Chapter NR 406

NR 406.09   Air quality analysis.

NR 406.10   Violations.

NR 406.11   Construction permit revision, suspension and revocation.

NR 406.12   Permit duration periods.

NR 406.13   Duty to comply.

NR 406.15   Relocation of portable sources.

NR 406.16   General construction permits.

NR 406.17   Registration construction permits.

NR 406.18   Petition for issuance of general construction permits and registration construction permits.

Ch. NR 406 Note Note: Corrections made under s. 13.93 (2m) (b) 7., Stats., Register, December, 1996, No. 492.

NR 406.01 NR 406.01 Applicability; purpose.

NR 406.01(1) (1) Applicability. This chapter applies to all air contaminant sources, except indirect sources, which may be required under s. 285.60, Stats., to obtain construction permits. In accordance with s. 285.60 (6), Stats., this chapter exempts sources of certain sizes and types from the requirement to obtain a permit. For nonattainment area major sources the construction permit requirements of ch. NR 408 apply in addition to the requirements of this chapter.

NR 406.01(2) (2) Purpose. This chapter is adopted under ss. 285.11, 285.60 (6), 285.63, 285.65 and 285.66, Stats., to exempt types of stationary sources from the requirement to obtain a construction permit and to establish permit and permit review requirements and permit duration for construction permits.

NR 406.01 History History: Cr. Register, September, 1986, No. 369, eff. 10-1-86; am. Register, April, 1988, No. 388, eff. 5-1-88; emerg. am. (1), eff. 11-15-92; am., Register, May, 1993, No. 449, eff. 6-1-93; am. (1), Register, June, 1995, No. 474, eff. 7-1-95.

NR 406.02 NR 406.02 Definitions. The definitions contained in ch. NR 400 apply to the terms used in this chapter. In addition, the following definitions apply to the terms used in this chapter:

NR 406.02(1) (1) “Clean fuel” means distillate oil, as defined in s. NR 440.205 (2) (h), with a sulfur content less than 0.05% by weight, natural gas, propane, biodiesel fuel, as determined using the procedures in ASTM D6751-09, incorporated by reference in s. NR 484.10 (55v), or any blend of distillate oil and biodiesel fuel.

NR 406.02(1m) (1m) “Facility” means all stationary sources emitting air contaminants which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person, or persons under common control. Emissions resulting from loading, unloading or stockpiling materials to or from vessels or vehicles while at a facility shall be considered as part of the facility’s emissions. Air contaminant sources, other than transportation related activities, shall be considered as part of the same industrial grouping if they are classified under the same 2-digit major group as described in the Standard Industrial Classification Manual, 1987, incorporated by reference in s. NR 484.05 (1).

NR 406.02(2) (2) “Individual construction permit” means a construction permit which is not a general construction permit issued under s. NR 406.16 or a registration construction permit issued under s. NR 406.17.

NR 406.02(3) (3) “Initial crusher” means, at a nonmetallic mineral processing plant, any crusher into which nonmetallic minerals can be fed without prior crushing in that plant. 

NR 406.02(4) (4) “Initial grinding mill” means, at a nonmetallic mineral processing plant, any grinding mill into which nonmetallic minerals can be fed without prior crushing in that plant.

NR 406.02(5) (5) “Municipal garbage and refuse” means garbage and refuse, as those terms are defined in ch. NR 500, which are primarily generated by residential activities but which may include minor amounts of commercial and industrial garbage and refuse that are in the total waste stream and are not hazardous. Municipal garbage and refuse does not include sludge which is generated from a municipal, commercial or industrial wastewater treatment plant, water supply treatment plant or air pollution control facility.

NR 406.02(6) (6) “Permit revision” means any change to a construction permit to reflect a change at a source that is not a modification of the source or that is an exempt modification of the source.

NR 406.02(7) (7) “Regulated asbestos-containing material” has the meaning given in s. NR 447.02 (33).

NR 406.02 History History: Cr. (intro.), renum. from NR 154.01, Register, September, 1986, No. 369, eff. 10-1-86; r. (1), r. and recr. (2), renum. (3) to (7) and (9) to be NR 400.02 (17m), (43m), NR 406.02 (1), NR 400.02 (46s), NR 406.02 (6) and (10), cr. (3) to (5), (7), (9) and (11), (12) renum. from NR 400.02 (98) and am., Register, April, 1988, No. 388, eff. 5-1-88; correction in (6) made under s. 13.93 (2m) (6) 7., Stats., Register, April, 1988, No. 388; (1) renum. from NR 400.02 (16), renum. (1) to be (1m), am. (3), Register, August, 1991, No. 428, eff. 9-1-91; emerg. cr. (2m) and (13), eff. 11-15-92; am. (intro.), Register, May, 1993, No. 449, eff. 6-1-93; cr. (10m), Register, December, 1993, No. 456, eff. 1-1-94; r. (1) to (5), (7) to (10), (11) and (12), Register, June, 1995, No. 474, eff. 7-1-95; renum. (6) and (10m) to be (1) and (2), Register, December, 1996, No. 492, eff. 1-1-97; renum. (1) and (2) to be (3) and (4), cr. (1) and (2), Register, December, 1997, No. 504, eff. 1-1-98; CR 04-107: renum. (1) to (4) to be (3) to (6), cr. (1) and (2) Register August 2005 No. 596, eff. 9-1-05; CR 06-047: renum. (1) to be (1m), cr. (1) Register May 2007 No. 617, eff. 6-1-07; CR 09-020: am. (1), cr. (7) Register January 2010 No. 649, eff. 2-1-10; CR 19-015: am. (6) Register September 2020 No. 777, eff. 10-1-20.

NR 406.03 NR 406.03 Permit requirements and exemptions for construction permits.

NR 406.03(1) (1) Permit requirement. Except as provided in sub. (2), no person may commence construction, reconstruction, replacement, relocation or modification of a stationary source unless the person has a construction permit for the source or unless the source is exempt from the requirement to obtain a permit under s. 285.60 (5), Stats., or under this chapter.

NR 406.03(1e) (1e) Exclusions. Notwithstanding the definitions of “commence construction” and “commence modification” in s. NR 400.02 (44) and (45) respectively, for projects reviewed under this chapter, all of the following activities may be excluded when determining if construction, reconstruction, replacement, relocation, or modification has commenced:

NR 406.03(1e)(c) (c) Erecting temporary storage structures.

NR 406.03(1e)(d) (d) Dismantling existing equipment or structures.

NR 406.03(1e)(e) (e) Ordering equipment or control devices.

NR 406.03(1e)(f) (f) Temporary storage of equipment on site.

NR 406.03(1e)(g) (g) Site clearing.

NR 406.03(1e)(h) (h) Programs undertaken to locate underground utilities.

NR 406.03(1e)(i) (i) Installation of erosion control measures.

NR 406.03 Note Note: Undertaking any of the activities listed under s. NR 406.03 (1e) does not relieve the applicant from the obligation to comply with any other applicable regulations or requirements. If the applicant proceeds with any of the activities prior to receiving a construction permit, the applicant does so at their own risk and the department is not obligated to issue the air permit.

NR 406.03(1m) (1m) Application and forms.

NR 406.03(1m)(a) (a) Applications for construction permits shall be made on forms supplied by the department for these purposes and supplemented with other materials as indicated on the forms. The forms may be supplied by the department in an electronic format, such as on a computer disk, or on line.

NR 406.03 Note Note: Application forms may be obtained from Department Regional Headquarters or Service Center offices, or from the Wisconsin Department of Natural Resources, Bureau of Air Management, PO Box 7921, Madison WI 53707-7921, Attention: Construction permits. The internet web address is: http://dnr.wi.gov/topic/AirPermits/Forms.html.

NR 406.03(1m)(b) (b) Application materials, including construction permit waiver requests, may be submitted on paper or in an electronic format. The applicant shall submit all forms and other required materials, as indicated on the forms. When electing to submit materials on paper, the applicant shall submit the materials to the Wisconsin Department of Natural Resources, Bureau of Air Management, PO Box 7921, Madison WI 53707-7921, Attention: Construction permits.

NR 406.03(2) (2) Waiver of construction permit requirements.

NR 406.03(2)(a) (a) A person who is required to obtain a construction permit under s. 285.60, Stats., may request a waiver from the department in order to commence construction, reconstruction, replacement, relocation or modification of an air pollution source prior to the department issuing a construction permit to the source under this chapter. A waiver request shall be made in writing and shall include an explanation of the circumstances that justify the request and when those circumstances arose or may be anticipated to arise. The waiver request shall be signed by a responsible official for the facility.

