ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING AND AMENDING, AMENDING, AND CREATING RULES
The Wisconsin Natural Resources Board adopts an order to repeal NR 400.02 (56), 406.16 (2) (d), 406.17 (3) (e), 407.05 Table 2, 407.10 (5) (d), and 407.105 (4) (f); to renumber and amend NR 406.04 (1) (w) and 407.03 (1) (u); to amend NR 406.08 (1), 406.10, 406.11 (1) (intro.), 407.02 (4) (b) 27., 407.04 (1) (intro.) and (b) 3., 407.05 (4) (c) 1., 9. a. and b., and 10, 407.05 Table 3, 407.09 (1) (b) 1. and (c) 1. b., 407.10 (5) (b) and (c), 407.105 (6) (b) and (c), 407.15 (intro.) and (7), and 445.09 (1) (c) and (2); and to create NR 400.02 (136m), 406.03 (1e) and (Note), 406.04 (1) (w) 1. and 2., 406.11 (1) (h), 407.02 (4m) and (6) (a) 3. (Note), 407.03 (1) (u) 1. and 2. and (1s) and (Notes), 407.09 (1) (b) 3. and 4., 407.14 (1m) (f), and 445.09 (3) (d) relating to increasing the operational efficiency of and simplifying the air permit process and affecting small business.
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Analysis Prepared by the Department of Natural Resources
3. Explanation of agency authority: Section 285.11 (1), Stats., requires the Department to promulgate rules consistent with ch. 285, Stats. Section 285.11 (6), Stats., requires the Department to develop a state implementation plan for the control of air pollution. Section 285.11 (16), Stats., requires the Department to promulgate rules consistent with but no more restrictive than the federal clean air act that specify the amounts of emissions that result in a stationary source being classified as a major source. Section 285.27 (2) gives the Department authority to promulgate emission standards for hazardous air contaminants. Section 285.60 (6) Stats., allows the Department to promulgate rules to exempt types of stationary sources from the requirement to get a construction permit if the potential emissions from the sources do not present a significant hazard to public health, safety, welfare or to the environment. Section 285.66 (2) gives the Department the authority to specify that an operation permit for a minor source does not expire. Section 285.66 (2) (c) requires the Department to promulgate rules to exempt natural minor sources from operation permit requirements. Section 285.67, Stats., requires the Department to promulgate rules establishing criteria and procedures for revocation of air pollution control permits. 4. Related statute or rule: There are no related statutes or rules not included above.
5. Plain language analysis: The primary objective of the proposed rules is to improve operational efficiency for, and to simplify the permitting processes administered under chs. NR 406 and 407, while maintaining consistency with the federal Clean Air Act (CAA). Specific proposed rule changes are described below. SECTIONS 1 and 2 replace the existing definition of “emergency electric generator” with a broader definition of “restricted use reciprocating internal combustion engine.” This change aligns the state and federal definitions of and requirements for emergency and other limited use generators.
SECTION 3 creates an exclusion for minor sources that allows specified pre-construction activities to proceed while construction permit issuance is pending. The activities included are those most often requested and approved in construction permit waivers.
SECTIONS 4 and 5 replace for construction permits, and SECTIONS 15 and 16 replace for operation permits, the existing exemptions for emergency electric generators with exemptions for restricted use reciprocating internal combustion engines. These changes align the existing exemptions with the federal regulations affecting emergency and other limited use engines of all sizes and at all types of facilities.
SECTION 8 and 9 amend the procedures for revoking construction permits and SECTION 29 amends the procedures for revoking non-part 70 source operation permits to allow the department to revoke such permits without providing written notice and without waiting 21 days in cases where a facility has closed.
SECTIONS 13 defines a natural minor source for purposes of the operation permit program and SECTION 16 creates an exemption fulfilling the statutory requirement in s. 285.60 (6) (c), Stats., to exempt natural minor sources from the requirement to obtain an operation permit. SECTIONS 22 and 28 amend existing rules to specify that non-part 70 source operation permits do not expire. The department may reopen a non-part 70 source operation permit to set an expiring term for cause.
SECTIONS 30 and 31 amend the existing rules to allow a source to burn high sulfur diesel fuel as long as emissions are controlled by the best available control technology. This eliminates a conflict between state and federal rules affecting large marine engine testing and allows flexibility to test other engines that will be marketed in overseas locations where high sulfur fuel is still used.
All other SECTIONS involve changes to wording, removal of outdated tables and requirements, correction of code citations and references, addition of clarifying notes, and other changes for consistency with federal regulations.
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:
• Changes to s. NR 445.09 are necessary because the current state rule is in direct conflict with federal law requiring marine engines to be tested using diesel with a higher sulfur content than allowed by state rule. • Two federal standards affecting reciprocating internal combustion engines defined several types of limited use engines that are exempt from these federal standards. This proposed rule replaces the state’s definition and exemptions for “emergency electric generators” with a new definition and exemptions that includes emergency and other limited use engines as defined in the federal standards.
• Changes are also being proposed to the definition of major source in s. NR 407.02 (4) (b) 27., so that wording exactly mirrors that in the federal definition. • Finally, a change proposed for s. NR 407.15 changes the notification waiting period for suspension, revocation, or withdrawal of coverage of a part 70 source from 21 to 30 days as required by 40 CFR Part 70. Minor source construction permitting and non-part 70 source operation permitting are not specifically regulated under the federal Clean Air Act. The natural minor operation permit exemption, changes allowing preconstruction activities prior to minor source construction permit issuance, elimination of an expiring term for non-part 70 operation permits, and changes to revocation procedures are limited to minor sources. Other changes to chs. NR 400, 406, 407, and 445 provide consistency within the rules by removing outdated language, correcting citations, and providing clarification where appropriate. 7. Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan and Minnesota): Illinois and Minnesota are delegated states, so they are directly implementing the federal program and are not implementing their programs through a State Implementation Plan (SIP), as Wisconsin does. Iowa and Michigan, similar to Wisconsin, are SIP approved states, so they are also implementing a federal program, but through their own state rules. It is the goal of SIP-approved states to 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 rule changes proposed are limited to minor source construction permits and minor source operation permits. Wisconsin’s neighboring states also have minor source construction permit programs, but state programs are very dissimilar. All adjacent states provide for exemption from construction permits for certain operations and activities depending on type, size, capacity, hours of operation, emissions or other similar criteria.
All the adjacent states issue 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 all similar to Wisconsin’s. The adjacent states all offer 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: Since the Department is proposing rules consistent with federal regulations, making consistency and clarification changes, and developing rules as directed by the state legislature, the department did not make use of any factual data or analytical methodologies in the rule development.
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 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.
