State of Wisconsin 

DEPARTMENT OF NATURAL RESOURCES 

101 S. Webster Street 

Box 7921 

Madison WI 53707-7921 

March 12,2014 

Ms.Susan Hedman 

USEPA-Region V (R-19J) 

77 West Jackson Boulevard 

Chicago IL 60604-3507 

Subject: Wisconsin SIP Revision- Major Modification 

Dear Ms. Hedman: 

Scott Walker, Governor 

Cathy Stepp, Secretary 

Telephone 608-266-2621 

Toll Free 1-888-936-7463 

TTY Access via relay- 711 

The information contained in this SIP Revision request serves to address several issues for which Wisconsin's 

PM25 and ozone Infrastructure SIPs were partially disapproved. 

In a June 17, 2009 letter, EPA notified the Wisconsin Department of Natural Resources (WDNR) that the 

definition of the term "major modification" ins. NR 405.02 was inadequate because it failed to identify permits 

issued under federal authority. Wisconsin's Prevention of Significant Deterioration (PSD) program was approved 

into its SIP on June 28, 1999. Before that, PSD construction permits were issued under federal authority. When s. 

NR 405.02 (21) (b) 5 ., was written, the references to federal authority were inadvertently omitted. Because the 

federal citations were omitted from the rule, USEPA identified that in a very limited situation, the current state 

definition would allow a source to make a change to use a different fuel or raw material without undergoing major 

new source permit review for the change, even though the change could be prohibited under a federal permit. 

In the June 15, 2012 Federal Register (77 FR 35870), EPA disapproved narrow pmtions of Wisconsin's SIP 

related to the definition of major modification discussed above and identification ofNOx as a precursor to ozone 

under the PSD permit program. In the October 29,2012 Federal Register (77 FR 65478), EPA disapproved 

pmtions of Wisconsin's 2006 PM2 5 infrastructure SIP related to identifying PM25 precursors and PM25 I PM 10 

condensables in the PSD program. In the Federal Register notices, EPA stated that it was under obligation to 

promulgate a Federal Implementation Plan (FIP) addressing the disapproved pmtions of the Wisconsin SIP within 

2 years. The Federal Register notice states that the FIP will not be promulgated if WDNR rectifies the deficiencies 

within the 2 year timeframe. 

The WDNR in DNR Board Order AM-21-12 is completing rulemaking to address the EPA major modification 

concerns, identify precursors for both ozone and PM25, and account for PM25 I PM10 condensab1es in the PSD 

program. The sections of AM-21-12 that address the deficiencies noted above include: 

• Section 2, amending NR 400.02(123m) and ( 124); 

• Section 3, amendingNR405.02(2l)(b)5.a. and b. and 6; 

• Section 4, amending NR 405.02(25i)(a); 

• Section 5, creating NR 405.02(25i)(ag) and (ar); 

• Section 6, amending NR 408.02 (20) (e) 5. a. and b. and 6. 

Wisconsin requests a SIP revision for only these sections of Board Order AM-21-12. AM-21-12 also contains 

other amendments to rule language for ch. NR 408, Wisconsin's nonattainment new source review program, and 

repeal of several code references to indirect sources. Under advisement of EPA staff, Wisconsin is not requesting 

dnr.wLgov 

wisconsin.gov Naturally WISCONSIN 

~'~· _- ONAECYCLED "'"~" PAPCR 

--
a SIP revision for proposed rule changes related to PM2 .5 nonattainment area new source review or indirect 

sources at this time. 

Page 2 

Because the changes to chs. NR 400, NR 405, and 408 Wis. Adm. Code, have not been published in the 

Wisconsin Register and are not yet official, we are requesting that EPA begin parallel processing of this SIP 

revision concurrently with the processing of the AM-21-12 rule package. We believe that the parallel processing 

will assist Wisconsin in meeting the 2-year timeframe to rectifY the noted deficiencies. We are submitting 

attachments to this letter to assist EPA staff, which includes a promulgation schedule for the final rules. We will 

supply EPA additional information when AM-21-12 is finalized. 

We appreciate the willingness of your staff to address this issue through the parallel processing procedure. In 

addition to the paper copy of the SIP documents, an electronic copy of these documents is provided on an 

enclosed CD. Please contact Ralph Patterson at 608-267-7546 if you have any questions. 

