NR 406.04(4)
(4) Exclusions from modification. None of the following changes at a stationary source constitutes a modification:
NR 406.04(4)(a)
(a) Use of alternate fuel or raw material. Use of an alternate fuel or raw material which the source is designed to burn or use if:
NR 406.04(4)(a)2.
2. The use will not cause or exacerbate the violation of an ambient air quality standard or an ambient air increment.
NR 406.04(4)(a)3.
3. The use is not prohibited by any permit, plan approval or special order applicable to the source.
NR 406.04(4)(a)5.
5. The use will not subject the source to an emission limitation or emission standard under section 112 of the Act (
42 USC 7412), excluding section 112 (d) (5) or (r) (
42 USC 7412 (d) (5) or (r)) and excluding engines certified to meet the emission standards in
40 CFR part 60, subpart IIII or JJJJ for each fuel used.
NR 406.04(4)(b)
(b)
RACT compliance. A change to a permit condition needed to assure compliance with a new or revised RACT rule, a change at a source which is made primarily for the purpose of complying with the requirements of a RACT compliance plan approved under chs.
NR 419 to
425, or a VOC RACT variance approved under s.
NR 436.05, if the change does not cause or exacerbate the violation of an ambient air quality standard or ambient air increment for any air contaminant other than ozone.
NR 406.04(4)(c)1.1. The resumption of operation of a source after a period of closure if the existing equipment was continuously included in the department's emissions inventory as an existing source covered by plans submitted under s.
285.11 (6), Stats.
NR 406.04(4)(c)2.
2. The resumption of operation of a source after a period of closure if the source was never included and never required to be included in the emissions inventory as an existing source covered by plans submitted under s.
285.11 (6), Stats., and the resumption of operation of the source will not cause or exacerbate the violation of an ambient air quality standard or an ambient air increment, will not result in the emission of a new air contaminant and is not prohibited by any permit, plan approval or special order applicable to the source.
NR 406.04(4)(d)
(d) Increase in production rate. An increase in production rate if:
NR 406.04(4)(d)1.
1. The increased production rate does not exceed the design capacity of the source.
NR 406.04(4)(d)2.
2. The production rate increase does not require any change to existing equipment.
NR 406.04(4)(d)3.
3. The increase is not prohibited by any permit, plan approval or special order applicable to the source.
NR 406.04(4)(d)4.
4. The increase will not cause or exacerbate the violation of an ambient air quality standard or ambient air increment or violate an emission limit.
NR 406.04(4)(e)
(e) Increase in hours of operation. An increase in hours of operation if:
NR 406.04(4)(e)1.
1. The increase is not prohibited by any permit, plan approval or special order applicable to the source.
NR 406.04(4)(e)2.
2. The increase will not cause or exacerbate the violation of an ambient air quality standard or ambient air increment or violate an emission limit.
NR 406.04(4)(e)3.
3. The change is not subject to an emission limitation or emission standard under section 111 or 112 of the Act (
42 USC 7411 or
7412), excluding section 112 (d) (5) or (r) (
42 USC 7412 (d) (5) or (r)).
NR 406.04(4)(f)
(f) Change of ownership. A change in ownership of a source.
NR 406.04(4)(g)
(g) Routine maintenance or repair. The routine maintenance or repair of a source.
NR 406.04(4)(h)
(h) Change to process lines emitting VOCs. A change in a method of operation of a process line subject to s.
NR 424.03 (2) (c) that meets all of the following criteria:
NR 406.04(4)(h)1.
1. The change does not result in annual potential VOC emissions from the process line which exceed the currently allowed annual potential VOC emissions based on conditions established under s.
NR 424.03 (2) (c).
NR 406.04 Note
Note: The permittee shall continue to comply with the conditions established under s.
NR 424.03 (2) (c) in its construction or operation permit until the permit is revised.
NR 406.04(4)(i)
(i) Change to use a clean fuel. A change to an external combustion furnace to allow for the combustion of a clean fuel that meets all of the following requirements:
NR 406.04(4)(i)1.
1. The external combustion furnace has a maximum heat input capacity of no greater than 10 mmBtu/hour if the ability to combust distillate oil is being added and 25 mmBtu/hour if the ability to combust natural gas or propane is being added.
NR 406.04(4)(i)2.
