101 S. Webster St.

Box 7921 

Madison, Wisconsin 53707-7921 

Telephone 608-266-2621 

FAX 608-267-0560 

TTY 608-267-6897 

Jim Doyle, Governor

Matt Frank, Secretary 

April 23, 2008 File Code: 4519-12 

Ms. Cheryl Newton 

USEPA-Region V (A-18J) 

77 West Jackson Boulevard 

Chicago, IL 60604-3608 

Subject: Revisions to Wisconsin's SIP for expanding the current exemptions from air permitting 

requirements. 

Dear Ms. Newton: 

The Wisconsin Department of Natural Resources (WDNR) is submitting a revision to its state implementation 

plan (SIP) regarding Construction and Operation Permits exemptions, chs. NR 406 and NR 407, Wis. Adm. 

Code and the associated fees, ch. NR 410, Wis. Adm. Code. 

 

This proposal may exempt small sources of air pollution (sources which emit under 10 tons per year (TPY) of 

each criteria air pollutant and less than 0.5 TPY for lead) from construction and operation permitting 

requirements. 

The proposal may also exempt larger sources of air pollution which undertake construction/modification type 

projects from construction permitting requirements which have low emissions. Total controlled actual 

emissions of each criteria pollutant must be less than 1,666 pounds in any month averaged over any consecutive 

12−month period, and less than 10 lb/month averaged over any consecutive 12−month period for lead. 

The revision to certain sections of chs. NR 406, NR 407, and NR 410, Wis. Adm. Code, became effective on 

June 1, 2007. We are now submitting this action as a formal SIP revision by this letter and its attachments. The 

USEPA-Region V checklist and the hearing documentation are included as attachments to this letter. 

If you have any questions regarding this submittal, please call Ralph Patterson at 608/267-7546 or Tom Palionis 

at 608/264-8876. 

Sincerely, 

/s/ 04/23/2008 

Kevin Kessler, Director 

Bureau of Air Management 

cc: Doug Aburano, USEPA-Region V (AR-18J), 77 West Jackson Boulevard, Chicago, IL 60604 

 Bob Eckdale - AM/7 

 Ralph Patterson - AM/7 

 Tom Palionis – AM/7 

Tom Steidl – LS/8 

Quality Natural Resources Management

Through Excellent Customer Service Printed on

Recycled

Paper

www.dnr.state.wi.us

www.wisconsin.gov
Enclosures: 

Attachment 1- Rule package information on revisions to Chapters NR 406, NR 407, and NR 410, Wis. Adm. 

Code 

Attachment 2- Public hearing notice 

Attachment 3- Proof of public hearing. Copy of legal notice from May 22, 2006 Wisconsin State Journal 

Attachment 4-SIP Checklist 

Attachment 5-SIP Certification 
DATE: July 19, 2006 FILE REF: 4533 

TO: Natural Resources Board Members 

FROM: Scott Hassett, Secretary 

SUBJECT: Background Memo on Request for Adoption of Order # AM-09-06, pertaining to the 

revisions of chs. NR 406, 407 and 410, Wis. Adm. Code, for expanding the current 

exemptions from air permit requirements. 

1. Why is this rule being proposed? 

a. What event or action triggered the proposal? 

In 2003, s. 285.60(6)(b), Stats., was created as part of 2003 Wisconsin Act 118. This law requires the 

Department to exempt minor sources from the requirement to obtain air permits if emissions from the 

source do not present a significant hazard to public health, safety, welfare or to the environment. Thus, 

the Department is proposing the changes to chs. NR 406, 407 and 410 to meet this statutory requirement. 

b. What issues are addressed by this rule? 

The Department has examined current permit exemptions in light of the requirements of s. 285.60(6)(b), 

Stats., and believes that an expansion of those exemptions is required under the statute. Therefore, the 

Department is proposing exemptions at emission levels which it believes do not represent a significant 

hazard to public health, safety, welfare or to the environment. 

2. Summary of the Rule 

The rule proposal provides exemptions from construction and operation permitting requirements for 

facilities which have less than 10 tons/year of actual emissions of criteria pollutants (particulate matter, 

sulfur dioxide, nitrogen oxides, carbon monoxide and volatile organic compounds), and which are not 

subject to federal New Source Performance Standards or federal air pollution requirements for hazardous 

air pollutants. This exemption needs to be claimed by the facility owner or operator if the facility is 

required to submit an air emission inventory report. 

For facilities with higher levels of emissions, projects involving construction, modification, 

reconstruction, relocation or replacement which have less than 10 ton/year actual emissions of criteria 

pollutants and which meet the other exemption criteria would be exempt from obtaining a construction 

permit prior to undertaking the project. However, the facility owner or operator would still need to apply 

for an operation permit revision for the project. The proposal includes an $800 fee for each construction 

permit exemption to defray engineering review costs incurred by the Department when evaluating 

whether a source qualifies for the exemption. The rule requires the Department to respond within 20 

business days of receipt of the exemption notification. This time period is identical to that required for 

construction permit applications. 

1
2

Lastly, two additional activities are proposed to be added to the current list of activities which are 

excluded from being a modification. These activities are certain changes to process lines emitting volatile 

organic compounds and conversion of small boilers to use an alternate clean fuel. 

3. How does this proposal affect existing policy? 

This proposal implements new State policy on air permits as reflected in s. 285.60(6)(b), Stats. 

4. Hearing Synopsis. 

Three public hearings were held: one on June 27 in Stevens Point, one on June 28 in Madison, and one on 

June 29 in Milwaukee. Five persons attended the hearings. Two testified in support of some elements 

and in opposition to other elements. The other three attended but did not testify. 

The Department received written comments from the following groups: 

- Aggregate Producers of Wisconsin 

- Kohler Company 

- Printing Industries of Wisconsin and Specialty Graphic Imaging Association International 

- Wisconsin Manufacturers and Commerce 

- Wisconsin Paper Council 

- Wisconsin Cast Metals Association 

A summary of the comments and the Department’s response to the comments is attached to this 

background memo. 

5. Changes made to the plain language analysis of the rule. 

The section of the plain language analysis of the rule that compares the proposed exemption rules with 

those in adjacent states was expanded to include additional information about the programs in Minnesota 

and Michigan. 

 

6 Information on environmental analysis. 

Under s. NR 150.03(3), Wis. Adm. Code, an environmental analysis would not be needed because this 

proposal is considered a Type III Action. A Type III Action is one that normally does not have the 

potential to cause significant environmental effects, normally does not significantly affect energy usage 

and normally does not involve unresolved conflicts in the use of available resources. 

7. Final Regulatory Flexibility Analysis. 

The proposed rule will affect a number of small businesses. The proposal will exempt a number of small 

businesses from obtaining air pollution permits. This will, in general, lower their compliance costs and 

reporting requirements. The construction permit exemption for projects will benefit larger businesses 

with higher levels of emissions. 

7A. Identify and discuss why the rule includes or fails to include any of the following methods for 

reducing the impact on small business. 

1. Less stringent compliance or reporting requirements. 
3

This rule reduces reporting requirements. By exempting facilities from the need to obtain a permit, it also 

exempts them from permit-related reporting requirements that they would otherwise have to fulfill. For 

example, they will no longer need to submit annual compliance certification reports, as is required of 

permitted facilities. 

The only new reporting requirement in the rule is the requirement that sources which are already required 

to submit an annual emission inventory also submit a one-time claim that they are exempt from 

permitting. This claim is expected to be a check-off box on the emission inventory form. In response to 

comments, the rule was revised to eliminate the exemption claim requirement from businesses which do 

not report to the air emission inventory. It should be noted that the use of this exemption is optional. It 

is an election on the part of the facility owner to limit future actual emissions to levels that are below the 

exemption threshold. The exemption claim notifies the Department that the facility has elected to live 

under the “emission cap” instead of obtaining the otherwise required operation and construction permits. 