Sincerely, 

~~ Bart Sponseller, 

Director, Bureau of Air Management 

Cc: Doug Aburano, USEPA-Region V (AR-18J), 77 West Jackson Boulevard, Chicago, IL 60604-3507 

Ralph Patterson, WDNR 

Kristin Hatt, WDNR 

Attachments (all items also included on CD) 

I. The January 2014 Natural Resources Rule Package (also known as the Green Sheet Package) 

containing a background memo, fiscal estimate and economic impact analysis, and rule AM-2 1-12 

2. Rule AM-21-12 

3. SIP Checklist 

4. AM-21-12 Public Hearing notice - DNR did not receive any comments on AM-21-12 at the 

November 5, 2013 public hearing 

5. Newspaper tare sheet showing Class 1 public hearing notice 

6. SIP certification 

7. Schedule for Final Adoption of AM-21-12 
Form 1100-001 P (Rev. 11/13) Wisconsin Department of Natural Resources 

Natural Resources Board Agenda Item 

Item No. 3 • A. 2 • 

SUBJECT: 

Request that the Board adopt Board Order AM-21-12, proposed rules affecting chs. NR 400, 405,408, and 410 related 

to consistency with federal major source permit review requirements and clean~up of rules related to the former indirect 

source permit program. 

FOR: January 2014 Board meeting 

PRESENTER'S NAME AND TITLE: Gail Good, Air Monitoring Section Chief 

SUMMARY: 

The main focus of the proposed rules is to correct deficiencies in chs. NR 405 and 408 identified by the U.S. 

Environmental Protection Agency (USEPA). These corrections are necessary to ensure that the Department implements 

its major new source review permit programs consistent with the Clean Air Act and USEPA requirements. These 

deficiencies have resulted in disapproval of portions of the Department's state implemenation plan and could result in the 

issuance of a Federal Implementation Plan (FIP) by the USEPA if not corrrected. A FIP is a plan promulagated by 

USEPA, used when a state is unable.to develop an adequate plan. 

The Department is also proposing to make changes of a clean-up nature to chs. NR 400 and 410 relating to the former 

indirect source permit program. The Department previously operated an indirect source permit program under ch. NR 

411, as previously authorized ins. 285.60, Stats. Chapter NR 411 was repealed through legislative action under 2011 

Wisconsin Act 121 . The Department is proposing to repeal rules in chs. NR 400 and 410 which previously had the sole 

purpose of supporting the indirect source permit program. 

These proposed rules are not expected to be controversial or to have an economic impact on small business. The Board 

last saw this item in September when it authorized the hearing associated with the proposed rule package. 

RECOMMENDATION: That the Board adopt Board Order AM-21-12. 

LIST OF ATTACHED MATERIALS (check all that are applicable): 

[81 background memo 

[81 Fiscal estimate and economic impact analysis (EIA) fonn 

0 Response summary _ 

0 Attachments to background memo 

0 Environmental assessment or impact statement 

[81 Board order/rule 

Approved by Signature Date· 

Bart Sponseller, Bureau Director 

Pat Stevens, Division Administrator 

Cathy Stepp, Secretary 

cc: Board Liaison - AD/8 Department rule coordinator- LS/8 
State of Wisconsin 

rORRli' ... PONnli'.Nrli'./Mli'.MOR A NnTTM ------------------

DATE: December 17, 2013 

TO: All Members of the Natural Resources Board 

FROM: Cathy Stepp, Secretary 

SUBJECT: Background memo on Board Order AM-21-12, relating to adoption 

1. Why is the rule being proposed? 

This rule is being proposed to maintain consistency with federal requirements and defmitions. 

Additionally, a portion of the rule package is being proposed to repeal portions of the Wisconsin 

Administrative Code related to the repealed indirect source program. 

2. Summary ofthe rule. 

The proposed rule package addresses items identified by USEP A as being deficient with portions of 

Wisconsin's State Implementation Plans. Specifically, the changes pertain to the fuel use prohibition 

that is pmt of the defmition of'major modification' and the clarifications of precursors and 

condensables in chs. NR 405 and 408. Additionally, the proposed rule package seeks to repeal the 

definitions and fees in chs. NR 400 and 410 associated with a program that Wisconsin is no longer 

operating by legislative order. 

3. How does this proposal affect existing policy? 

The proposed rules do not affect existing policy because they do not represent a change in operation of 

Wisconsin's permit prograiO, but rather language changes to ensure consistency with federal 

definitions. The portion of the proposed rule package related to the indirect source program does not 

affect existing policy because Wisconsin no longer operates the indirect source program. 

