ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING; AMENDING; AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal NR 406.03 (1e) (a), (b), and (j), 406.04 (1f) (c) and (Note), 407.02 (6) (a) 3. (Note), 407.11 (1) (e) and (3) (c), and NR 407.12 (1) (b) (Note) and (e); to amend NR 400.02 (130), (136m) (intro.) and (b), 406.03 (1e) (intro.), (c), (1m) (a), (b), (2) (b) 2. c., and (g), 406.04 (1) (i) (intro.), 2., 3., 4., (m) (intro.), (zg) 1., (1k) (intro.), (1q) (f), (g), (2) (h), (4) (a) 5., (h) 2., (j) 2., and (7), 406.17 (3) (d), 407.02 (9), 407.03 (1) (intro.), (1m) (a) 2., (c) 1., (2) (f) and (g), 407.05 (2) and (6), 407.105 (3) (b), 407.11 (1) (a), 407.14 (1m) (d), and 407.15 (5); and to create NR 400.02 (136m) (b) (Note), (136r), and (162) (a) 61., 406.03 (2) (gm), 406.04 (1) (a) 4m., (bm), (1f) (f) and (4) (e) 3., 407.03 (1) (a) 4m., (bm) and (2) (ba) relating to increasing the operational efficiency of and simplifying the air permit process, and affecting small business.
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 285.60 (6) Stats., allows the department to promulgate rules to exempt types of stationary sources from the requirement to obtain a construction or operation permit if the potential emissions from the sources do not present a significant hazard to public health, safety, welfare or to the environment. Section 285.67, Stats., requires the department to promulgate rules establishing criteria and procedures for revocation of air pollution control permits.
4. Related Statues or Rules: There are no related statutes or rules not listed above.
5. Plain Language Analysis: The primary objectives of the proposed rules are to improve operational efficiency for and to simplify the permitting processes administered under chs. NR 406 and 407, while remaining consistent with the federal Clean Air Act (CAA). Specific proposed rule changes are described below.
In the statement of scope for this rule, the department committed to examining several areas of the permit program to assure consistency with federal rules and for clarification and streamlining.
Revisions made under this scope statement in a previous rule package
Exemption from operation permitting for natural minor sources
Changes to s. NR 445.09 to align state and federal engine testing requirements
Removal of outdated tables and other changes to correct or clean up existing rule language
Changes to the permit exemptions for emergency generators to include emergency fire pumps
Changes to exclude certain activities from the definition of “commence construction”
Other changes to correct citations, clarify language and delete obsolete language
Areas under this scope statement that were examined but no rule revisions will be pursued
Definition of “cause or exacerbate”: The 1977 Clean Air Act Amendments created the new source review permit program, the purpose of which was to assure that construction and modification of industrial air pollution sources would not “cause or contribute” to the deterioration of air quality in a region. Wisconsin passed laws in 1979 and 1980 to implement the Clean Air Act permit program and minor source construction permit program. These laws laid out the criteria for permit issuance, including the requirement that a permit can only be issued if the department finds that the source does not “cause or exacerbate” the violation of an ambient air quality standard or ambient air increment. The 1979 statute also required the department to promulgate rules to define the cause or exacerbation of an ambient air quality standard or ambient air increment.
In August 1980, the department finalized air permit rules for construction and modification of air pollution sources and it began issuing air pollution control construction permits. Working groups were set up to discuss how to define “cause or exacerbate,” however no rule was ever promulgated to define the term. In 2012, the legislature directed the department to revisit this definition as part of a rule package aimed at finding opportunities to streamline current air permit processes. Beginning in 2013, the department held a series of meetings with internal and external stakeholders to discuss “cause or exacerbate” and reviewed the historical record of the previous attempt to define the term.
After much discussion of potential ways to define “cause or exacerbate” with both internal and external stakeholders, the department will not be proposing a definition of “cause or exacerbate.” EPA does not define its analogous term, “cause or contribute,” and EPA has consistently approved Wisconsin’s State Implementation Plans (SIP) implementing the air permit programs since 1980 without requiring the term to be defined. In addition, the department has issued thousands of permits since 1980, each of which include a finding that the source, as permitted, will not cause or exacerbate a violation of any standards or increment. Air permits undergo extensive public review and are sometimes challenged, however, the lack of a definition of “cause or exacerbate” has never been the stated reason for a permit challenge.
The air program currently uses a variety of techniques when making a finding that a source does not cause or exacerbate a violation of air standards or increment. These techniques include air quality dispersion modeling and a weight of evidence analysis that considers types of air pollutants, de minimis thresholds, ambient monitoring data, and inventories of emissions. Defining “cause or exacerbate” is not expected to provide additional streamlining to the permit process. Stakeholders expressed concern that defining the term didn’t lead to any known benefit and could point to several ways proposed definitions would have unintended consequences that could actually complicate and slow the permitting process.
Definition of shutdown: The scope statement for the rule package included examination of the current definition of “shutdown.” The requirement to define the actions or events which constitute the shutdown of a facility is required by statute and the term is already defined in s. NR 400.02 (144). After consultation with internal and external stakeholders, the department will not be proposing any changes to the definition of shutdown because there are no permit processes that would benefit from a clarification of the term, and defining the term may complicate, rather than simplify permit processes by inadvertently changing the historical implementation of the term. Also, the term is not defined in federal rules.
Administrative revisions for construction permits: The department considered creating a procedure to administratively revise construction permits mirroring the procedures for administrative revisions of operation permits in ch. NR 407. The department will not be proposing a construction permit administrative revision because the underlying statutes do not allow revision of construction permits without notice, even for administrative purposes. Since most requests for administrative revision stem from a change of ownership or a new responsible official, the department will, outside of this rulemaking, examine whether changes to construction permit cover pages, approval letters or other template documents can minimize the need for revisions of construction permits.
Revisions proposed under the scope statement included in this rule package
Definition of reconstruction.
o SECTION 1 amends the definition of “reconstruction” to include minor sources. The current definition excludes minor sources. Minor sources should be included in the definition of “reconstruction” because the term is used throughout the minor source permitting regulations.
Specific exemption for ultra-low sulfur diesel fuel for external combustions furnaces.
o SECTION 10 creates an additional construction permit exemption for external combustion furnaces that burn ultra-low sulfur distillate fuel oil. The emission levels from equipment installed under the existing exemption for external combustion equipment burning natural gas were determined and those emission levels were used to select the appropriate heat input capacity for this exemption. Equipment installed under this proposed exemption will emit at the same rate or less than equipment burning other fuels at the maximum heat input rate already exempt from construction permitting.
o SECTION 21 creates an additional operation permit exemption for external combustion furnaces that burn ultra-low sulfur distillate fuel oil. Equipment installed under this proposed exemption will emit at the same rate or less than equipment burning other fuels at the maximum heat input rate already exempt from operation permitting.
Confiscated drug exemption.
o SECTIONS 10 and 21 also create a construction and identical operation permit exemption for incineration of drugs confiscated by federal, state, or local law enforcement agencies. This exemption aligns state rules with the intent of federal rules to exclude incineration of confiscated drugs by law enforcement from federal standards covering incinerators.
The following rule language is proposed to improve operational efficiency for and to simplify the permitting processes administered under chs. NR 406 and 407, while remaining consistent with the federal Clean Air Act (CAA).
Revisions proposed for consistency of wording of exclusion from exemptions due to regulation under certain federal standards
Many permit exemptions and simplified processes are available to sources unless those sources are regulated by federal standards listed in s. 111 or 112 of the Clean Air Act. Though the purpose of this exclusion appears to be identical in most cases, the wording differs slightly in many instances. The department is proposing to consistently use the term “emission limitation or emission standard” where this exclusion is listed. This term is defined in s. 285.01(16), Wis. Stats., and “means a requirement which limits the quantity, rate or concentration of emissions of air contaminants on a continuous basis. An emission limitation or emission standard includes a requirement relating to the operation or maintenance of a source to assure continuous emission reduction.” This definition, by referring to the operation or maintenance of a source, includes work practices as long as they reduce emissions but the term would not include sources subject only to recordkeeping or reporting requirements. This maintains the historical interpretation of the language as it has been used in the specific exemptions in chs. NR 406 and 407. For consistent understanding of this exclusion, the department proposes to revise the rule to assure that the statement, wherever it appears, is always the same and will refer to a unit subject to “an emission limitation or emission standard” under section 111 or 112 of the Act. The exception is when the exclusion uses the term “triggers a regulation under.” This language is more stringent and the department proposes to leave this language unchanged.
Revisions proposed to implement electronic signature and promote electronic submittal and storage of documents
SECTIONS 8 and 25 remove the requirements to submit paper copies of application materials. This allows for streamlining through implementation of an electronic reporting system making reporting easier and encouraging timely and accurate reporting.
Revisions proposed to clarify rule applicability
SECTIONS 1 through 3 clarify that the definition of “restricted use reciprocating internal combustion engine” refers to stationary engines. Stakeholders noted that non-road engines are not covered by the stationary source permit programs in chs. NR 406 and 407. The word “stationary” was added to clarify that the rule applies to “stationary engines.”
SECTIONS 4 through 7 revise the list of activities that do not constitute commencing construction for purposes of minor source construction permitting to align with the federal definition and guidance on activities that do not constitute commencing construction. These changes are proposed to address a determination of incompleteness by USEPA regarding the state’s submittal of the current rule to EPA for inclusion into the State Implementation Plan.
SECTION 8 removes from the construction permit waiver rule, language restricting economic or financial hardship that could “preclude the project in its entirety,” thus clarifying the circumstances under which a facility can apply for the minor source construction waiver.
SECTION 9 creates a restriction for the construction permit waiver such that a source may not have already commenced construction, reconstruction, replacement, relocation, or modification before applying for the waiver. This change 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 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.