The compliance demonstration requirements are less stringent for facilities electing to use this exemption. 

Unlike a traditional permit which spells out all the specific applicable requirements and their compliance 

demonstration methods, under the exemption rule, the owner or operator is responsible for conducting 

monitoring and maintaining records “sufficient” to demonstrate compliance with the exemption rule. 

There is flexibility in how the owner or operator decides to make this demonstration. The only specific 

compliance demonstration requirement relates to the use of pollution control devices where the 

monitoring methods that apply to the operation and maintenance of all control devices also apply to those 

used by exempt facilities. Since the control devices reduce the emissions that otherwise would be emitted 

into the ambient air, it is extremely important that they be well maintained and operated. Under the 

exemption rule, compliance demonstration records are not submitted to the Department, but must be 

maintained on site for 5 years. 

2. Less stringent schedules or deadlines for compliance or reporting.

The only reporting deadline is the exemption claim which would be filed one time at a date to be 

determined by the Department. The actual date depends on the effective date of the rule. 

3. Consolidation or simplification of compliance or reporting requirements.

The proposed rule does not change compliance requirements for any source. However, as discussed in the 

response to A.1. above, the benefit of being exempt from permitting is that the permit-related compliance 

and reporting requirements no longer apply. This provides more flexibility to the facility and eliminates 

the requirement for annual compliance certification reporting. Other than emission inventory reporting, 

which is required of all facilities whose actual emissions exceed the threshold levels, an exempt facility is 

not required to submit any reports to the Department. It simply needs to maintain its records on site. 

For projects exempt from construction permitting at larger sources, the rule only eliminates the need for 

the construction permit and does not change or add any other requirements. 

4. Establishment of performance standards in lieu of design or operational standards 

The proposed rule change does not create additional design or operational standards. 

5. Exemption from any or all requirements of the rule. 

The proposed rule is adding additional exemptions which may apply to some small businesses. 
4

7B. Issues raised by small business during the rule hearings, changes made as a result and reasons for 

rejecting alternatives suggested by small business. 

Comments were submitted by Wisconsin Manufacturers and Commerce (WMC) and the Printing 

Industries of Wisconsin (PIW) on behalf of their members. WMC commented that exempt facilities 

would be required to comply with the same recordkeeping, monitoring and reporting requirements as 

facilities covered under a traditional permit. Both WMC and PIW opposed the exemption claim 

requirement as an onerous paperwork burden. 

In response to comments, the rule was revised so that facilities which are not required to submit an air 

emission inventory report are not required to claim the permit exemption. The intent is not to create a new 

administrative burden for facilities that elect to use the permit exemption. In order to continue to 

streamline the process, the claim is a one time claim that is expected to be a check off box on the existing 

emission inventory form. It will not require any additional work or the necessity to file a claim prior to 

taking any construction activity. 

The rule does not impose any additional recordkeeping, monitoring or reporting requirements and in fact, 

relieves exempt facilities from those requirements that are permit-related. Other than requiring 

compliance monitoring of pollution control devices in conformance with administrative code 

requirements, the rule does not specify recordkeeping, monitoring or reporting requirements. It does 

requires that the compliance monitoring records be sufficient to demonstrate compliance and that they be 

maintained on site. 

7C. Reports required by the rule and estimated cost of preparation. 

The only “report” required by the rule is a one-time exemption claim that facilities who are already 

required to submit an emission inventory report must claim. This is expected to be a check off box on the 

inventory reporting form. It will not require any additional work on the part of the facility and its cost 

will be minimal. 

Businesses using the construction permit exemption are required to submit a request to revise their 

operation permit. This is no different from current requirements. 

7D. Measures or investments needed to comply with the rule. 

There are no measures or investments needed to comply with the rule. 

7E. Additional cost to the state for administering or enforcing a rule which includes any methods 

identified in A. 

The proposed Rules allow for small emission sources to be exempt from all permitting requirements and 

for larger sources to be exempt from construction permitting requirements. The elimination of all permit 

requirements for small sources will reduce Department costs for writing permits and for storing and 

reviewing compliance certification reports. The construction permit exemption is estimated to allow for 40 

projects per year that currently require a construction permit to be exempt from that requirement. 

However, these projects will still require the Department to issue an operation permit or to revise an 

existing operation permit. 

Based on a loss of 40 construction permits per year, and an average cost per construction permit of $6,000, 

the revenue loss would be $240,000/year. With the proposed $800 exemption fee, the gain in fees would 

be $32,000/year (40 exemptions at $800 per exemption) for a net loss of funds of $208,000/year. 
5

The elimination of the permitting requirement for small sources should have little or no effect on program 

revenue. Additionally, any reduced workload for permit writing will likely be shifted into ensuring these 

sources are in compliance with Air requirements. 

7F. Impact on public health, safety and welfare caused by any methods identified in A. 

There should be no impact on public health, safety and welfare as the methods identified in A. do not 

change any of the applicable requirements. Certain facilities and projects are exempted from permitting 

but are not exempt from complying with air emission standards. 
Department of Natural Resources Responses to Public Comments on Proposed Revisions to chs. 

NR 406, 407 and 410, Wis. Adm. Code. 

Board Order No. AM-09-06 

July 18, 2006 

The Natural Resources Board authorized public hearings on the proposed air permit exemption 

rules at its April 2006 meeting. These public hearings were held on June 27th in Stevens Point, 

June 28th in Madison and June 29th in Milwaukee. Two persons testified, both in partial support 

and in partial opposition to portions of the proposed rule changes. 

Comments on these proposed rules (Board Order No. AM-09-06) were received from the 

following groups. Comments at the hearings were received from WMC and PIW. The written 

comments submitted by these groups included all of the comments made at the public hearing: 

- Aggregate Producers of Wisconsin (APW) 

- Kohler Company (K) 

- Printing Industries of Wisconsin (PIW) 

- Wisconsin Manufacturers and Commerce (WMC) 

- Wisconsin Paper Council (WPC) 

- Wisconsin Cast Metals Association (WCMA) 

- Legislative Rules Clearinghouse (LRC) 

COMMENTS AND RESPONSES

The comments identified in this section will generally follow the order they were identified in 

WMC’s comments. This method was chosen because WMC submitted the most comments. 

Comments not submitted by WMC but only by other groups will be addressed last. 

1. Comment: Facilities that are exempt [from permitting requirements] under this rule are 

required to comply with the same recordkeeping, monitoring and reporting requirements as 

sources covered under a traditional permit [WMC]. Response: It is not clear from this comment 

which exemption (the exemption from all permitting or the exemption from construction 

permitting only) is being addressed here. For the purpose of this response, the Department will 

assume this applies to the exemption from all permitting. 

The purpose of this rule and these exemptions is to exempt sources from permitting requirements 

and not other applicable requirements. This is what s. 285.60(6)(b), Stats., requires the 

Department to do and what the Department is doing with this rule package. This is true of all 

other permit exemptions which are presently in chs. NR 406 and NR 407, and also true of the 

Minnesota permit exemptions cited by this commenter on numerous occasions in their written 

comments. In Minnesota’s guidance for permit applicability it is made clear that being exempt 

from the requirement to obtain a permit does not exempt one from any other potentially 

applicable regulatory requirements. 

The operation permit exemption requires sources which are already required to submit an annual 

emission inventory report to the Department to continue to do so. This requirement already 

applies to sources which may or may not need permits and is based solely on actual emissions. 