4. Hearing Synopsis 

A hearing for the proposed rule was held on November 5, 2013 in Room 713 of the Natural 

Resources Building in Madison, Wisconsin. There was one appearance at the meeting from a person 

representing WE Energies who attended 'as interests may appear'. 

The public comment period for the proposed rule ended on November 8, 2013. One comment was 

received via email during the comment period, but it was not relevant to the rule package proposal. 

Comments submitted by the Legislative Council Rules Clearinghouse were generally of a nonsubstantive nature. Changes specifically suggested by the Clearinghouse to be included in the final 

rule are included, except for two suggested changes. The first that was not included was addressed in 

section 2.c. of the report and recommended removal of a reference to a definition created, as part of 

the proposed rule package, in ch. NR 400. This reference is left in the proposed final rule in chs. NR 

405.02 (25i) (ag) and NR 408.02 (29m) (d) to address concerns by USEPA. The second 

recommended change by the Clearinghouse that was not included in the proposed final rule package 

is found in section 2.g. of the report and recommended defining the term 'EPA' in the rule language. 

'EPA' is defined inch. NR 400.03 (4) (f) and therefore its usage in the proposed rule language is 

appropriate. 

5. Information on environmental analysis, if needed. 

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

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

Page 1 of2 Printed on 

R~ycko.l 

Paper 
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. 

6. Soliciting public input for economic impact analysis. 

In order to prepare the fiscal estimate and economic impact analysis, WDNR requested information 

and advice on the economic impact of the proposed rule in a solicitation made on August 26, 2013. 

Responders to the request had until September 9, 2013 to submit information. Three companies 

responded that they had no input because they believed the proposed rules would not have an 

economic impact on them. 

One commenter responded that the proposed rule provided economic benefit and asked the WDNR to 

consider providing an analysis of the benefit. Additionally, the commenter felt that the proposed mles 

addressed broader policy issues whose economic benefits should be analyzed. WDNR does not 

believe the proposed mles provide economic benefit. Any economic benefit from the repeal of ch. NR 

411 occurred when the chapter was repealed through legislative action and is not due to this clean-up 

action. Testimony, including an estimate of the costs associated with implementing the former 

indirect source permit program, was given at the time the legislature was considering the repeal of 

this program. The portions of the rule package associated with the major new source review program 

found in chs. NR 405 and 408 are amendments to ensure that the rules align with current practice as 

well as USEPA policy and do not represent changes in implementation. The economic impact 

analysis speaks to the economic impacts of the proposed rules, not the underlying statutes that give 

WDNR the authority for mlemaking. 

7. Final Regulatory Flexibility Analysis. 

The proposed rules will not have an impact on small business because they are addressing USEPA 

identified SIP deficiencies by aligning rules to current practice. 

Page 2 of2 
STATE OF WISCONSIN 

DEPARTMENT OF ADMINISTRATION 

DOA-2049 {R03/2012) 

ADMINISTRATIVE RULES 

DIVISION OF EXECUTIVE BUDGET AND FINANCE 

101 EAST WILSON STREET, 10TH FLOOR 

P.O. BOX 7864 

MADISON, WI 53707-7864 

FAX: {608) 267-0372 

Fiscal Estimate & Economic Impact Analysis 

1. Type of Estimate and Analysis 

1Zl Original D Updated Ocorrected 

2. Administrative Rule Chapter, Title and Number 

NR 400 Air Pollution Control Defmitions, NR 405 Prevention of Significant Deterioration, NR 408 Construction Pennits 

for Direct Major Sources in Nonattairnnent Areas, and NR 410 Air Permit, Emission, and Inspection Fees 

3. Subject 

Proposed rules relating to consistency with federal major source permit review requirements and clean-up of rules related 

to the former indirect source permit rogram. 

4. Fund Sources Affected 5. Chapter 20, Slats. Appropriations Affected 

0 GPR 0 FED 0 PRO 0 PRS 0 SEG 0 SEG-S 

6. Fiscal Effect of Implementing the Rule 

181 No Fiscal Effect D Increase Existing Revenues 

0 Indeterminate D Decrease Existing Revenues 

7. The Rule Will Impact the Following (Check All That Apply) 

D Increase Costs 

D Could Absorb Within Agency's Budget 

0 Decrease Cost 

D State's Economy fZ1 Specific Businesses/Sectors 

D Local Government Units D Public Utility Rate Payers 

D Small Businesses (if checked, complete Attachment A) 

8. Would Implementation and Compliance Costs Be Greater Than $20 million? 

DYes 1Z1 No 

9. Policy Problem Addressed by the Rule 

The DNR is proposing to amend definitions in chs. NR 400, 405, and 408, Wis. Adm. Code, related to the major new 

source permit review program for both attainment and nonattainment areas. Definitions proposed to be amended include 

PM2.5 emissions, PMlO emissions, major modification, and regulated New Source Review (NSR) air contaminant. 

