SECTION 11 clarifies the requirements for the research and testing exemption indicating that the change must be temporary. This allows a consistent understanding of the appropriate use of this exemption and assures that a source does not violate the federal requirement to obtain a permit prior to commencing construction of a major source or major modification.
SECTION 11 allows simultaneous operation of permanent and temporary steam generating equipment for a short period of time to allow for coverage during startup and shutdown of the steam generating equipment under the temporary steam generating equipment exemption.
SECTIONS 10 and 13 include changes to the exemption from minor source construction permitting for sources constructing or modifying under a plant-wide applicability limitation (PAL). These changes assure that the flexibility intended by the federal PAL rules is available while assuring that changes made under a PAL comply with all applicable state and federal regulations and are protective of ambient air quality standards.
SECTION 14 clarifies that the exemption for projects evaluated for significant net emissions increase can only be requested prior to commencing construction. It also clarifies how requirements of federal rules affect the exemption, including that this exemption is only available for the modification of an existing emission unit and not for the construction of a new emission unit. These clarifications result in consistent and fair application of this exemption. In response to public comments, revisions are proposed to exclude from modification changes to permit requirements needed to comply with reasonably available control technology (RACT) rules and to make the exclusion available to all RACT and not just VOC RACT.
SECTION 15 clarifies that an increase in hours of operation does not constitute an exclusion from modification if the change is subject to certain federal requirements.
SECTION 16 clarifies that the emission increase being referred to is the maximum theoretical emissions increase. This clarification ensures fair and consistent use of this exclusion from modification.
SECTION 19 amends the definition of “synthetic minor source” to match the federal policy and guidance on the types of actions and permit conditions necessary to establish a facility as a synthetic minor source. The department considered adding language to state that synthetic minor permit conditions must be federally enforceable or legally and practicably enforceable by a State or local air pollution control agency. However, in Clean Air Implementation Project v. EPA, No. 96-1224 (D.C. Cir. June 28, 1996), the court vacated and remanded the requirement for federal enforceability for PTE limits under 40 C.F.R. Part 70. In a July 10, 1998 memorandum titled “Second Extension of January 25, 1995 Potential to Emit Transition Policy and Clarification of Interim Policy,” EPA stated that the term “federally enforceable” in section 70.2 should now be read to mean “federally enforceable or legally and practicably enforceable by a State or local air pollution control agency” pending any additional rulemaking by the EPA. As stated in the August 1996 memorandum, EPA interprets the court order vacating the part 70 definition as not affecting any requirement for federal enforceability in existing State rules and programs. Therefore, the department will not add the additional language to the definition at this time and will continue to follow EPA’s policy. SECTION 20 clarifies that the emissions from facilities using the exemption for sources with a combination of emission units in specified categories must not exceed Title V or Part 70 permit thresholds and clarifies that a combination of categories is allowed under section (1) (t) of the rule. This clarification assures consistent and fair application of this operation permit exemption.
SECTIONS 27 and 30 clarify that only typographical errors that have no material effect on the permit may be corrected by administrative revision. This assures consistent application of the administrative revision process for changes that are administrative in nature and assures that substantive changes undergo appropriate public notice and public comment.
SECTION 34 adds references to state statutes for clarification.
Other proposed revisions to clean up outdated language, correct rule language, and to maintain consistency with federal rules
SECTION 2 adds 1,1,2,2-tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane (HFE-347pcf2) and cis-1,1,1,4,4,4-hexafluorobut-2-ene (HFO-1336mzz-Z) to the list of substances excluded from the definition of volatile organic compounds. This change aligns the state and federal definitions of volatile organic compounds.
SECTION 16 includes the specific exemptions listed in s. NR 406.04(1) (a) 5. and (1) (w) in the list of specific exemptions requiring maintenance of records. This demonstrates that the exempt source’s operational design is limited in a way that is federally and practicably enforceable and clarifies that if records are not kept the source is no longer eligible for the exemption. The qualification date ranges are being removed since they have all passed and records need only be maintained for a minimum of five years. These changes assure consistency among all exemptions that rely on limiting operational design elements that require records in order to be considered practically enforceable, such as limits on the type or amount of fuel or material throughput or hours of operation. SECTION 18 removes the note referencing previous EPA guidance on determining when a source can become an area source for the purposes of determining applicability with Federal Hazardous Air Pollution Standards, referred to as “once in always in” policy. On January 25, 2018, EPA issued a guidance memorandum withdrawing the “once in always in” policy.
SECTION 23 corrects an error by creating an exemption threshold for PM10 which was previously not included for the general category of exempt sources. Inclusion of the exemption threshold for PM10 makes the general categories of exempt sources in s. NR 407.03(2) consistent with those in s. NR 406.04(2). SECTIONS 28 and 29 remove eligibility criteria that was overly limiting or otherwise not able to be used based on other statutory requirements.
6.
Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: Several of the proposed rule changes are being made to align existing state rules with federal regulations. These include:
Amending the list of activities excluded from commencing construction in NR 406.03 (1e) to match federal guidelines.
Clarifying when being subject to regulations from sections 111 (New Source Performance Standards - NSPS) or 112 (National Emission Standards for Hazardous Air Pollutants – NESHAPs) of the Act (42 USC 7411 or 7412) disqualify activities or emissions units from being exempt.
Aligning the definition of synthetic minor source in s. NR 407.02(9) with federal policy and guidance on the types of actions and permit conditions necessary to establish a synthetic minor source.7.
Comparison with Similar Rules in Adjacent States (Illinois, Iowa, Michigan and Minnesota): Adjacent states implement federal regulations using one of two methods. Illinois is a delegated state directly implementing the federal program. Iowa, Minnesota, and Michigan, like Wisconsin, implement the federal program through approved State Implementation Plans (SIP) and their own state rules. SIP-approved states must implement federal programs in accordance with the regulations set out in federal code. The portions of this rule that are being changed to align with federal regulations result in rules similar to those in neighboring states.
Other proposed rule changes are limited to minor source construction permits and minor source operation permits. Wisconsin’s neighboring states also have minor source construction permit programs. Each state’s program varies, but all adjacent states provide for exemptions from construction permits for certain types of sources, operations and activities depending on type, size, capacity, hours of operation, emissions or other similar criteria.
Each adjacent state also issues minor source operation permits. Generally, these are issued to facilities requesting federally enforceable conditions limiting emissions to less than major source thresholds. These “synthetic minor” operation permit programs are similar to Wisconsin’s. Each adjacent state offers different types of exemptions from operation permitting for natural minor sources. The majority of natural minor sources in neighboring states are not required to obtain an operation permit.
8.
Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The department is proposing rules consistent with federal regulations, making consistency and clarification changes, and developing rules as directed by the state legislature, which did not require use of any factual data or analytical methodologies. 9.
Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: The economic impact of the proposed rules is expected to be minimal. In most cases, the changes proposed will result in clarity and cost savings for business, especially for small business.10.
Effect on Small Business (initial regulatory flexibility analysis): Small businesses with air pollution emissions will be affected by the proposed rules. In general, the revisions in this rule package provide clarification for applicability of permit exemptions. Small businesses that may not have dedicated environmental staff will be able to understand and take advantage of clarified permit exemptions and other exclusions in the rules. Other changes streamline processes or allow for implementation of online reporting and application submittals, which also provide a cost savings for small businesses.The proposed rules will allow all Wisconsin businesses, including small businesses, seeking minor construction permits to begin certain preconstruction activities prior to permit issuance. The ability to begin certain preconstruction activities before receiving a permit can be economically beneficial to some businesses.
Some small businesses may need assistance in understanding what rules apply and which exemptions they qualify for. The Air Program’s Small Business Environmental Assistance Program is available to help small businesses understand what permits and requirements apply and what options are available to demonstrate compliance.
11.
Agency Contact Person: Kristin L. Hart, Chief – Permits and Stationary Source Modeling Section,12.
Place where comments are to be submitted and deadline for submission: A public hearing was held on April 17, 2019. The department accepted comments by regular mail, email and at the public hearing. The comment period ended on April 24, 2019.
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SECTION 1. NR 400.02 (130), (136m) (intro.), and (b) are amended to read:
NR 400.02 (130) “Reconstruction” means the removal of components of a stationary source and the substitution of those components with similar new components to such an extent that the fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable entirely new stationary source. The term “reconstruction” does not apply to minor or indirect sources.
(136m) (intro.) “Restricted use reciprocating internal combustion engine” or “restricted use RICE” means a reciprocating internal combustion engine stationary RICE that is one of the following:
(b) Operated in accordance with the definition of limited use stationary RICE in 40 CFR 63.6675. SECTION 2. NR 400.02 (136m) (b) (Note), (136r), and (162) (a) 61. and 62. are created to read:
NR 400.02 (136m) (b) Note: An internal combustion engine that meets the definition of non-road engine in 40 CFR 63.6675 is not a stationary RICE. (136r) “RICE” means a reciprocating internal combustion engine.
(162) (a) 61. 1,1,2,2-tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane (HFE-347pcf2).
62. cis-1,1,1,4,4,4-hexafluorobut-2-ene (HFO-1336mzz-Z)
SECTION 3. NR 406.02 (6) is amended to read:
NR 406.02 (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.
SECTION 4. NR 406.03 (1e) (intro.) is amended to read:
NR 406.03 (1e) (intro.) 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 that, prior to issuance of a permit, would not be considered a major modification or construction of a major source under ch. NR 405 or 408, all of the following activities may be excluded when determining if construction, reconstruction, replacement, relocation, or modification has commenced: SECTION 5. NR 406.03 (1e) (a) and (b) are repealed.
SECTION 6. NR 406.03 (1e) (c) is amended to read:
NR 406.03 (1e) (c) Erecting temporary storage structures.
SECTION 7. NR 406.03 (1e) (j) is repealed.
SECTION 8. NR 406.03 (1m) (a) and (b), (2) (b) 2.c., and (g) are amended to read:
NR 406.03 (1m) (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, if so requested by the applicant.
(b) Application materials, including construction permit waiver requests, may be submitted on paper or in an electronic format. The applicant shall submit 2 copies of all forms and other required materials, as indicated on the forms. , which are submitted on paper. The applicant shall submit one copy of all forms and other required materials, as indicated on the forms, which are submitted in an electronic format. These materials When electing to submit materials on paper, the applicant shall be submitted submit the materials to the Wisconsin Department of Natural Resources, Bureau of Air Management, PO Box 7921, Madison WI 53707−7921, Attention: Construction permits.
(2) (b) 2. c. A substantial economic or financial hardship that may preclude the project in its entirety.
(g) The department may not grant a waiver to for a source located or to be located within 10 kilometers of a Class I area under this subsection.
SECTION 9. NR 406.04 (1) (a) 4m. and (bm) are created to read:
NR 406.04 (1) (a) 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. (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:
1. The equipment is a dual-chamber incinerator that complies with all of the following:
a. The equipment is designed to incinerate not more than 500 pounds of material per hour.
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.
2. Stacks shall comply with all of the following:
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.
b. Each stack shall be located at least 500 feet from nearest property line.
c. Each stack shall have unobstructed vertical discharge when the incinerator is operated. Properly installed and maintained spark arresters are not considered obstructions.
3. The equipment shall be operated within all of the following limits:
a. The unit shall reach a minimum operating temperature of 1,400 degrees Fahrenheit prior to introducing the materials to be incinerated.
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.
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.