Additionally, the final rule requires sources which use emission control devices (and only sources 

which use control devices) such as baghouses and incinerators to monitor these devices and to 

keep records of the device monitoring. The Department believes this is necessary because 

sources which use control devices are potentially large sources of emissions which, if not 

properly controlled, could represent a significant risk to human health or the environment. For 
example, a baghouse typically achieves a minimum of 99% control efficiency for particulate 

matter emissions. Assuming a source emits only 5 tons of particulate matter, the potential 

emissions of particulate matter are 500 tons/year if the baghouse is not working properly. 

Additionally, the rule does not require any exempt source to submit a compliance certification 

report as is required of any permitted source. Therefore, the Department does not concur that this 

is not a lessening of recordkeeping or reporting requirements. 

2. Comment: Other States have more meaningful exemption to air permit requirements. For 

example, Minnesota presumes sources are exempt from permitting if their potential to emit is less 

than 100% of major source threshold [WMC]. Response: As discussed in the Rule Analysis 

portion of Board Order for the proposed rule, the Department believes that the construction 

permit exemptions allowed in Wisconsin are, in general , broader than those provided by 

neighboring states. For a more complete analysis of the Minnesota Program, please see the Rule 

Analysis for this rule. 

3. Comment: Support the use of actual emission based exemptions and the proposed exclusions 

from modifications in the rule [WMC, WCMA]. Response: None required 

4. Comment: The proposed actual emissions exemption threshold should be increased to 25 

tons/year [WMC, APW]. Response: The Department believes that the 10 ton/year actual 

threshold proposed in this rule is appropriate. Assuming this rule is eventually adopted, the 

Department will have a permit exemption available for sources with emissions under 10 tons/year 

and will also soon have a registration operation permit available for sources with emissions under 

25 tons/year. As previously discussed, sources which claim this exemption, and not one of the 

other numerous exemptions in the Rules for specific source categories or for sources without 

emission controls which have low emissions, are likely to have the potential to emit very large 

quantities of emissions if not properly controlled. 

5. Comment: The Department should add exemptions based on the source’s potential to emit 

such as those that exist in Minnesota [WMC]. Response: In developing the proposed rule, the 

Department worked for many months with interested parties, including representatives of WMC. 

Prior to these comments, no significant discussion occurred and no proposal was received by the 

Department for basing exemptions on the Minnesota potential to emit thresholds. That being 

said, the Department believes that the exemptions provided in Wisconsin are in general , broader 

than those provided by neighboring states. 

Additionally, as discussed in the Rule Analysis, the term “potential to emit” as used in the 

Minnesota program is equivalent to the term “maximum theoretical emissions” in the Wisconsin 

program. In Wisconsin, sources with low maximum theoretical emissions are already exempt 

under the existing Rules from obtaining construction or operation permits 

6. Comment: The Department should include an exemption for small boilers that is the same as 

that in Michigan [WMC]. Response: In developing the proposed rule, the Department worked 

for many months with interested parties, including representatives of WMC. During this time, 

the Department asked numerous times for any suggestions for specific exemptions which could 

be analyzed and possibly included in the proposed rule. No suggestions were received. The 

Department is willing, in the future, to examine this request, but believes there is insufficient time 

to examine the request and that adding such a provision would likely require a second public 

comment period as additional exemptions of this sort were not proposed with the original rule. 
7. Comment: We are opposed to having to submit a “claim of exemption” [WMC, APW, PIW]. 

Response: The proposed rule requires that all sources which want to claim exemption from all 

permitting requirements notify the Department of such a claim. The Department is proposing to 

amend the proposed rule such that only sources which are required to report to the air emission 

inventory be required to make such a claim. This is consistent with the intent of the original rule 

proposal. The Department anticipates that such a claim be made by simply marking a box on the 

air emission inventory report following promulgation of the rule The Department does not 

believe this is a significant burden for any source or requires any expertise. This claim is 

necessary because sources not required to obtain a permit are billed at a flat rate and not per ton 

of emissions and so that the Department will know which state operation permit applications no 

longer need to be reviewed. Without such an initial claim, the Department will be unable to 

properly bill the affected sources and will still need to contact each source to determine if the 

state operation permit needs to be reviewed and issued. 

Additionally, the use of this exemption is optional for all sources which meet the applicability 

requirements. A source which could claim this exemption is not required to use this exemption 

and limit its emissions. This again reinforces the need for an exemption claim for sources which 

want to use this exemption. 

The proposed rules also requires sources which are required to have operation permits to submit a 

claim of exemption from construction permitting when the operation permit revision requested is 

submitted. The Department has already developed and amended revision request from in which a 

box is marked for claiming exemption from construction permitting under these provisions. 

Since submittal of the operation permit revision request is already required by rule, the 

Department does not believe this adds any additional burden to the affected sources. 

Additionally, without a claim of exemption from construction permitting, the operation permit 

revision reviewer would need to contact the applicant to determine why the proposed change is 

exempt from construction permitting. Thus, the requirement to claim the exemption will add to 

the efficiency of the program without adding any additional work for affected facilities. 

8. Comment: Operation permit revisions are not required to be reviewed within any specified 

time period and sources cannot operate until such requests have been reviewed and approved 

[WMC]. Response: Section NR 407.13, Wis. Adm. Code, requires the Department to issue the 

majority of significant revision requests within 9 months after receipt of a complete application. 

Sources which submit a complete application for a significant revision may construct the units 

covered under that revision request prior to the Department approving the revision 

9. Comment: The Department should put in place deadlines for reviewing these operation permit 

revision requests and endeavor to act on requests for smaller sources in an expeditious manner 

[WMC]. Response: The Department is planning to act on these revision requests (all such 

requests, not just those claiming exempting from construction permitting under this rule proposal) 

in as expeditious fashion as time and resources allow. The Department does not see any merit in 

establishing more expeditious timelines for “smaller sources” but is willing to discuss the 

possibility of reviewing smaller source applications more quickly than those for larger emitters 

(i.e. small sources would always be given priority). 

10. Comment: The draft rule creates new monitoring and recordkeeping requirements and also 

directs sources to undertake any other monitoring or recordkeeping found in the rules that may be 

applicable. The DNR should drop any monitoring or recordkeeping requirements from the rule 

[WMC, APW]. Response: The only recordkeeping and monitoring requirements in the rule are 

that sources monitor control equipment in accordance with the procedures established in s. NR 
439.055, Wis. Adm. Code. This Code section establishes minimum control device monitoring 

requirements for sources that are not subject to more stringent requirements under other rules. 

The Department believes such monitoring is appropriate because, as mentioned in response to 

comment 1., sources using control devices to limit actual emissions are potentially very large 

sources of air emissions if the control device is not operating properly. The purpose of the 

monitoring is to allow a source to demonstrate that the control device was operating and 

operating with an acceptable efficiency. 

The rule does not establish any other reporting or monitoring requirements. However, this is a 

permit exemption rule and not an exemption from all requirements of the ch. NR 400 series or 

other Statutory or Federal requirements. Thus, if the facility is subject to some other 

recordkeeping or monitoring requirements to demonstrate compliance with those other 

requirements, then the recordkeeping or monitoring required by those requirements must be met 

by the source. 

11. Comment: Ch. NR 438, Wis. Adm. Code, (air emission inventory reporting) is still 

applicable to sources under this rule [WMC, APW]. Response: The purpose of this rule 

proposal is to provide an exemption from permitting requirements. It is not and was never 

intended to provide an exemption from air emission inventory requirements. 