These changes do not represent a policy problem, but are being proposed in response to deficiencies identified by the 

U.S. Environmental Protection Agency (USEPA), and are necessary to maintain approval of the state implementation 

plan. 

The DNR is also proposing to repeal several rule provisions whose purpose was in support of an indirect source permit 

program. This permit program was previously implemented through ch. NR 411, which was repealed through legislative 

action. The provisions include several definitions and permit fees in chs. NR 400 and 410, Wis. Adm. Code, 

respectively. These proposed changes do not represent a policy problem, but are appropriate since the purpose of the 

rules affected was only related to ch. NR 411. 

10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that 

may be affected by the proposed rule that were contacted for comments. 

The businesses that were contacted for comment were all those listed as major sources by the DNR. Additionally, 

Wisconsin Manufacturers and Commerce, Wisconsin Paper Council, and the Wisconsin Utilities Association were 

contacted. 

11. Identify the local governmental units that participated in the development of this EIA. 

None 

12. Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local 

Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be 

Incurred) 

The proposed changes to the new source review program are being made to ensure consistency with federal regulations 

and implementation policy governing this permit program. DNR believes that the proposed rule changes will not have an 

economic impact on any of the entities listed or on the state's economy as a whole because there wiJJ be no change from 

1 
STATE OF WISCONSIN 

DEPARTMENT OF ADMINISTRATION 

DOA-2049 (R03/2012) 

ADMINISTRATIVE RULES 

DIVISION OF EXECUTIVE BUDGET AND FINANCE 

101 EAST WILSON STREET, 10TH FLOOR 

P.O. BOX 7864 

MADISON, WI 53707-7864 

FAX: (608) 267.()372 

Fiscal Estimate & Economic Impact Analysis 

the way DNR currently implements the requirements. In response to a request for information on the economic impacts 

of the proposed rules, three companies responded that they had no input because they believed the proposed rules would 

not have an economic impact on them. One commenter responded that the proposed rule provided ec.onomic benefit and 

asked the DNR to consider providing an analysis of the benefit Additionally, the commenter felt that the proposed rules 

addressed broader policy issues whose economic benefits should be analyzed. DNR does not believe the proposed rules 

provide economic benefit The economic benefit from the repeal of ch. NR 411 occmTed when the chapter was repealed 

through legislative action and is not due to the clean-up action. Testimony, including an estimate of the costs associated 

with the indirect source penn it program, was given at the time of the legislative action. The portions of the rule package 

associated with the major new source review program found in chs. NR 405 and 408 are amendments to ensure that the 

rules align with current practice as well as USEPA policy and do not represent changes in implementation. The 

economic impact analysis speaks to the economic impacts of the proposed rules, not the underlying statutes that give 

DNR the authority for rulemaking. 

13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule 

The alternative to this rule action is to keep the rules as they are which USEPA has already identified as an inconsistency 

with the major source permit program. In the Federal Register, USEPA stated that they are under obligation to 

promulgate a Federal Implementation Plan (FIP) addressing the disapproved portions of the associated state 

implementation plan within 2 years. The Federal Register states that the FIP will not be promulgated ifDNR rectifies the 

deficiencies within the 2 year timeframe. Not repealing sections of chs. NR 400 and 410 in response to the repeal ofNR 

411 by the legislature would potentially create confusion and perpetuate an inconsistency between DNR rules and state 

statute. 

14. Long Range Implications of Implementing the Rule 

The proposed rule changes to the new source review program do not represent changes in operation by DNR, so there are no long 

term implications. The proposed rule changes to the indirect source fee structure are of a clean-up nature and also have no long term 

im lications. 

15. Compare With Approaches Being Used by Federal Government 

The purpose of the proposed changes related to the major souce permit program is to ensure state rules are consistent 

with federal regulations. The federal government does not have regulations for an indirect source permit program. 

16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota) 

Illinois and Minnesota are states delegated by the USEP A to implement the federal air pollution program, so they are 

directly implementing the federal program. Iowa and Michigan, similar to Wisconsin, are SIP-approved states, so they 

are also implementing a federal program, but through their own state rules and regulations. It is the goal of SIP-approved 

states to implement federal programs in accordance with federal regulations. The majority of this rule package addresses 

changes necessary to comply with federal regulations. Those changes not dictated by federal regulations are associated 

with the repeal of fees related to the indirect source program which is no longer existing in Wisconsin, thereby 

addressing a current internal inconsistenc 

17. Contact Name 18. Contact Phone Number 

Gail Good (608) 266-1058 

This document can be made available in alternate formats to individuals with disabilities upon request. 

2 
STATE OF WISCONSIN 

DEPARTMENT OF ADMINISTRATION 

DOA-2049 (R03/2012) 

ADMINISTRATIVE RULES 

DIVISION OF EXECUTIVE BUDGET AND FINANCE 

101 EAST WILSON STREET, 10TH FLOOR 

P.O. BOX 7864 

MADISON, WI 53707-7864 

FAX: (608) 267-()372 

Fiscal Estimate & Economic Impact Analysis 

ATTACHMENT A 

1. Summary of Rule's Economic and Fiscal Impact on Small Businesses (Separately for each Small Business Sector, Include 

Implementation and Compliance Costs Expected to be Incurred) 

2. Summary of the data sources used to measure the Rule's impact on Small Businesses 

3. Did the agency consider the following methods to reduce the impact of the Rule on Small Businesses? 

D Less Stringent Compliance or Reporting Requirements 

D Less Stringent Schedules or Deadlines for Compliance or Reporting 

D Consolidation or Simplification of Reporting Requirements 

D Establishment of performance standards in lieu of Design or Operational Standards 

D Exemption of Small Businesses from some or all requirements 

D Other, describe: 

4. Describe the methods incorporated into the Rule that will reduce its impact on Small Businesses 

5. Describe the Rule's Enforcement Provisions 

6. Did the Agency prepare a Cost Benefit Analysis (if Yes, attach to form) 

DYes D No 

3 
ORDER OF TIIE STATE OF WISCONSIN NATURAL RESOURCES BOARD 

REPEALING, AMENDING, AND CREATING RULES 

The Wisconsin Natural Resources Board adopts an order to repeal NR 400.02 (101) and (106), and 410.03 

(3); to amend NR 400.02 (123m) and (124), 405.02 (21) (b) 5. a. and b. and 6., and (25i) (a), 408.02 (20) 

(e) 5. a. and b. and 6., 408.02 (29m) (c), and 408.06 (I) (a); and to create NR 405.02 (25i) (ag) and (ar), 

and 408.02 (29m) (d), relating to revisions to air pollution control rules in chs. NR 405 and 408, necessary 

to maintain consistency with federal requirements, as well as in chs. NR 400 and 410, related to the repeal 

ofch. NR411. 

AM-21-12 

Analysis Prepared by the Department of Natural Resources 

1. Statute interpreted: Section 285.11 (I) and (6), Stats. The State Implementation Plan developed under 

s. 285.11 (6), Stats., is revised. 

2. Statutory authority: Sections 227.11 (2)(a), 285.11 (1), (16), and (17), and 285.60 (!!)(b). 

3. Explanation of agency authority: Section 227.11 (2) (a), Slats., gives state agencies general rulemaking authority. Section 285.11 (!), Stats., gives the Wisconsin Department ofNatural Resources 

(WDNR) the authority to promulgate rules implementing and consistent with ch. 285, Stats. Section 

285.11 (6), Stats., requires WDNR to develop a plan for the prevention, abatement, and control of air 

pollution. The plan must conform with the Clean Air Act and is necessary for new source review 

implementation. Section 285.11 (16), Slats., requires WDNR to promulgate rules that may limit the 

classification of a major source to specified air contaminants. Section 285.11 (17), Stats., requires WDNR 

to promulgate rules, consistent with the federal Clean Air Act, that modifY the term 'modification' as it 

relates to specific categories of stationary sources. Section 285.60 (II) (b), Stats., establishes that the 

WDNR may not require a permit for an indirect source under ch. 285, Stats. 

4. Related statute or rule: There are no related statutes that are not identified above. 

5. Plain language analysis: The objective of this rule package is to revise language in chs. NR 400, 405, 

and 408 to maintain consistency with federal requirements and definitions. Additionally, sections of chs. 

NR 400 and 41 0 need to be repealed due to the repeal of ch. NR 411. 

In May 2006, WDNR requested approval by the U.S. Environmental Protection Agency (USEPA) of rules 

promulgated by Wisconsin to incorporate federal New Source Review Reform requirements as a revision 

to the State Implementation Plan (SIP). The USEPA approved the SIP revisions, but subsequently 

requested, through a narrow disapproval, changes to language in chs. NR 405 and 408. The changes 

pertain to the fuel use prohibition that is part of the definition of"major modification". 

Section NR 405.02 (25i) defines "Regulated NSR air contaminant" and specifically identifies volatile 

organic compounds as a precursor for ozone. USEPA has requested inclusion of nitrogen oxides (NO,) in 

the definition for clarification purposes. Similarly USEPA requires, through its 2008 New Source Review 

Rule, explicit identification ofNOx and sulfur dioxide (S02) as precursors to particulate matter with a 

diameter of2.5 micrometers or less (PM2.5) within the definition of"Regulated NSR air contaminant". 

WDNR has also amended the definition of"Regulated NSR air contaminant" ins. NR 408.02 (29m) to 

specifically address precursor pollutants in nonattainment areas. Additionally, WDNR will amend the 

1 
definitions ofPM2.s and particulate matter with a diameter of I 0 micrometers or less (PM10) to address a 

USEPA-identified SIP deficiency. The definitions as currently written do not specifically mention 

condensables as required in the federal2008 New Source Review Rule. 

On April27, 2011, the Joint Committee for Review of Administrative Rules (JCRAR) adopted a motion 

under s. 227.26 (2) (d), Slats., suspending ch. NR 411. Subsequent passage of legislation introduced by 

JCRAR in support of the suspension (see 2011 Wisconsin Act 121 ), resulted in the repeal of ch. NR 411. 

The primary purpose of ch. NR 411 had been to control carbon monoxide emissions from indirect sources 

through conditions established in construction and operation permits. Therefore the WDNR proposes to 

repeal rules whose only purpose is in support of ch. NR 411. Rules proposed for repeal include ss. NR 

400.02 (101) and (106), and 410.03 (3). Sections NR 400.02 (101) and (106) define 'modified indirect 

source' and 'new indirect source' respectively. Section NR 410.03 (3) establishes fees for the application 

and issuance of permits to construct or modify an indirect source. 

6. Summary of, and comparison with, existing or proposed federal statutes and regulations: In a 

letter dated June 17, 2009, the USEPA notified the WDNR that the definition of the term "major 

modification" ins. NR 405.02 was inadequate because it failed to identify permits issued under federal 

authority. Wisconsin's Prevention of Significant Deterioration (PSD) program was approved into its SIP 

on June 28, 1999. Before that, PSD construction permits were issued under federal authority. When s. NR 

405.02 (21) (b) 5. was written, the references to federal authority were inadvertently omitted. Because the 

federal citations were omitted from the rule, USEP A identified that in a very limited situation, the current 

state definition would allow a source to make a change to use a different fuel or raw material without 

undergoing major new source permit review for the change, even though the change could be prohibited 

under a federal permit. The WDNR will amend this definition to ensure that it is consistent with USEPA 

rule and policy and recognizes all federally-issued permits. WDNR is likewise amending the definition of 

"major modification" at s. NR 408.02 (20) for nonattainment area new source review. 

The alternative to this rule action is to keep the rules as they are which USEPA has already identified as an 

inconsistency with federal rules. However, in a Federal Register filed June 15, 2012, US EPA disapproved 

narrow portions of the SIP pertaining to permit requirements in chs. NR 405 and 408 that would be 

addressed with this rulemaking. In the Federal Register, USEPA stated that they are under obligation to 

promulgate a Federal Implementation Plan (PIP) addressing the disapproved portions of the SIP within 2 

years. The Federal Register states that the PIP will not be promulgated ifWDNR rectifies the deficiencies 

within the 2 year timefrarne. 