2. The use of the new fuel does not cause or exacerbate the exceedance of any ambient air quality standard or increment in ch.
NR 404.
NR 406.04(4)(j)
(j) Other changes. A change where all of the following conditions are met:
NR 406.04(4)(j)1.
1. The change is not prohibited by any permit, plan approval or special order applicable to the source.
NR 406.04(5)(a)
(a) In addition to the approved relocated sources which are exempt from the need for an additional permit under s.
285.60 (5), Stats., and the relocation of an emissions unit within the contiguous property of an attainment area major source, no construction permit is required for the relocation of an emissions unit within the contiguous property of a minor source or a nonattainment area major source if all of the following conditions are met:
NR 406.04(5)(a)1.
1. The relocation of the emissions unit is not prohibited by any permit, plan approval or special order applicable to the source.
NR 406.04(5)(a)4.
4. The emissions unit's stack height or stack gas exit velocity or temperature will not be decreased.
NR 406.04(5)(b)
(b) If the criteria in par.
(a) 1.,
2. and
3. are met but the emissions unit's stack height or stack gas exit velocity or temperature will be decreased, no construction permit is required for the relocation of the emissions unit if the allowable emissions from the source will not cause or exacerbate the violation of an ambient air quality standard or ambient air increment.
NR 406.04(6)
(6) Exempt replacements. No construction permit is required for the replacement of a source if all of the following conditions are met:
NR 406.04(6)(a)
(a) The replacement is for only a portion of a basic emissions unit.
NR 406.04(6)(b)
(b) Such replacement is not prohibited by any permit, plan approval or special order applicable to the source.
NR 406.04(6)(c)
(c) The essential components of the basic emissions unit are not replaced through several partial replacements within a 12-month period.
NR 406.04(7)
(7) Conditions for specific exemptions. To be eligible for a specific exemption under sub.
(1) (a) 5.,
(ce),
(cm),
(d),
(e),
(g),
(gm),
(h),
(j),
(m),
(o),
(w),
(y) or
(z), the owner or operator of a direct stationary source shall keep and maintain records, for a minimum of 5 years, of materials used, emissions, or production rates, that are adequate to demonstrate that the source qualifies for the exemption. Any direct stationary source that ever exceeds any level listed in sub.
(1) (a) 5.,
(ce),
(cm),
(d),
(e),
(g),
(gm),
(h),
(j),
(m),
(o),
(w),
(y) or
(z) is not thereafter eligible for the exemption under that subsection.
NR 406.04 History
History: Cr.
Register, March, 1972, No. 195, eff. 4-1-72; r. and recr.
Register, June, 1975, No. 234, eff. 7-1-75; am. 1), renum. 2) and (3) to be (3) and (4) and am., cr. (2),
Register, April, 1977, No. 256, eff. 5-1-77; r. and recr.
Register, April, 1983, No. 328, eff. 5-1-83; reprinted to correct error in (2) (a) 8.,
Register, July, 1983, No. 331; renum. from NR 154.04 (2) to (6),
Register, September, 1986, No. 369, eff. 10-1-86; am. (1) (intro.), (e) and (f), (2) (intro.) and (g), (4) (a) (intro.), r. (1) (m) to (o), renum. (3) (intro.), (a) to (c), (7) (a) to (c) to be (4) (intro.), (e) 1. to 3., NR 406.07 (1) and (2) and NR 406.04 (7) and am. (4) (intro.), (e) 3., NR 406.07 and NR 406.04 (7), cr. (4) (e) (intro.),