12. Comment: The DNR should consider alternative emission thresholds for hazardous air 

pollutants than those in NR 445 [WMC]. Response: The emission thresholds established in NR 

445 apply to all sources in the state. Additionally, the emission thresholds were established to 

protect human health from significant harm from exposure to hazardous air pollutants. Also, 

unlike other sources, exempt sources need only maintain their actual emissions below NR 445 

thresholds as opposed to maintaining potential emissions below NR 445 thresholds for other 

sources. The rule was revised to include the “incidental emitter” provisions of s. NR 445.11 

which narrows the scope of the rule to certain processes and substances of concern. 

13. Comment: May sources presently covered by permit ask to have their permit revoked and 

then comply with the exemption requirements only [WMC]? Response: In general, this should 

be allowable. There may be permits that have been issued for other purposes such as PSD/NAA 

major source review avoidance which cannot be revoked. 

14. Comment: We object to the $800 fee for reviewing the construction permit exemption and 

request a fixed turnaround time for reviewing such requests [WMC, APW, PIW]. Response: 

The Department believes this fee is both reasonable and necessary for reviewing this exemption. 

The exemption review will require Department work-time and will require a response from the 

Department as to whether the project is exempt from construction permit requirements. 

Additionally, the proposed fee is substantially less than the minimum construction permit review 

of $2,300 and the average construction permit review fee of $8,000. Finally, in order to ensure a 

quick turnaround of such requests, the Department is amending the rule to require a Department 

response within 20 business days of receipt of the exemption request. This time period is 

identical to that required for construction permits. 

15. Comment: Are facilities which are exempt from obtaining an operation permit under this 

rule also exempt from obtaining a construction permit [PIW]? Response: Yes, the rule states 

that such facilities are exempt from construction permitting and need not claim the construction 

permit exemption as long as they maintain actual emissions below 10 tons/year for criteria 

pollutants and meet the other applicability requirements in the proposed rule. 
16. Comment: Clarify NR 406.04(2m) such that facilities operating under a general or 

registration operation permit are exempt from construction permit requirements [WMC, APW]. 

Response: The Department believes this is clear in the rule. Assuming the facility complies with 

the operation permit requirements and is not subject to major source review, the facility is exempt 

from construction permitting. Additionally, this general exemption is outside the scope of this 

rule proposal. If further clarification is needed, the Department is willing to consider such 

changes for future rule making proposals. 

17. Comment: Does s. NR 406.04(1)(zi)2. apply to the entire facility or to units being 

constructed, modified, or reconstructed as part of a single project [K]. Response: The emission 

thresholds only apply to the emissions units being constructed, modified, replaced, relocated and 

reconstructed as part of a single project. 

18. Comment: Why is the 12-month rolling average of 1,666 lb/month used rather than 12-

month 10 ton/year limitation in s. NR 406.04(1)(zi)2.a. [K]? Response: This limitation is used 

to ensure that the emission cap is practicably enforceable. 

19. Comment: The operation permit revision request should be submitted prior to commencing 

operation and not prior to commencing construction [K]. Response: Under existing rules, ch. 

NR 407, Wis. Adm. Code, requires that the operation permit revision request be submitted prior 

to commencing construction. This rule does not change this requirement. Placing the 

requirement in ch. NR 406 is to serve as a reminder of this already existing requirement. 

20 Comment: Does the claim of exemption from construction need to be submitted prior to 

commencing construction [K]? Response: Yes, this claim should be submitted along with the 

operation permit revision request. 

21. Comment: The exclusion from modification in NR 406.04(4)(i) should be expanded to 

include the use of biofuels [WPC]. Response: Biofuels which meet the requirements to be 

considered distillate oil are exempted under this provision. The Department is willing to examine 

excluding certain biofuels under similar rule provision, but is presently unaware of what biofuels 

would need a similar exemption. 

22. Comment: The phrase “as a result of the project” should be added to the end of NR 

406.04(1)(zi)4 [WPC]. Response: This change will be made as it is consistent with the intent of 

the provision. 

23. Comment: The rule should specify a time when the operation permit revision is due under 

NR 406.04(1)(zi)5. [WPC]. Response: The present rule requires submittal of the revision 

application prior to commencing construction. No change is proposed to be made. 

All comments submitted by the LRC have been addressed in the final rule. 
Attachment 1 

Rule package information on revisions to 

Chapters NR 406, 407, and 410 Wis. Adm. Code 
1

ORDER OF THE STATE OF WISCONSIN 

NATURAL RESOURCES BOARD 

RENUMBERING, AMENDING AND CREATING RULES 

The Wisconsin Natural Resources Board adopts an order to renumber NR 406.02(1) 

and 406.04(4)(h), to amend NR 410.03(1)(d) and to create NR 406.02(1), 

406.04(1)(zh), (1q), (4)(h) and (i), 407.03(1m) and 410.03(1)(f) relating to air pollution 

permit exemptions and air pollution permit exemption fees, and affecting small 

business. 

 AM-09-06 

 Analysis Prepared by the Department of Natural Resources

Statute interpreted: s. 285.60(6), Stats. The State Implementation Plan developed under s. 285.11(6), Stats., is 

revised. 

Statutory authority: ss. 285.11(1) and (6) and 285.60(6), Stats. 

Explanation of agency authority: The Department has had the authority under s. 285.60(6)(a), Stats., to exempt 

stationary sources from permitting requirements if potential emissions do not present a significant hazard to public 

health, safety or welfare or to the environment. In 2003, s. 285.60(6)(b), Stats., was created and requires the 

Department to exempt minor sources from the requirement to obtain air permits if emissions from the source do not 

present a significant hazard to public health, safety or welfare or to the environment. 

Related statute or rule: Chapters NR 406 and 407, Wis. Adm. Code. 

Plain language analysis: The rule proposal provides for sources that have less than 10 tons/year of actual 

emissions of criteria pollutants (particulate matter, sulfur dioxide, nitrogen oxides, carbon monoxide and volatile 

organic compounds), and which are not subject to Federal air pollution requirements for hazardous air pollutants or 

new source performance standards, to be exempt from all permitting requirements. 

For sources with emissions above these thresholds, projects undertaken at the facility that will meet the 

aforementioned criteria would be exempt from obtaining a construction permit prior to undertaking the project. The 

facility owner/operator would still need to apply for an operation permit for the project, but construction of the 

sources included in the project would be allowed. The proposal includes an $800 fee for each construction permit 

exemption to defray engineering review costs incurred by the Department when evaluating whether a source 

qualifies for the exemption. 

The Rule also includes provisions to exclude certain fuel changes at smaller boilers from being considered a 

modification of the boiler. The effect of this change is that boilers which switch to a clean fuel or convert from one 

clean fuel to another will not be subject to more stringent new source requirements such as more restrictive opacity 

limitations. Lastly, the rule also excludes sources which are subject to ch. NR 424 emission control requirements 

from construction permit review when they seek to change the control requirements required under ch. NR 424 

without increasing potential VOC emissions from the affected source. 

Summary of, and comparison with, existing or proposed federal regulation: A comparable federal regulation 

does not exist. The Federal Clean Air Act requires States to have a minor source construction permit program which 

allows for preconstruction review of new and modified sources of air pollution. The purpose of this program is to 

ensure that ambient air quality standards are protected. 

The Clean Air Act also requires that each state manage an operation permit program for major sources of air 

pollution. The criteria for being a major source of air pollution is 100 tons/year of criteria pollutant emissions or 

being defined as a major Federal hazardous air pollution source. 
2

Comparison with rules in adjacent states: All the states within EPA Region 5 manage a minor source 

construction and operation permit program. Some of these programs appear to be more “stringent” than 

Wisconsin’s program, while others appear to be less stringent. Comparisons between programs are difficult due to 

the varying ways sources may be exempt and how programs are funded. Based on a review done by the Air 

Management program, it appears that Wisconsin’s program offers more exemptions than most Region V States. 

Wisconsin: Chapters NR 406 and 407 establish two types of exemptions from construction and operation permitting 

requirements. The first of these, specific exemptions, apply to specific processes such as small boilers, 

crematoriums and small coating operations. The second type, general exemptions, are based on the maximum 

source emissions and whether the source is subject to any Federal emission control requirements. 

Minnesota: Exemptions from operation permits are based solely on the facility’s potential to emit. The term 

“potential to emit” for determining permit applicability is identical to the term “maximum theoretical emissions” 

used by the Department in its general permit exemptions. The Minnesota exemption thresholds are somewhat 

higher than those in Wisconsin for all pollutants. However, Minnesota does not provide for any specific exemptions 

from permitting requirements such as those available in Wisconsin for grain processing, storage facilities and other 

categories of sources. Additionally, Minnesota does not provide for the actual emissions based exemptions currently 

available in Wisconsin for coating and graphic arts operations nor does it provide any exemptions similar to the 

exemption proposed in this rule package for facilities using control equipment to limit actual emissions. Thus, for 

some smaller uncontrolled facilities (especially facilities not in coating or graphic arts industries) Minnesota may 

provide more extensive permit exemptions. But, for other types of facilities, it appears that Wisconsin has more 

extensive permit exemptions. 

For construction permits, the Minnesota program appears to be based on changes in potential to emit, which may be 

limited by control devices in certain cases. The reviews may vary and are identified as insignificant, minor, 

moderate or major. For major (PSD) sources, any change requiring synthetic minor conditions must go through the 

most detailed level of review (major). Again, the emission increase thresholds are generally above those in 

Wisconsin, but no exemptions exist for specific source categories or for sources on an actual emission basis. 

Michigan: Exemptions are mainly based on specific exemptions for certain processes/emissions sources. Examples 

include small boilers and small printing and coating operations. There is also an exemption for facilities with low 

emissions with a threshold significantly lower than that being proposed in this Rule package. In general, the 

exemptions do not appear to be as broad as those currently available in Wisconsin or those being proposed in this 

Rule package. 

Illinois: Exemptions are based on specific exemptions for certain processes/emission sources. Examples include 

small boilers and small printing and coating operations. In general, the exemptions do not appear to be as broad as 

those currently available in Wisconsin or those being proposed in this Rule package. 

Iowa: Exemptions are based on a limited number of identified processes and operations that have very low emission 

rates (lower than in this rule proposal). 

Summary of factual data and analytical methodologies: Rule revisions to chs. NR 406, 407 and 410 are in 

response to s. 285.60(6)(b), Stats., which was part of 2003 Wisconsin Act 118. The law requires that small sources 

of emissions that do not present a significant hazard to public health, safety or welfare or to the environment be 

exempted from permit requirements. 

Analysis and supporting documents used to determine effect on small business or in preparation of 

economic impact report: The proposed rule revisions will require Department resources to implement. The 

Department is proposing an addition to its construction permit fee schedule contained within chapter NR 410 to fund 

this work effort. A proposed fee of $800 is included and is based upon the existing fee structure for Department 

review of another existing construction permit exemption. Businesses that choose to take advantage of the 

regulatory flexibility will have reduced permit fees in the long run because many projects that had previously 

required a construction permit will not be reviewed under that program under the proposed rule revisions. 
3

Anticipated costs incurred by private sector: Although the proposed rule revision requires a fee of $800 for one 

type of construction permit exemption evaluated under these rules, this cost is less than that which would be 

incurred if the source were required to obtain a construction permit.

Effect on small business: These proposed rule revisions should lower compliance costs for many small businesses. 

Agency contact person: (including email and telephone): 

Steven Dunn: (608) 267-0566 steven.dunn@dnr.state.wi.us 

Jeffrey Hanson: (608) 266-6876 jeffrey.hanson@dnr.state.wi.us 

SECTION 1. NR 406.02(1) is renumbered NR 406.02(1m). 

SECTION 2. NR 406.02(1) is created to read: 

 NR 406.02(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 or propane. 

SECTION 3. NR 406.04(1)(zh) is created to read: 

NR 406.04(1)(zh)1. Any construction, modification, replacement, relocation or reconstruction of 

an emissions unit at a stationary source which is exempt from the requirement to obtain an operation 

permit under s. NR 407.03(1m), provided the stationary source still qualifies for the exemption under s. 

NR 407.03(1m) after completion of the proposed construction, modification, replacement, relocation or 

reconstruction. 

2. Construction of a new facility if the facility will be exempt from the requirement to obtain an 

operation permit under s. NR 407.03(1m) after completion of the proposed construction. 

SECTION 4. NR 406.04(1q) is created to read: 

 NR 406.04(1q) SOURCES EXEMPT BASED ON CONTROLLED ACTUAL EMISSIONS. Any 

emissions unit constructed, modified, replaced, relocated or reconstructed at a stationary source where all 

of the following criteria and requirements are met: 

 1. The owner or operator of the stationary source has a facility-wide operation permit under ch. 

NR 407 or has submitted a timely and complete application for a facility-wide operation permit. 
4

2. Actual emissions from all of the constructed, modified, replaced, relocated and reconstructed 

emissions units do not exceed any of the following levels: 

a. 1,666 pounds in any month averaged over any consecutive 12-month period for each of the 

following air contaminants: particulate matter, nitrogen oxide, sulfur dioxide, PM10, carbon monoxide and 

volatile organic compounds. 

b. 10 pounds in any month averaged over any consecutive 12-month period for lead. 

3. None of the emission units constructed, modified, replaced, relocated or reconstructed requires 

a new BACT or LAER determination under ch. NR 445 as a result of the new project. 

4. None of the emission units constructed, modified, replaced, relocated or reconstructed are 

subject to new permitting requirements under ch. NR 405 or 408 as a result of the new project. 

5. The owner or operator of the stationary source submits to the department a complete 

application for an operation permit revision, or an updated application for an operation permit, which 

includes each new, modified, replaced, relocated or reconstructed emissions unit, prior to commencing 

construction, modification, replacement, relocation or reconstruction and does all of the following: 

 a. In the operation permit revision application, or updated operation permit application, proposes 

monitoring of any control equipment used to limit actual emissions from any emissions unit being 

constructed, modified, replaced, relocated or reconstructed in accordance with the monitoring 

requirements in s. NR 439.055. 

 b. Commences monitoring of any control equipment as proposed in subd. 5.a., and maintains any 

records necessary to demonstrate compliance with any applicable emission limitation, upon startup of any 

newly constructed, modified, replaced, relocated or reconstructed emissions unit. 

 6. The owner or operator of the source submits to the department a claim of exemption from 

construction permitting requirements. The exemption claim shall identify the emission units which are 

being constructed, modified, replaced, relocated or reconstructed. The department shall respond to the 

claim of exemption submittal within 20 business days after receipt of the claim. 
5

 7. Any newly constructed emission unit is not subject to an emission limitation under section 111 

or 112 of the Act (42 USC 7411 or 7412). Any modified, replaced, relocated or reconstructed emissions 

unit does not trigger any new emission limitation or other requirement for the emission unit under section 

111 or 112 of the Act (42 USC 7411 or 7412). 

Note: The application for an operation permit or operation permit revision required under this section will 

be evaluated by the department pursuant to the permit approval criteria in ss. 285.63 and 285.64, Stats. Application 

forms may be obtained from the regional and area offices of the department or from the Wisconsin Department of 

Natural Resources, Bureau of Air Management, PO Box 7921, Madison WI 53707-7921, Attention: operation 

permits. 

SECTION 5. NR 406.04(4)(h) is renumbered NR 406.04(4)(j) 

SECTION 6. NR 406.04(4)(h) and (i) are created to read: 

NR 406.04(4)(h) Change to process lines emitting VOCs. A change in a method of operation of a 

process line subject to s. NR 424.03(2)(c) that meets all of the following criteria: 

1. The change does not result in annual potential VOC emissions from the process line which 

exceed the currently allowed annual potential VOC emissions based on conditions established under s. 

NR 424.03(2)(c). 

2. The change does not trigger a requirement under section 111 or 112 of the Act (42 USC 7411 

or 7412). 

Note: The permittee shall continue to comply with the conditions established under s. NR 424.03(2)(c) in 

its construction or operation permit until the permit is revised. 

(i) Change to use a clean fuel. A change to an external combustion furnace to allow for the 

combustion of a clean fuel that meets all of the following requirements: 
6

1. The external combustion furnace has a maximum heat input capacity of no greater than 10 

mmBtu/hour if the ability to combust distillate oil is being added and 25 mmBtu/hour if the ability to 

combust natural gas or propane is being added. 

2. The use of the new fuel does not cause or exacerbate the exceedance of any ambient air quality 

standard or increment in ch. NR 404. 

3. The change does not trigger a requirement under section 111 or 112 of the Act (42 USC 7411 

or 7412). 

SECTION 7. NR 407.03(1m) is created to read: 

NR 407.03(1m) FACILITIES EXEMPT BASED ON ACTUAL EMISSIONS. (a) Any facility 

that is required to submit an annual emission inventory report under s. NR 438.03 is exempt from the 

requirement to obtain an operation permit following notification under par. (c), where all of the following 

criteria and requirements are met: 

1. The actual emissions of each air contaminant from the facility do not exceed any of the 

following levels: 

a. 10 tons in any calendar year for each of the following air contaminants: particulate matter, 

nitrogen oxide, sulfur dioxide, PM10, carbon monoxide and volatile organic compounds. 

b. 0.5 tons in any calendar year for lead. 

c. Any stack-appropriate thresholds for emissions points in columns (c), (d), (e) and (f) of Table 

A, B or C of ch. NR 445. If the facility is a source of incidental emissions under s. NR 445.11, this 

subdivision only applies to emissions of air contaminants which are listed as substances of concern in 

Table E of ch. NR 445. 

2. The facility is not subject to a standard under section 111 or 112 of the Act (42 USC 7411 or 

7412). 

3. The owner or operator conducts monitoring and maintains records sufficient to demonstrate 

compliance with the requirements of this paragraph, including the calculation of annual facility-wide 
7

emissions. These records shall be maintained on site for at least 5 years, unless a longer period is required 

by statute or rule. 

4. If a control device is used to limit actual emissions, the owner or operator uses a compliance 

monitoring method which is identified in s. NR 439.055. 

(b) Any facility that is not required to submit an annual emission inventory report under s. NR 

438.03 is exempt from the requirement to obtain an operation permit where all of the criteria and 

requirements in par. (a)1. to 4. are met. 

(c)1. The owner or operator of a facility required to submit an air emission inventory report under 

s. NR 438.03 shall notify the department of their intent to operate the facility under the exemption criteria 

in par. (a). A claim of exemption made under s. NR 406.04(1q) from construction permit requirements 

shall satisfy this notification requirement. 

2. Any existing permit shall remain in effect until the permit is revoked or coverage under a 

general or registration permit is withdrawn. A notification under subd. 1. shall serve as a request for 

revocation of an individual permit or withdrawal from coverage under a general or registration permit. 

3. A notification under subd. 1. shall serve as a request for withdrawal of any pending permit 

application.

Note: An owner or operator exempt under this subsection is responsible for complying with all other 

applicable requirements in chs. NR 400 to 499.

SECTION 8. NR 410.03(1)(d) is amended to read: 

 NR 410.03(1)(d) Any person who applies for a construction permit for a direct source shall 

submit a $1,350 fee with the application. This fee may not be refunded unless the department determines 

that a permit is not required. When a fee is required under par. (b) or (f), only the amount not required to 

cover the fee will be refunded. 

SECTION 9. NR 410.03(1)(f) is created to read: 
8

 NR 410.03(1)(f) Any person submitting a claim for a construction permit exemption under s. NR 

406.04(1q) shall pay a fee of $800. 

SECTION 10. EFFECTIVE DATE. This rule shall take effect on the first day of the month following 

publication in the Wisconsin administrative register as provided in s. 227.22(2)(intro.), Stats. 

SECTION 11. BOARD ADOPTION. This rule was approved and adopted by the State of Wisconsin 

Natural Resources Board on August 16, 2006 and February 28, 2007. 

Dated at Madison, Wisconsin _________________________________. 

STATE OF WISCONSIN 

DEPARTMENT OF NATURAL RESOURCES 

By__________________________________ 

 Scott Hassett, Secretary 

(SEAL) 
Attachment 2 

Public hearing notice 
BEFORE THE 

DEPARTMENT OF NATURAL RESOURCES 

NOTICE OF PUBLIC HEARINGS 

AM-09-06 

 NOTICE IS HEREBY GIVEN that pursuant to ss. 285.11(1) and (6) and 285.60(6), Stats., 

interpreting s. 285.60(6), Stats., the Department of Natural Resources will hold public hearings on 

revisions to ss. NR 406.02, 406.04, 407.03 and 410.03, Wis. Adm. Code, relating to air pollution permit 

exemptions and air pollution permit exemption fees. The State Implementation Plan developed under s. 

285.11(6), Stats., is also revised. In 2003, s. 285.60(6)(b), Stats., was created as part of 2003 Wisconsin 

Act 118. This law requires the Department to exempt minor sources from the requirement to obtain air 

permits if emissions from the source do not present a significant hazards to public heath, safety, welfare or 

to the environment. The Department has examined current permit exemptions in light of this and believes 

that an expansion of those exemptions is required under the statutes. The proposed rule changes contain 

the following three elements: 

 1. Exemption from operation and construction permitting requirements for facilities which have 

actual emissions of each criteria pollutant (other than lead) of less than 10 tons/year, and which are not 

subject to additional control requirements such as federal hazardous air pollutant standards. 

 2. Exemption from construction permitting requirements of any construction/modification type of 

project at a facility where the project will have actual emissions of criteria pollutants (other than lead) of less 

than 10 tons/year, and which is not subject to additional control requirements such as federal hazardous air 

pollutant standards. 

 3. Add an $800 exemption review fee for all projects which claim exemption under #2. 

 NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 227.114, Stats., the proposed rule 

may have an impact on small businesses. The initial regulatory flexibility analysis is as follows: 

 a. Types of small businesses affected: Small businesses which have very low emissions or 

which add additional equipment with very low emissions will be affected. Examples are coating facilities 

and small printers. 

 b. Description of reporting and bookkeeping procedures required: The proposed rule change 

does not create any significant additional reporting or bookkeeping requirements. 

 c. Description of professional skills required: The proposed rule change does not create an 

additional need for professional skills. 

 The Department’s Small Business Regulatory Coordinator may be contacted at 

SmallBusiness@dnr.state.wi.us or by calling (608) 266-1959. 

NOTICE IS HEREBY FURTHER GIVEN that the Department has made a preliminary 

determination that this action does not involve significant adverse environmental effects and does not 

need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on the comments 

received, the Department may prepare an environmental analysis before proceeding with the proposal. 

This environmental review document would summarize the Department’s consideration of the impacts of 

the proposal and reasonable alternatives. 

 NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, 

reasonable accommodations, including the provision of information material in an alternative format, will 

be provided for qualified individuals with disabilities upon request. Please call Robert Eckdale at (608) 

266-2856 with specific information on your request at least 10 days before the date of the scheduled 

hearing. 
 NOTICE IS HEREBY FURTHER GIVEN that the hearings will be held on: 

June 27, 2006 Prairie Room (lower level), Charles M. White Public Library, 1001 Main Street, 

Tuesday Stevens Point at 1:00 p.m. 

June 28, 2006 Room GO9, GEF #2 State Office Building, 101 South Webster Street, Madison 

Wednesday at 1:00 p.m. 

June 29, 2006 Room 141, DNR Southeast Region Hdqrs., 2300 N. Dr. Martin Luther King Jr. Dr., 

Thursday Milwaukee at 1:00 p.m. 

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at 

the following Internet site: adminrules.wisconsin.gov. Written comments on the proposed rule may be 

submitted via U.S. mail to Mr. Steve Dunn, Bureau of Air Management, P.O. Box 7921, Madison, WI 

53707. Comments may be submitted until June 30, 2006. Written comments whether submitted 

electronically or by U.S. mail will have the same weight and effect as oral statements presented at the 

public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Robert 

Eckdale, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707. 

 Dated at Madison, Wisconsin ________May 10, 2006____________________ 

 STATE OF WISCONSIN 

 DEPARTMENT OF NATURAL RESOURCES 

 By _____/ S /___________________________ 

 Scott Hassett, Secretary 
Attachment 3 

Proof of public hearing 

Copy of legal notice from 

May 22, 2006 Wisconsin State Journal 

Attachment 4 

SIP Checklist 
EPA Region V 

Wisconsin SIP Submittal 

Completeness Review

Submittal Letter 

1. Signed by Governor’s Designee (Kevin Kessler)? Yes _X_ No ___ 

2. Date of Submittal ______________________________________ 

3. WDNR Person in charge of SIP submittal. 

Name _Ralph Patterson_ Telephone _608/267-7546__ 

 FAX Number _608/267-0560__ 

E-MAIL Address____Ralph.Patterson@wisconsin.gov_______ 

4. WDNR Technical Person in charge of answering questions on SIP Submittal 

Name __Tom Palionis__ Telephone __608/264-8876__ 

 FAX Number _608/267-0560__ 

E-MAIL Address__thomas.palionis@wisconsin.gov_ 

Incorporation Into Wisconsin Administrative Code

5. Is evidence that the State incorporated the revision into the Wisconsin Administrative Code supplied in this SIP package? 

 Yes _X_ 

 No, if No explain. 

6. The effective date of the regulation is or was _06/01/2007_ 

7. Are test methods/rules incorporated by reference correctly? (Has approval been obtained from the state Attorney General? 

 Yes_______ 

 No_______ 

 Not applicable __X_____ 

 For No and Not applicable explain answer. No test methods/rules were incorporated by reference in this regulation. 

8. Has WDNR provided evidence that it has necessary legal authority under State law to adopt and implement the revision? 

 Yes __X____ Yes, Section 285.60(6)(b), Wis. Stats. 

 No _______ 

 For No explain answer. 

9. Did the State include a copy of the actual regulation or document for USEPA review? 

 Yes _X__ 

 No_____ 

 Additional Explanation (if necessary). 

10. Did the State provide evidence that it followed all of the requirements of its Administrative Procedures Act (ch. 227, Wis. Stats., 

Administrative Procedure and Review) in conducting and completing adoption/issuance of the revision? 

 Yes_X__

 No______ 

 Additional Explanation (if necessary) 

11. Did the State include evidence that Public Notice was given of the revision, including date of publication? 

 Yes_X__ 

 No ____ 

 Additional Explanation (if necessary) 

12. Did the State provide a copy of the certification that public hearings were held in accordance with the information provided in the 

public notice (copy of notarized Class I paper proof)? 

 Yes_X_ 

 No___ 

 Additional Explanation (if necessary). 

13. Does the submittal contain a compilation of public comments and the State’s response? 

 Yes_X_ 

 No____ 

 Additional Explanation (if necessary). 
Technical Issues 

14. Name the all the regulated pollutants affected by the revision? All criteria pollutants, Lead. 

15. Does the submittal identify the designation, status of the attainment plan and attainment date for the area(s) 

 Yes____ 

 No__X___ 

 Additional Explanation (if necessary) Not applicable 

16. Does the submittal identify the location and types of affected sources? 

 Yes__X__ 

 No_____ 

Additional Explanation (if necessary). The rule proposal provides exemptions from construction and operation permitting 

requirements for facilities which have less than 10 tons/year of actual emissions of criteria pollutants (particulate matter, sulfur 

dioxide, nitrogen oxides, carbon monoxide and volatile organic compounds), less than 0.5 tons/year of lead, and which are not 

subject to federal New Source Performance Standards or federal air pollution requirements for hazardous air pollutants. 

The proposal may also exempt larger sources of air pollution which undertake construction/modification type projects from 

construction permitting requirements, which have low emissions (less than 10 TPY of each criteria pollutant, and less than 10 

lb/month for lead) and which are not subject to any other additional federal requirements. 

17. Does the submittal quantify the changes in SIP-allowable emissions and estimate or quantify the changes in actual emissions from 

affected sources? 

 Yes___ 

 No__X__ 

Additional explanation (if necessary). Under s. NR 150.03(3), Wis. Adm. Code, an environmental analysis would not be needed 

because this proposal is considered a Type III Action. A Type III Action is one that normally does not have the potential to cause 

significant environmental effects, normally does not significantly affect energy usage and normally does not involve unresolved

conflicts in the use of available resources. Certain facilities and projects are exempted from permitting but are not exempt from 

complying with air emission standards. 

18. Has the State demonstrated that the NAAQS/PSD Increment/RFP demonstration/visibility will be protected if the revision is 

approved and implemented? 

 Yes__X__ 

 No____ 

 Additional explanation (if necessary). 

19. Has the State provided modeling information to support the revision? 

 Yes___ 

 No____ 

 Unnecessary__X__ 

Under s. NR 150.03(3), Wis. Adm. Code, an environmental analysis would not be needed because this proposal is considered a 

Type III Action. A Type III Action is one that normally does not have the potential to cause significant environmental effects, 

normally does not significantly affect energy usage and normally does not involve unresolved conflicts in the use of available 

resources. 

20. Has the State provided evidence that emission limitations are based on continuous emission reduction technology? 

 Yes____ 

 No__X__ 

 Additional explanation (if necessary). Not applicable. 

21. Has the State provided evidence that the revision contains emission limitations, work practice standards and record 

keeping/reporting requirements where necessary, to ensure emission levels? 

 Yes__X_ 

 No____ 

 Additional explanation (if necessary). 

22. Does the submittal contain enforcement/compliance strategies including how compliance will be determined in practice, and at 

what frequency? 

 Yes___ 

 No__X_ 

 Additional explanation (if necessary). 
STATE APPROVABILITY CHECKLISTENFORCEABILITY 

USEPA USE ONLY 

SIP Package Number ___________ 

Date Received by USEPA ________________ 

Date Due_____________________________ 

State: WISCONSIN 
WDNR Information 

Subject Matter: Revisions of chs. NR 406, 407, and 410, Wis. Adm. Code, for expanding the 

current exemptions from air permit requirements per the requirements of s. 285.60(6)(b), Wis. Stats. 