NR 406.03(2)(b) (b) The department may grant a waiver provided that all of the following conditions are satisfied:

NR 406.03(2)(b)1. 1. The person has submitted a complete construction permit application for the source to the department.

NR 406.03(2)(b)2. 2. The person has submitted a complete waiver request to the department which demonstrates that undue hardship will be caused if a waiver is not granted. Undue hardship may result from any of the following:

NR 406.03(2)(b)2.a. a. Adverse weather conditions.

NR 406.03(2)(b)2.b. b. Catastrophic damage of existing equipment.

NR 406.03(2)(b)2.c. c. A substantial economic or financial hardship.

NR 406.03(2)(b)2.d. d. Other unique conditions.

NR 406.03(2)(b)3. 3. The person has paid the waiver review fee required under s. NR 410.03 (1) (bm).

NR 406.03(2)(c) (c) The department shall act on the waiver request within 15 days of receipt of a complete request and respond to the applicant either approving or denying that request.

NR 406.03(2)(d) (d) The source may commence construction, reconstruction, replacement, relocation or modification when a waiver is granted.

NR 406.03 Note Note: A waiver does not relieve the applicant from the obligation to comply with any other applicable regulations or requirements. If the applicant proceeds with construction after a waiver is granted, they do so at the applicant’s own risk. Granting the waiver does not obligate the department to approve the air permit application for the source.

NR 406.03(2)(e) (e) The source referenced in par. (b) 1. may not be initially operated until a construction permit is issued.

NR 406.03(2)(f) (f) The department may not grant a waiver for a source that requires a permit under ch. NR 405 or 408 or requires a permit to establish enforceable limitations on potential to emit to avoid permit requirements of ch. NR 405 or 408.

NR 406.03(2)(g) (g) The department may not grant a waiver for a source located or to be located within 10 kilometers of a Class I area under this subsection.

NR 406.03(2)(h) (h) The department may rescind a waiver granted under this subsection if the owner or operator does not diligently respond to department inquiries on the construction permit application or if the department preliminarily determines that the source will not meet the criteria for permit approval under s. 285.63 (1), Stats.

NR 406.03 Note Note: The address of the Madison headquarters is: Wisconsin Department of Natural Resources, Bureau of Air Management, PO Box 7921, Madison WI 53707, Attention: Permit Application Forms

NR 406.03 History History: Renum. from NR 154.04 (1), Register, September, 1986, No. 369, eff. 10-1-86; emerg. am. eff. 11-15-92; am. Register, May, 1993, No. 449, eff. 6-1-93; CR 06-079: renum. to be (1) and am., cr. (2) Register May 2007 No. 617, eff. 6-1-07; CR 09-020: am. (1), cr. (1m) Register January 2010 No. 649, eff. 2-1-10; CR 15-005: cr. (1e) Register November 2015 No. 719, eff. 12-1-15; correction in (1e) (intro.) made under s. 35.17, Stats., Register November 2015 No. 719; CR 19-015: am. (1e) (intro.), r. (1e) (a), (b), am. (1e) (c), r. (1e) (j), am. (1m) (a), (b), (2) (b) 2. c., (g) Register September 2020 No. 777, eff. 10-1-20.

NR 406.035 NR 406.035 Establishment or distribution of plant-wide applicability limitations. Notwithstanding the provisions of s. NR 406.04 (1) and (2), a construction permit is required for each of the following:

NR 406.035(1) (1) Establishing a plant-wide applicability limitation under s. NR 405.18 or 408.11.

NR 406.035(2) (2) Distribution of allowable emissions following expiration of a plant-wide applicability limit under s. NR 405.18 (9) or 408.11 (9).

NR 406.035 Note Note: Reopening of a plant-wide applicability limitation to accommodate an increase of the plant-wide applicability limitation is accomplished using the procedures in s. NR 405.18 (8) (b) 1. c. and (11) (a) 3. or 408.11 (8) (b) 1. c. and (11) (a) 3. Reopening of a plant-wide applicability limitation to accommodate a decrease of the plant-wide applicability limitation is accomplished using the procedures in s. NR 406.11 (1m).

NR 406.035 History History: CR 06-019: cr. Register June 2007 No. 618, eff. 7-1-07.

