Natural Resources Board Approves Moving Forward with Air, Stormwater, and Nitrate Regulations

October 18, 2019

The Wisconsin Natural Resources Board met on September 25th and moved three environmental rule proposals forward.  Each of these proposals is discussed below.

Nitrates Rules

Governor Evers recently directed the Wisconsin Department of Natural Resources to develop rules “to reduce nitrate contamination by establishing targeted nitrate performance standards for soils that are most likely to experience nitrate contamination.”

At the meeting, the Wisconsin Natural Resources Board (NRB) approved preliminary hearings on the scope statement pertaining to this rulemaking. While only one hearing was proposed initially, anticipating significant interest in this effort, the NRB directed staff to hold three hearings at the following locations: Fond du Lac; Hancock Research Center; and Blackhawk Technical College (Janesville). In addition, the NRB directed the hearings be held after November 1st, reasoning that harvest would be completed and farmers may be more available to participate in the hearings.

Scope statements are intended to provide notice to the public that an agency is beginning the rulemaking process and to provide information about what the rulemaking is intended to address, as well as other information. When agencies engage in rulemaking, they are required to stay within the bounds of the scope statement.

In this instance, the scope statement is quite clear as to what this rulemaking may entail:

The rule revisions will define sensitive areas in the state and the performance standards needed to protect surface and groundwater quality in these areas. Soil maps based, in part, on soil permeability in conjunction with groundwater quality information may be used to define sensitive areas….Performance standards may include modifications to : nutrient management plans; application rates of manure or commercial fertilizer; timing of nutrient application; crop rotations; setbacks from drinking water supplies for manure and fertilizer applications; and additional changes or management practices expected to achieve surface water quality standards and groundwater standards in the sensitive areas.

Thus, the rules focus on agriculture and target the protection of both groundwater and surface waters. Also, while DNR listed some specific modifications to be considered, the door is open to add other provisions to protect surface and groundwater.

The scope statement indicates the following may be affected by this rule: rural residents with private wells; users of community and non-community wells; agricultural producers and their consultants; and agricultural cooperatives and fertilizer retailers. Moreover, DNR estimates the cost of the combined rule  to be between $50,000 and $5 million per year.

Air Streamlining Rules

The NRB also adopted an air rule intended to simplify the air permitting process and to address statutorily mandated rulemaking. This effort originally started in 2012.  DNR split the rulemaking into two parts. The first part focused on adopting an operation permit exemption for certain air emission sources referred to as “natural minor sources.” These changes became effective on December 1, 2015.

The Natural Resources Board approved the second part of this rulemaking at its September meeting. Some of the modifications included:

  • Creation of an exemption from permit requirements to allow law enforcement to incinerate drugs, if certain requirements are met.
  • Revisions to the list of allowed preconstruction activities that can be performed before obtaining a permit, to align with EPA requirements.
  • Revisions to allow more flexibility to facilities operating under a “Plantwide Applicability Limitation” (PAL). Companies operating under PALs have more flexibility to make changes without having to go through additional permitting.
  • Allow the use of e-signatures or electronic submittal of application materials and reports in lieu of paper copies.

One issue that comes up frequently in the world of air permitting is what work can be done prior to obtaining an air construction permit. Under NR 406.03(1), no person may “commence construction, reconstruction, replacement, relocation or modification of a stationary source” without an air construction permit unless the source is exempt from permitting. However, NR 406.03(1e) currently excludes several activities from determining whether an activity has “commenced,” meaning these activities may be conducted before an air construction permit is issued. These include:

  • Installing building supports or foundations.
  • Laying underground piping or conduit.
  • Erecting storage structures.
  • Dismantling existing equipment or structures.
  • Ordering equipment or control devices.
  • Temporarily storaging equipment on site.
  • Site clearing.
  • Locating underground utilities.
  • Installating erosion control measures.
  • Paving

The proposed rule, however, makes several changes to these provisions, which are moving forward in order to be consistent with federal requirements. The provisions relating to installing building support and foundations, laying underground pipe or conduit, and paving, are being removed.

While it is unfortunate that the list of allowable activities is being restricted, another provision in the rules provides some flexibility to begin construction prior to obtaining a construction permit. Under NR 406.03(2), a person may submit a waiver request to start construction. The waiver must show that “undue hardship” will be caused if a waiver is not granted. “Undue hardship” may result from:  adverse weather conditions; catastrophic damage of existing equipment; or a “substantial economic or financial hardship that may preclude the project in its entirety;” or other unique conditions.

In this rulemaking, DNR is loosening up one of the criteria for obtaining a waiver. DNR is modifying the criterion that currently allows for a waiver if there is “a substantial economic or financial hardship that may preclude the project in its entirety,” to instead allow a waiver if there is “a substantial economic or financial hardship.”

DNR also added a provision indicating that a construction waiver may not be issued to a source that commenced construction prior to requesting a waiver.

Stormwater Rules

In addition to taking action on the two items discussed above, the NRB approved a scope statement to modify Wisconsin’s stormwater rules, NR 216. These rules contain provisions under which municipalities, industrial facilities, and construction site owners must obtain Wisconsin Pollution Discharge Elimination System (WPDES) stormwater permits. These rules are being initiated mainly to address deficiencies with the existing rules identified by EPA, to incorporate federal stormwater requirements that have been enacted since the last update to NR 216, and to update references in the rule. Hearings are anticipated to be held in March of 2021.

Access to NRB

The NRB is engaged in many different activities that impact the citizens of Wisconsin, including environmental regulation, overseeing state parks and numerous other state properties,  overseeing forestry and providing fire protection, and establishing hunting, fishing and trapping regulations. If you want to watch your government at work, NRB meetings are broadcast live on the web at https://dnr.wi.gov/about/nrb/. In addition, the NRB provides opportunities to testify at its meetings, and to submit written comments. For information regarding testifying or submitting written comments, go to  https://dnr.wi.gov/about/nrb/public.html.

 

For more information about "Natural Resources Board Approves Moving Forward with Air, Stormwater, and Nitrate Regulations," contact Patrick Stevens at pstevens@axley.com or 262.409.2296.