Register, April, 1988, No. 388, eff. 5-1-88; r. (2) (e) and (4) (d), renum. (2) (d), (f), (g) and (4) (e) to be (2) (e), (g), (h) and (4) (d) and am. (2) (g), cr. (2) (d), (f), (3) and (4) (a) 4., am. (4) (a) 2. and 3.,
Register, September, 1988, No. 393, eff. 10-1-88; cr. (2) (cm),
Register, December, 1988, No. 396, eff. 1-1-89; cr. (1) (m), am. (1) (a) 1. to 3., (g), (h), and (j), (2) (b), (c), (cm), (d), (e) 1. and 5., (f) 1. to 3. and (g), (7) (a), (b) and (c) 1. and 5.,
Register, August, 1991, No. 428, eff. 9-1-91; cr. (1) (n),
Register, October, 1991, No. 430, eff. 11-1-91; correction in (1) (a) and (b), (4) (d) 2. made under s. 13.93 (2m) (b) 7., Stats.,
Register, October, 1991, No. 430; correction in (1) (a) and (n) made under s. 13.93 (2m) (b) 1. and 7., Stats.,
Register, May, 1992, No. 437; emerg. am. (1) (intro.), (a) (intro.) and 5., (b), (c), (e), (g), (h), (j) and (l), (2), (4) (intro.) to (c), (5) and (6) (intro.), cr. (1) (lm), (4) (e) to (g), r. and recr. (4) (d), r. (7), eff. 11-15-92; am. (1) (intro.), (a) (intro.) and 5., (b), (c), (e), (g), (h), (j) and (l), (2), (4) (intro.) to (c), (5) (a) (intro.), (b) and (6) (intro.), r. (1) (d) and (7), cr. (2) (i), (4) (a) 5. and 6., (e) to (g), r. and recr. (4) (d),
Register, May, 1993, No. 449, eff. 6-1-93; corrections made under s. 13.93 (2m) (b) 12., Stats.,
Register, May, 1993, No. 449; cr. (1) (d), (o) to (w), am. (1) (e) and (f),
Register, December, 1993, No. 456, eff. 1-1-94; cr. (1) (x) to (zb),
Register, June, 1994, No. 462, eff. 7-1-94; am. (1) (m) (intro.) to 3., r. (1) (m) 5., renum. (1) (m) 6. to 10. to be 5. to 9. and am. 7. and 9.,
Register, September, 1994, No. 465, eff. 10-1-94; am. (2) (f) 3., (3) (a), cr. (2) (f) 3m.,
Register, December, 1994, No. 468, eff. 1-1-95; am. (1) (n) 2. c.,
Register, February, 1995, No. 470, eff. 3-1-95; am. (1) (a) 5., re. and recr. (1) (r),
Register, June, 1995, No. 474, eff. 7-1-95; am. (1) (m) (intro.),
Register, August, 1995, No. 476, eff. 9-1-95; am. (1) (intro.), (g), (h), (j), (2) (intro.), (c), (f) 3m., (h), (i) and (4) (a) 6., cr. (7),
Register, December, 1995, No. 480, eff. 1-1-96; am. (1) (g), (i) 1. (intro.) (m) 9., (n) (intro.), 2., (2) (i), (3) (c), (4) (a) 4., 5., 6., (5) (a) (intro.), (6) (intro.),
Register, December, 1996, No. 492, eff. 1-1-97; am. (1) (o) and (p) and cr. (1) (om) and (pm),
Register, March, 1997, No. 495, eff. 4-1-97; cr. (1) (rm),
Register, September, 1997, No. 501, eff. 10‐1‐97; am. (1) (c) and (7), cr. (1) (ce), (cm), (i) 1. c., (zc) and (zg); r. (2) (g),
Register, December, 1997, No. 504, eff. 1-1-98; cr. (intro.) and (4) (h); am. (1) (intro.), (a) (intro.), 2., 5., (g), (h) and (j); renum. (1) (i) 1. (intro.) and a. to c. to be (1) (i) (intro.) and 1. to 3.; renum. and am. (1) (i) 2. to be (1) (i) 4. and (2) (i) to be (2) (h); r. (2) (e) and (h) and r. and recr. (4) (intro.),
Register, October, 1999, No. 526, eff. 11-1-99; cr. (1) (gm), am. (7),
Register, January, 2001, No. 541, eff. 2-1-01; correction in (7) made under s. 13.93 (2m) (b) 7., Stats.,
Register June 2004 No. 582;
CR 02-097: am. (2) (f) 1., (3) (a) and (c), cr. (3) (e), r. and recr. (2) (f) 2. and 3., r. (2) (f) 3m. and (4) (a) 4., renum. (4) (a) 5. and 6. to be 4. and 5. and am. 4.,
Register June 2004 No. 582, eff. 7-1-04;
CR 01-081: am (intro.)
Register September 2004 No. 585, eff. 10-1-04;
CR 04-107: r. (1) (c), am. (1) (ce), (cm) and (m) (intro.), cr. (2m)
Register August 2005 No. 596, eff. 9-1-05;
CR 06-047: cr. (1) (zh), (1q), (4) (h) and (i), renum. (4) (h) to be (4) (j),
Register May 2007 No. 617, eff. 6-1-07; corrections in (1) (a) and (b) made under s. 13.93 (2m) (b) 7., Stats.,
Register May 2007 No. 617;
CR 06-019: cr. (1f) and (1k)
Register June 2007 No. 618, eff. 7-1-07;
CR 07-040: am. (2m) (b), cr. (2m) (b) (note)
Register April 2008 No. 628, eff. 5-1-08;
CR 07-076: am. (3) (e)
Register July 2008 No. 631, eff. 8-1-08;
CR 07-036: am. (intro.)
Register November 2008 No. 635, eff. 12-1-08;
CR 04-023: cr. (1) (zi)
Register December 2008 No. 636, eff. 1-1-09;
CR 09-020: am. (1f) (b), (1k) (b), (1q) (intro.), (g), (2) (h), (4) (a) 5., (h) 2., (i) 3., (j) 3.
Register January 2010 No. 649, eff. 2-1-10;
CR 10-050: am (1) (n) (intro.), 1., 2. (intro.), cr. (2) (cs)
Register November 2010 No. 659, eff. 12-1-10;
2011 Wis. Act 122: r. in part (3) (e) eff. 3-22-12;
CR 15-005: renum. (1) (w) to (1) (w) (intro.) and am., cr. (1) (w) 1., 2.
Register November 2015 No. 719, eff. 12-1-15;
CR 19-015: cr. (1) (a) 4m., (bm), am. (1) (i) (intro.), 2., 3., renum. (1) (i) 4. to (1) (i) 4. (intro.), a., b., c., and am. (intro.), am. (1) (m) (intro.), (zg) 1., r. (1f) (c), cr. (1f) (f), am. (1k) (intro.), (1q) (f), (g), (2) (h), (4) (a) 5., (b), cr. (4) (e) 3., am. (4) (h) 2., (j) 2., (7) Register September 2020 No. 777, eff. 10-1-20. NR 406.07
NR 406.07
Scope of permit exemption. NR 406.07(1)(1)
Exemption or the granting of an exemption under this chapter from the requirement to obtain a permit does not relieve any person from compliance with the emission limitations of chs.
NR 400 to
499, the air quality requirements of ch.
NR 404, the reporting requirements of ch.
NR 438, or with any other provision of law.
NR 406.07(2)
(2) If a source undergoes a modification which is exempt from the requirement to obtain a construction permit under s.
NR 406.04 (4), it will not be treated as a modified source for purposes of the emission limitations under chs.
NR 400 to
499.
NR 406.07(3)
(3) A source that undergoes a modification which is exempt from the requirement to obtain a construction permit under s.
NR 406.04 (1f) or
(1k) shall be treated as a new or modified source for the purposes of the emission limitations under chs.
NR 400 to
499 unless the modification is excluded from being considered a modification under s.
NR 406.04 (4).
NR 406.07 History
History: Renum. from NR 406.04 (7) (a) and (b),
Register, April, 1988, No. 388, eff. 5-1-88; am. (2),
Register, September, 1988, No. 393, eff. 10-1-88; emerg. am. (2), eff. 11-15-92; am.,
Register, May, 1993, No. 449, eff. 6-1-93;
CR 06-019: cr. (3)
Register June 2007 No. 618, eff. 7-1-07.
NR 406.075
NR 406.075
Federally enforceable requirements. NR 406.075(1)(1)
Except as provided in sub.
(2), all terms and conditions in a construction permit, including any provisions designed to limit a stationary source's potential to emit, are federally enforceable by the administrator under section 113 of the Act (
42 USC 7413).
NR 406.075(2)
(2) Notwithstanding sub.
(1), the department shall specifically designate as not federally enforceable any terms and conditions included in the permit that are not required under the Act, under any of the federal regulations implementing the Act or under the state implementation plan.
NR 406.075 History
History: CR 04-106: cr.
Register November 2005 No. 599, eff. 12-1-05.
NR 406.08
NR 406.08
Action on permit applications. NR 406.08(1)(1)
This section applies to actions on permits for which applications are received on or after August 1, 2015. This section does not apply to actions on applications for permits where the source commences construction, reconstruction, replacement, relocation, or modification prior to issuance of a construction permit. This section does not apply to construction permits which are subject to the notice, comment, and hearing provisions of s.
293.43,
295.45, or
295.57, Stats.
NR 406.08(2)(a)(a) The department shall make a determination under s.
285.61 (8), Stats., on a permit application within 205 business days of receipt of a complete application for construction or modification of a major stationary source as defined in s.
NR 405.02 (22) or a major source as defined in s.
NR 408.02 (21), unless compliance with s.
1.11, Stats., requires a longer time. For a major source that is located in an attainment area, the department shall complete its responsibilities under s.
1.11, Stats., within one year.
NR 406.08(2)(b)
(b) The department shall make a determination under s.
285.61 (8), Stats., on a permit application within 145 business days of receipt of a complete application for construction or modification of any stationary source not described in par.
(a), unless compliance with s.
1.11, Stats., requires a longer time.
NR 406.08(3)
(3) If the department does not make a determination within the applicable time period specified in sub.
(2), the department may not impose an application fee for the permit under s.
NR 410.03, and shall refund any application fee submitted with the application.
NR 406.08(4)(a)(a) The Forest County Potawatomi Community shall have the opportunity to review best available control technology (BACT) or maximum achievable control technology (MACT) determinations made by the department for any new or modified source that is either of the following:
NR 406.08(4)(a)1.
1. Wholly or partially locating or located within a radius of 22.25 miles from the geographic center of the FCPC Class I area, as identified in s.
NR 400.02 (66m).
NR 406.08(4)(a)2.
2. Wholly or partially locating or located within 62 miles of the FCPC Class I area, and has a modeled impact exceeding 1 microgram per cubic meter averaged over any 24-hour period for mercury or for any regulated pollutant that has an ambient air quality standard in s.
NR 404.04.
NR 406.08(4)(b)
(b) Disagreements between the department and the Forest County Potawatomi Community regarding BACT or MACT determinations are subject to dispute resolution but the department shall act on a permit application according to time period requirements under ss.
285.61 and
285.62, Stats.
NR 406.08 Note
Note: The geographic center of the FCPC Class I area, as identified in s.
NR 400.02 (66m), was determined by finding the center of a rectangle placed around the outer most portions of the Class I area. The 22.25-mile radius was determined by adding 10 miles to the distance of the outermost portion of the FCPC Class I area from the geographic center of the FCPC Class I area.
NR 406.08 Note
The Department has determined that any source wholly located outside of a circle with a radius of 74.25 miles from the geographic center of the FCPC Class I area is not within 62 miles of the FCPC Class I area. The 74.25-mile radius was determined by adding 62 miles to the distance of the outermost portion of the FCPC Class I area from the geographic center of the FCPC Class I area. It is the Department's intent that this circle be used as a screening tool for determining applicability of this subsection, and evidence that a source is wholly outside of this circle will be accepted as proof that the source is not within 62 miles of the FCPC Class I area.
NR 406.08 Note
The relationship between the State of Wisconsin and the Forest County Potawatomi Community with regard to the FCPC Class I area is established in a 1999 Class I Final Agreement. Dispute resolution follows a process agreed to by the Department and the Forest County Potawatomi Community pursuant to the
Final Agreement.
NR 406.08 Note
The Final Agreement and a map showing the approximate 22.25-mile and 74.25-mile radii are available from the Department upon request, or may be found on the Department's web site.
NR 406.08 History
History: Cr.
Register, September, 1986, No. 369, eff. 10-1-86; emerg. renum. from NR 408.025, eff. 11-15-92; renum. from NR 408.025,
Register, May, 1993, No. 449, eff. 6-1-93; r. and recr.,
Register, August, 2000, No. 536, eff. 9-1-00;
CR 10-048: cr. (4)
Register November 2010 No. 659, eff. 12-1-10;
CR 13-057: am. (1)
Register July 2015 No. 715, eff. 8-1-15;
CR 15-005: am. (1)
Register November 2015 No. 719, eff. 12-1-15.
NR 406.09
NR 406.09
Air quality analysis. The air quality impact of a proposed stationary source will be determined at such locations where members of the public might reasonably be exposed for time periods consistent with the ambient air quality standards for the pollutants for which analysis is carried out.