NR 406.04 NR 406.04 Direct sources exempt from construction permit requirements. This section does not provide an exemption from construction permit requirements for a source that is required to obtain a permit under ch. NR 405 or 408 or s. NR 446.03 (2) (a). For any direct source not required to obtain a permit under ch. NR 405 or 408 or s. NR 446.03 (2) (a), no construction permit is required prior to commencing construction, reconstruction, replacement, relocation or modification if the following conditions are met:

NR 406.04(1) (1) Specific categories of exempt sources. The following categories of direct sources are exempt from the requirement to obtain a construction permit unless construction, reconstruction, replacement, relocation or modification of the source is prohibited by any permit, plan approval or special order applicable to the source:

NR 406.04(1)(a) (a) One or more external combustion furnaces at a source which will not burn any hazardous waste identified under ch. NR 661, or which have been issued a license or licenses under ch. NR 670, and if no individual furnace is designed to burn the following fuels at more than the maximum rates indicated:

NR 406.04(1)(a)1. 1. Coal, coke or other solid fuels, except wood, at a heat input rate of not more than 1.0 million Btu per hour.

NR 406.04(1)(a)2. 2. Wood alone or wood in combination with gaseous or liquid fossil fuels at a heat input rate of not more than 5.0 million Btu per hour.

NR 406.04(1)(a)3. 3. Residual or crude oil at a heat input rate of not more than 5.0 million Btu per hour.

NR 406.04(1)(a)4. 4. Distillate oil at a heat input rate of not more than 10 million Btu per hour.

NR 406.04(1)(a)4m. 4m. Distillate oil meeting the on-road sulfur content for diesel fuel specified in 40 CFR 80.510 (b) at a heat input rate of not more than 25 million Btu per hour.

NR 406.04(1)(a)5. 5. Gaseous fossil fuel at a heat input rate of not more than 25 million Btu per hour.

NR 406.04(1)(b) (b) Equipment which is designed to incinerate solid wastes, which are not pathological wastes, infectious wastes, municipal wastes or hazardous wastes under ch. NR 661, at a rate of not more than 500 pounds per hour.

NR 406.04(1)(bm) (bm) Equipment owned or operated by a government agency, such as police or sheriff’s department, that is used to incinerate only drugs confiscated by federal, state, or local law enforcement agencies, provided the equipment meets all of the following requirements:

NR 406.04(1)(bm)1. 1. The equipment is a dual-chamber incinerator that complies with all of the following:

NR 406.04(1)(bm)1.a. a. The equipment is designed to incinerate not more than 500 pounds of material per hour.

NR 406.04(1)(bm)1.b. b. The equipment has a secondary chamber that operates at all times during drug incineration with a minimum temperature of 1,400 degrees Fahrenheit, and a minimum gas retention time of 0.5 seconds.

NR 406.04(1)(bm)2. 2. Stacks shall comply with all of the following:

NR 406.04(1)(bm)2.a. a. Each stack shall have a height at least 1.5 times higher than the peak of the highest structure within 150 feet of the equipment.

NR 406.04(1)(bm)2.b. b. Each stack shall be located at least 500 feet from nearest property line.

NR 406.04(1)(bm)2.c. c. Each stack shall have unobstructed vertical discharge when the incinerator is operated. Properly installed and maintained spark arresters are not considered obstructions.

NR 406.04(1)(bm)3. 3. The equipment shall be operated within all of the following limits:

NR 406.04(1)(bm)3.a. a. The unit shall reach a minimum operating temperature of 1,400 degrees Fahrenheit prior to introducing the materials to be incinerated.

NR 406.04(1)(bm)3.b. b. The quantity of material incinerated, including packaging, is limited to no more than 25 pounds in any 24-hour period, with the exception of marijuana. Marijuana may be incinerated in quantities up to the design capacity of the incinerator.

NR 406.04(1)(bm)3.c. c. Fuel for the equipment shall be limited to natural gas, liquid petroleum gas, distillate fuel oil with less than 0.0015% sulfur by weight, or the equipment shall use electric power.

NR 406.04(1)(bm)3.d. d. The manufacturer’s recommended operating instructions shall be posted at the incinerator, and the unit shall be operated in accordance with these instructions. The incinerator shall be operated in accordance with the manufacturer’s specifications and maintained in good working order.

NR 406.04(1)(bm)4. 4. The owner or operator shall install, calibrate, maintain, and operate a monitoring device that continuously measures and records the temperature of the secondary chamber of the incinerator.

NR 406.04(1)(bm)5. 5. The owner or operator shall maintain records sufficient to demonstrate that each of the requirements listed in this paragraph are met. The records shall be retained for a minimum of 5 years and shall include all of the following: