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.
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.
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 3 adds a fluorinated ether, HFE-347pcf2, 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:Written comments may be submitted at the public hearings, by regular mail, fax or email to:
Kristin L. Hart
Department of Natural Resources
Bureau of Air Management
PO Box 7921
Madison WI 53707
A public hearing will be held on the following date:
Date: April 17, 2019
Time: 2:00 p.m.
Location: Natural Resources Building, Room G27, 101 S. Webster St., Madison, WI 53707
The comment submission deadline is April 24, 2019.
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SECTION 1. NR 400.02 (130), (136m) (intro.), and (b) are amended to read:
