Register November 2010 No. 659
Chapter NR 406
CONSTRUCTION PERMITS
NR 406.01 Applicability; purpose. NR 406.03 Permit requirements and exemptions for construction permits. NR 406.035 Establishment or distribution of plant-wide applicability limitations. NR 406.04 Direct sources exempt from construction permit requirements. NR 406.07 Scope of permit exemption. NR 406.075 Federally enforceable requirements. NR 406.08 Action on permit applications. NR 406.09 Air quality analysis. 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. 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 HistoryHistory: 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 406.02NR 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 HistoryHistory: 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 406.03NR 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 NoteNote: 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)(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 NoteNote: 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)(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)(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 NoteNote: 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 NoteNote: 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 HistoryHistory: 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 406.035NR 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 NoteNote: 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 HistoryHistory: CR 06-019: cr. Register June 2007 No. 618, eff. 7-1-07. NR 406.04NR 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.
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