NR 406.09 History
History: Renum. from NR 154.05 (8) and am.
Register, September, 1986, No. 369, eff. 10-1-86; emerg. renum. from NR 408.03, eff. 11-15-92; renum. from NR 408.03,
Register, May, 1993, No. 449, eff. 6-1-93.
NR 406.10
NR 406.10
Violations. Any owner or operator who fails to construct a stationary source in accordance with the application as approved by the department; any owner or operator who fails to construct and operate a stationary source in accordance with conditions imposed by the department under s.
285.65, Stats.; any owner or operator who modifies a stationary source in violation of conditions imposed by the department under s.
285.65, Stats.; or any owner or operator who commences construction, reconstruction, replacement, relocation, or modification of a stationary source without applying for and receiving a permit as required under this chapter or ch.
NR 405 or
408 shall be considered in violation of s.
285.60, Stats.
NR 406.10 History
History: Renum. from
s. NR 154.05 (1) and am.
Register, September, 1986, No. 369, eff. 10-1-86; emerg. renum. from NR 408.04 and am., eff. 11-15-92; renum. from NR 408.04 and am.,
Register, May, 1993, No. 449, eff. 6-1-93;
CR 15-005: am.
Register November 2015 No. 719, eff. 12-1-15.
NR 406.11
NR 406.11
Construction permit revision, suspension and revocation. NR 406.11(1)(1)
After providing 21 days written notice to the permit holder and to the persons listed under s.
285.61 (5) (a) 2. to
5., Stats., except as provided in par.
(h), the department may revise, suspend, revoke, or withdraw a source from coverage under a construction permit, part of that permit, or the conditions of that permit. Permit revision, suspension, withdrawal from coverage, or revocation may occur for any of the following reasons:
NR 406.11(1)(a)
(a) Violation. A significant or recurring violation of any condition of the permit which causes or exacerbates a violation of any ambient air quality standard or ambient air increment or which causes air pollution.
NR 406.11(1)(b)
(b) Misrepresentation or deliberate failure to disclose. Any misrepresentation or a deliberate failure to disclose fully all relevant, significant facts when obtaining the permit.
NR 406.11(1)(c)
(c) Department determination. A determination by the department that the permit must be revised or coverage withdrawn to assure compliance with the applicable requirements.
NR 406.11(1)(d)
(d) Request. A request by the permit holder to revise, suspend or revoke the permit.
NR 406.11(1)(e)
(e) Failure to pay fees. An intentional failure by the permit holder to pay in full the fees required under ch.
NR 410, except the department may not suspend or revoke the permit for failure to pay fees while those fees are being disputed under s.
NR 410.04 (6).
NR 406.11(1)(f)
(f) Failure to file annual emission inventory reports. An intentional failure by the permit holder to file annual emission inventory reports required under ch.
NR 438.
NR 406.11(1)(g)1.1. A determination by the department that the emissions unit or units covered under a general or registration construction permit cause or exacerbate, or may cause or exacerbate, a violation of any ambient air quality standard or ambient air increment. The determination shall be made through an air quality assessment using the following procedures, as appropriate, which may be conducted after the determination that the source was covered under the general or registration construction permit.
NR 406.11(1)(g)1.a.
a. For general construction permits, the department shall use criteria, methodologies or modeling consistent with criteria, methodologies or modeling used for any air quality analysis conducted under s.
NR 406.16 (1) (c).
NR 406.11(1)(g)1.b.
b. For registration construction permits, the department shall use either an air dispersion model using maximum actual emissions on an annual or hourly basis or criteria, methodologies or modeling consistent with criteria, methodologies or modeling used for any air quality analysis conducted under s.
NR 406.17 (1) (b).
NR 406.11(1)(g)2.
2. Notwithstanding a determination made under subd.
1., the owner or operator will be deemed to be in compliance with the requirement to obtain a construction permit until the department takes final action on a subsequent application for a construction permit, if the application is submitted to the department by the owner or operator within 30 days after the department notifies the owner or operator of its determination under this paragraph and the owner or operator is in compliance with the otherwise applicable general or registration construction permit from the time the determination is made under subd.
1. until the department takes final action under this subdivision.
