to set performance standards for waste management facilities which are narrower in scope and would be enforced primarily by those states who adopt their own coal ash management programs.
Under the first proposal, the EPA would reverse its August 1993 and May 2000 Bevill Regulatory Determinations regarding CCRs and list these residuals as special wastes subject to regulation under subtitle C of the RCRA, when they are destined for disposal in landfills or surface impoundments. Under the second proposal, EPA would leave the Bevill determination in place and regulate disposal of such materials under subtitle D of RCRA by issuing national minimum criteria.
The main differences between the two proposals involve implementation and enforcement. A chart comparing and contrasting the two approaches is available online.
The Subtitle C option would require the development of state or federal permit programs, would allow for direct federal enforcement, and would include related storage, manifest, transport, and disposal requirements and mechanisms for corrective action and financial responsibility. Before the Subtitle C rule would become effective, authorized states would need to adopt the rule.
The Subtitle D option would go into effect sooner than a Subtitle C rule, with implementation required approximately six months after promulgation. However, the Subtitle D option would not require permit programs to be established, although states can establish such permit programs under their own authorities. Also, the federal Subtitle D proposal would not be federally enforceable, although citizen’s suits could be filed, and would not establish the same extensive management requirements for CCRs destined for disposal.
Under the Subtitle C option, the EPA is proposing measures that will effectively phase out existing surface impoundments. During this interim period, the EPA is proposing to require measures relating to the structural integrity of impoundments. Under the Subtitle D option, existing impoundments would be required to be retrofitted with composite liners, which will create strong incentives to close these impoundments and transition to landfills.
Both options mandate liners and ground water monitoring at new landfills handling coal ash in order to prevent leaching of contaminants to groundwater and resulting risks to human health. Both alternatives also establish dam safety requirements to address the structural integrity of surface impoundments.
The Regulatory Impact Analysis (RIA) estimates the average annual regulatory cost, for the next 50 years, to be $1.474 billion a year under the Subtitle C option and $587 million a year under the Subtitle D option. These estimates include the costs of industry compliance and state and federal government oversight and enforcement costs. On a 50-year present value basis at a 7% discount rate, these average annual costs total $20.3 billion (Subtitle C) and $8.1 billion (Subtitle D), respectively.
Additional Information
Notice of Data Availability and Request for Additional Comments, October 12, 2011
Press Release, May 4, 2010
Published rule and corrections, as published in the Federal Register.
Chart outlining the Key Differences Between Subtitle C and Subtitle D Options
EPA Announces Additional Mandatory Greenhouse Gas Reporting Requirements
July 29, 2010The EPA has finalized a regulation to require monitoring and reporting of greenhouse gas emissions from magnesium production, underground coal mines, industrial wastewater treatment, and industrial waste landfills. If emissions meet the reporting threshold, that source must begin monitoring GHG emissions on January 1, 2011, and must submit a first annual report to the EPA by March 31, 2012.
This action adds these four source categories to the list of source categories already required to report greenhouse gas emissions. The EPA has now taken action on all outstanding source categories and subparts from the April 2009 proposal for the greenhouse gas reporting program.
These GHG reporting rules are generally the first steps toward implementing GHG emissions limits and related climate change regulations.
(This post was authored by Hamilton consulting Group's intern, Emily Kelchen, a third year law student at the University of Wisconsin Law School.)
Wisconsin Natural Resources Board Announces August Meeting Agenda
July 28, 2010The Wisconsin Natural Resources Board recently posted its lengthy agenda for its upcoming two-day meeting, August 10 and 11. This is the last meeting items can be adopted at in order to become effective before elections and end of the year, so there are several weighty items on the agenda.
The first of seven rules implementing the Great Lakes Compact are scheduled for adoption: CR10-061 Water Use Fees; CR10-060 Water Conservation & Water Use Efficiency; and CR10-059 Water Use Registration & Reporting. The DNR is also requesting the Board authorize hearings for DG-34-10, concerning Water Use Permitting, which is also part of the Great Lakes Compact.
Federal Emissions Standards for Boilers/Solid Waste Incinerators
Most Recent Action
The EPA has issued its long-delayed rules imposing the first-ever limits on emissions for mercury, acid gases and fine particulate matter, or soot, from boilers and incinerators. Final Rules: Area. Major. CISWI.
Background
The Clean Air Act (CAA) requires the EPA to develop and adopt new source performance standards (NSPS) for solid waste incineration units including Commercial/Industrial Solid Waste Incinerators (CISWI). NSPS issued in 2000 required new and existing incinerators to control emissions of the following nine pollutants: hydrogen chloride, carbon monoxide, lead, cadmium, mercury, particulate matter, dioxins/furans, nitrogen oxides, and sulfur dioxide to levels that reflect the degree of emission reduction based on the maximum achievable control technology (MACT).
After promulgation of the final 2000 CISWI standards, the EPA received and granted a request for reconsideration, pursuant to section 307(d)(7)(B) of the CAA, related to the definition of “commercial and industrial solid waste incineration unit” and “commercial or industrial waste” in the EPA’s CISWI rulemaking. The United States Court of Appeals for the District of Columbia Circuit also granted the EPA’s request for a voluntary remand of the 2000 rule. The remand allowed the agency to address concerns related to the EPA’s procedures for establishing MACT standards for CISWI units in light of the U.S. Court of Appeals’ decision in Cement Kiln Recycling Coalition v. EPA.
In 2005, the EPA proposed and finalized the CISWI definitions rule which revised the definition of “solid waste,” “commercial and industrial waste,” and “commercial and industrial waste incineration unit.”
In June 2007, a U.S. Court of Appeals struck down the EPA's Definitions Rule, citing the Clean Air Act requirement that any facility burning solid waste be regulated as a waste combustor, not a boiler. The court ordered the EPA to propose a new CISWI Definitions Rule and Boiler MACT standards by April 29, 2010, and to complete final rules by January 16, 2011. Final rules were released on February 21, 2011.
At the same time final rules were issued, the EPA also announced it would "reconsider" certain aspects of the boiler and commercial/industrial solid waste incinerator (CISWI) rules in order to fully address technical issues raised during the comment period. On December 2, 2011, the EPA proposed amendments to the standards regulating the emissions of hazardous air pollutants (HAPs) from new and existing boilers and process heaters and major and area sources, as well as Commercial and Industrial Solid Waste Incinerators (CISWI). The EPA also proposed revisions to the Non-Hazardous Secondary Material (NHSM) Rule.
In December 2012, the EPA issued its revised final rules. (Final Rules: Area. Major. CISWI.)
These rules are being issued in conjunction with rules identifying non-hazardous materials that are solid waste. Approximately 200,000 units across the country will be impacted by the proposed rules.
This rule is part of a group of rules known as the EPA's Regulatory Train Wreck.
Authority
Section 112 of the Clean Air Act (CAA) requires the EPA to set emissions standards for boilers and process heaters. Two different types of sources are covered by the CAA, major sources and area sources. Major sources emit 10 tons of any one toxic air pollutant or 25 tons of all toxic air pollutants each year. Emissions standards, based on the maximum achievable control technology (MACT), must be set for all toxic air pollutants emitted by major sources. Area sources are smaller and may be regulated based on less stringent generally available control technology (GACT), except for certain pollutants which must meet MACT standards.
Section 129 of the Clean Air Act requires the EPA to set emissions standards for nine pollutants (Cadmium, Carbon Monoxide, Dioxins/Furans, Hydrogen Chloride, Lead, Mercury, Oxides of Nitrogen, Particulate Matter, and Sulfur Dioxide) from incinerators, including Commercial/Industrial Solid Waste Incinerators (CISWI).
Natural Resources Defense Council v. EPA, 489 F.3d 1250, ordered the EPA to complete final rules by December 16, 2010.
Standards
Final
Overview Summary Fact Sheet, December 2012
Overview Technical Fact Sheet, December 2012
Adjustments from December 2011 Proposed Reconsideration, December 2012
Emission Reductions Remain Significant for Comparable Cost, December 2012
Final Revised Emissions Standards for Area Source Industrial, Commercial, and Institutional Boilers and Process Heaters
Final Emissions Standards - Area Source Boilers, December 2012
Fact Sheet - Area Source Boilers, December 2012
Final Revised Emissions Standards for Major Source Industrial, Commercial, and Institutional Boilers
Final Emissions Standards - Major Source Boilers, December 2012
Fact Sheet - Major Source Boilers, December 2012
Regulatory Impact Analysis for Major Source Boilers, December 2012
Final Revised Emissions Standards for Commercial/Industrial Solid Waste Incinerators
Final Emissions Standards for CISWI, December 2012
Fact Sheet for CISWI, December 2012
Regulatory Impact Analysis for CISWI, December 2012
Proposed
Proposed Emissions Standards for Area Source Industrial, Commercial, and Institutional Boilers and Process Heaters
Proposed Emissions Standards, December 23, 2011
Fact Sheet, December 2011
Final Rule (PDF), March 2011
Fact Sheet (PDF), March 2011
Proposed Emissions Standards for Major Source Industrial, Commercial, and Institutional Boilers
Proposed Emissions Standards, December 23, 2011
Fact Sheet, December 2011
Final Rule (PDF), March 2011
Fact Sheet (PDF), March 2011
Proposed Emissions Standards for Commercial/Industrial Solid Waste Incinerators
Proposed Emissions Standards, December 23, 2011
Fact Sheet, December 2011
Final Rule (PDF), March 2011
Fact Sheet (PDF), March 2011
Emissions Standards for Sewage Sludge Incinerators
Final Rule (PDF), March 2011
Fact Sheet (PDF), March 2011
Additional Information
No Action Assurance Letter, March 13, 2012
Letter to Sen. Ron Wyden (D-OR) from EPA Administrator Lisa Jackson making clear the EPA will not take actions to enforce the standards that the court reinstated, January 18, 2012
Reconsideration Fact Sheet, December 2011
Reconsideration Presentation, December 2011
Delay of Effective Date of Rules, May 18, 2011
Reconsideration Notice, February 21, 2011
Power Point presentation about the proposed rules, June 9, 2010
Press Release, April 30, 2010
The Economic Impact of Proposed EPA Boiler/Process Heater MACT Rule on Industrial, Commercial, and Institutional Boiler and Process Heater Operators, IHS Global Insight for Council of Industrial Boiler Owners, August 2010
EPA Announces New Standards Under Clean Air Act
July 8, 2010The EPA this week announced proposed transport rules to replace the Clean Air Interstate Rule (CAIR) a federal circuit court ruled unacceptable in 2008.
Twenty-eight states, including Wisconsin, will be required to reduce both annual SO2 and NOX emissions in 2012, with additional SO2 emission reductions occurring in 2014. These emission reductions are projected to help downwind states attain air quality standards, specifically the 24-hour PM2.5 standards established in 2006 and the 1997 annual PM 2.5 standards.
The EPA is proposing federal implementation plans for each of the states covered by the rule, however, each state may choose to develop a state plan to achieve the required reductions, replacing its federal plan, and may choose which types of sources to control.
The end result is larger emission reductions, in a short time frame, than CAIR required.
The EPA estimates annual compliance costs at $3.7 billion in 2012 and $2.8 billion in 2014, in 2006 dollars.
You can follow this rule as it progresses on the Great Lakes Legal Foundation website.
(This post was authored by Hamilton Consulting Group's intern, Emily Kiddoo, a third year law student at the University of Wisconsin Law School.)