Applicability

USEPA Question USEPA Requirement State Response 

What sources are being 

regulated? 

Clear discussion This proposal will exempt small sources of air 

pollution (sources which emit under 10 TPY of 

each criteria air pollutant and less than 0.5 TPY for 

lead) from construction and operation permitting 

requirements. 

The proposal may also exempt larger sources of air 

pollution which undertake 

construction/modification type projects from 

construction permitting requirements, which have 

low actual emissions (less than 10 TPY of each 

criteria pollutant, and less than 10 lb/month for 

lead) and which are not subject to any other 

additional federal requirements. 

What are criteria for exemption? Clear discussion See state response to what sources are being 

regulated. 

Is calculation procedure for 

exemption clearly specified? 

Supply example calculation or clear 

explanation of how to determine 

exemption (line by line, etc.) 

For facilities seeking exemption from construction 

and operation permitting requirements, total actual 

emissions of each criteria pollutant is less than 10 

TPY and lead emissions less than 0.5 TPY. 

For facilities which undertake 

construction/modification type projects seeking 

exemption from construction permitting 

requirements, total controlled actual emissions of 

each criteria pollutant is less than 1,666 pounds in 

any month averaged over any consecutive 

12−month period, and 10 pounds in any month 

averaged over any consecutive 

12−month period for lead. 

Is emission inventory listed in the 

background document of the 

attainment demonstration? 

Inventory including allowable and 

actual emissions in source category 

should be included, for enforcement 

purposes and independent of any 

Clean Air Act requirements, in the 

attainment demonstration if such data 

is necessary for determining 

baselines in regulations. 

No change from current requirements under 

chapters NR 406, 407, and 410, Wis. Adm. Code. 

Is the averaging time(s) used in 

the rule different from that of the 

ambient standard? 

The averaging time in the rule must 

be consistent with protecting the 

ambient standard in question. 

Normally, it should be equal to or 

shorter than the time associated with 

the standard. Longer term averaging 

is available only in limited instances 

provided that the ambient standard is 

not compromised. 

Not Applicable 

What are the units of compliance 

(lbs VOC per gallon of solids 

applied less water, grains per 

standard cubic foot?) 

Clearly stated in the rule. Not Applicable 

Is bubbling or averaging of any 

type allowed? If yes, state 

Explicit description of how 

averaging, bubbling, or equivalency 

For facilities seeking exemption from construction 

and operation permitting requirements, total actual 
criteria. Could a USEPA 

inspector independently 

determine if the criteria were 

met?? Does USEPA have to 

approve each case? 

is to be determined. VOC 

equivalency must be on a “solids 

applied” basis. Any method must be 

independently reproducible. 

Provision must be explicit as to 

whether USEPA case-by-case 

approval is required. If provision 

intended to be “generic” then 

USEPA bubble policy must be met. 

emissions of each criteria pollutant is less than 10 

TPY and lead emissions less than 0.5 TPY. 

For facilities which undertake 

construction/modification type projects seeking 

exemption from construction permitting 

requirements, total controlled actual emissions of 

each criteria pollutant is less than 1,666 pounds in 

any month averaged over any consecutive 

12−month period, and 10 pounds in any month 

averaged over any consecutive 

12−month period for lead. 

A USEPA inspector could determine if the facility 

met the emissions cap by reviewing the emissions 

inventory and/or recordkeeping for the facility. The 

USEPA would not have to review each case. 

If there is a redesignation, will 

this change the emission 

limitations? If yes, which ones 

and how? 

Regulation may not automatically 

allow for self nullification upon 

redesignation of area to attainment. 

New maintenance demonstration 

required to order to drop regulation. 

Not Applicable 

Compliance Dates 

USEPA Question USEPA Requirement State Response 

What is the compliance date? The compliance date must not be later 

than the approved or about to be 

approved date of attainment unless 

emission reductions are not necessary 

for attainment. In some cases, it will 

be necessary for the regulation to 

specify dates in compliance schedules 

that are required to be submitted by 

source to state. 

Not Applicable 

What is the attainment date? Clearly defined. Not Applicable

Specificity of conduct 

USEPA Question USEPA Requirement State Response 

What test method is required? Test method must be explicitly stated. Not Applicable

What is the averaging time in the 

compliance test method? 

Averaging time and application of 

limit must be explicit. 

Not Applicable

Is a compliance calculation or 

evaluation required? (i.e., daily 

weighted average for VOC). 

Clearly defined. Not Applicable

If a compliance calculation is 

necessary, list the formula, period of 

compliance, and/or evaluation 

method. 

Formula must be explicit. Not Applicable

Incorporation by reference

USEPA Question USEPA Requirement State Response 

What is the state authority for 

rulemaking. 

Clearly stated. S. 285.60(6)(b), Wis. Stats., was created 

part of 2003 Wisconsin Act 118.

Are methods/rules incorporated by 

reference in the right manner? 

Clearly stated. Not Applicable
Record keeping

USEPA Question USEPA Requirement State Response 

What records are required to 

determine compliance? 

Clearly stated. For projects exempt from construction 

permitting at larger sources, the rule only 

eliminates the need for the construction permit 

and does not change or add any other 

requirements. 

The rule does not impose any additional 

recordkeeping, monitoring or reporting 

requirements and in fact, relieves exempt 

facilities from those requirements that are 

permit-related. Other than requiring compliance 

monitoring of pollution control devices in 

conformance with administrative code 

requirements, the rule does not specify 

recordkeeping, monitoring or reporting 

requirements. It does require that the 

compliance monitoring records be sufficient to 

demonstrate compliance and that they be 

maintained on site. 

In what form or units (lbs/gal, 

gr/dscf, etc.) must the records be 

kept? On what time basis 

(instantaneously, hourly daily)? 

Records to be kept must be consistent 

with units of compliance in the 

performance requirements, including 

the applicable time period. 

No change from current requirements under 

chapters NR 406, 407, and 410, Wis. Adm. 

Code. 

Does the rule affirmatively require 

the records be kept? 

There must be clearly defined and 

distinguishable from what constitutes 

a violation. 

The owner or operator maintains 

records sufficient to demonstrate compliance 

with the requirements 

of the exemptions. These records shall be 

maintained on site for at least 5 years, unless a 

longer period is required by statute or rule.

Exemptions

USEPA Question USEPA Requirement State Response 

List any exemptions allowed. Must be clearly defined and 

distinguishable from what constitutes 

a violation. 

Is the criteria for application clear? Clearly stated. 

Malfunction Provisions

USEPA Question USEPA Requirement State Response 

Are there any malfunction 

provisions in the rule? 

Rule must specify what exceedances 

may be excused, how the standard is 

to be applied, and who makes the 

determination. 

Not Applicable 
Attachment 5 

SIP Certification 
presiding officer at the hearing (with thc exccptivll of dit. hearings in Stevens Point and Mwaukee, 

which were held by DNR Engineer Steve Dunn). 

Sublect:: 

Revision to SIP relakg to Exemptions from the Requirement to Obtain an Air Pollution Control 

Permit 

Hearinps held: 

June 27,2006, in Stevens Poht, Wi~consk 

June 28,2006, in Madson, Wisconsin 

June 29,2006, in Mdwaukee, Wisconsin 

Witten comments were received und June 30,2006. 

;I &- 1 

Marcia j. Penner 

Attorney at Law 

Buteau of Legal Services 

Subscribed and sworn to before me 

tb !&thy oldll~llg. m06. n 

My comnussion is permanent.