The clarifications of NO, as a precursor to ozone and NO, and S02 as precursors to PM2.s. as well as the 

clarification of accounting for PM2.s and PM10 condensables as a portion ofPM2.5 and PM10 emissions are 

not policy changes nor do they change how WDNR currently implements chs. NR 405 and 408 

requirements. On June 15,2012, USEPA disapproved a narrow portion of Wisconsin's SIP for the 1997 

ozone National Ambient Air Quality Standard pertaining to air construction permitting. This was done 

because NO, was not explicitly identified as a precursor to ozone as part of PSD permit program 

requirements. The final disapproval triggered a requirement that USEPA promulgate a PIP addressing the 

deficiency no later than 2 years from the date of disapproval. USEP A published a proposed disapproval of 

Wisconsin's submittal on December 18,2012, because the submittal did not meet the 2008 PM2.s SIP 

requirements. Specifically, the revisions submitted did not explicitly define the precursors of PM2.s, nor did 

they contain the prescribed language to ensure that gases that condense to form particulate matter (PM), 

known as condensables, are regulated as part ofPM2.s and PM ofless than 10 micrometer (PM10) 

emissions. Final disapproval to portions of the SIP relating to identifying precursors of PM2.5 will also 

result in the promulgation of a PIP unless the deficiencies are addressed. 

2 
Not repealing sections of cbs. NR 400 and 410 in response to the repeal ofNR 411 by the legislature 

would potentially create confitsion and perpetuate an inconsistency between WDNR mles and state statute. 

7. Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan and Minnesota): 

Illinois and Minnesota are delegated states, so they are directly implementing the federal program and not 

implementing their programs through a State Implementation Plan (SIP), as Wisconsin does. Iowa and 

Michigan, similar to Wisconsin, are SIP approved states, so they are also implementing a federal program, 

but through their own state rules and regulations. It is the goal of SIP-approved states to implement federal 

programs in accordance with the regulations set out in federal code. The majority of this rule package 

addresses changes necessary to comply with federal regulations. Those changes not dictated by federal 

regulations are associated with the repeal of fees related to the indirect source program which is no longer 

existing in Wisconsin, thereby addressing a current internal inconsistency. 

8. Summary of factual data and analytical methodologies used and how any related findings 

support the regulatory approach chosen: 

The WDNR did not use any factual data or analytical methodologies in developing the proposed rules. The 

changes proposed in this rule package are based on deficiencies in the rules identified by the USEPA and a 

comparison of the current state rules to the federal rules. 

9. Analysis and supporting documents used to determine the effect on small business or in 

preparation of an economic impact analysis: The proposed changes to the new source permit review 

programs only affect major sources which typically do not include small businesses. The WDNR relied on 

experience in implementation of the new source permit review program to conclude that small businesses 

would not be affected by the proposed changes. No supporting documents or other analyses were used. 

The proposed changes related to the former indirect source permit program will not have any effect on 

small businesses since the indirect permit program has been repealed and the proposed changes are of a 

clean-up nature only. 

10. Effect on small business: WDNR does not believe that the proposed rule revisions will affect small 

businesses. 

11. Agency contact person: Gail Good; P.O. Box 7921, Madison, WI 53707-7921; Telephone number 

(608) 266-1058; email address: gail.good@wisconsin.gov. 

SECTION 1. NR 400.02 (101) and (106) are repealed. 

SECTION 2. NR 400.02 (123m) and (124) are amended to read: 

NR 400.02 (123m) "PM2.5 emissions" means PM2.5 emitted to the ambient air as measured by an 

applicable reference method or an equivalent or alternative method specified by the department. PM25 

emissions include filterable emissions and gaseous emissions from a source or activity that condense to 

form particulate matter at ambient temperatures. 

(124) "PM10 emissions" means finely divided solid or liquid material, with an aerodynamic 

diameter less than or equal to a nominal I 0 micrometers, emitted to the ambient air as measured by an 

applicable reference method or an equivalent or alternative method specified by the department. PMlQ 

3 
emissions include filterable emissions and gaseous emissions from a source or activity that condense to 

form particulate matter at ambient temperatures. 

SECTION 3. NR 405.02 (21) (b) 5. a. and b. and 6. are amended to read: 

NR 405.02 (21) (b) 5. a. The source was capable of accommodating the alternative fuel or raw 

material before January 6, 1975, unless the change would be prohibited under any federally enforceable 

permit condition which was established after January 6, 197 5 pursuant to this chapter or ch. NR 406 or 

408 or under an operation penni! issued pursuant to ch. NR 407, or pursuant to a permit issued under 40 

CFR Part 51 Appendix S, 40 CFR 52.21, or regulations approved pursuant to 40 CFR Part 51 subpart I. 

b. The source is approved to use the alternative fuel or raw material under any permit issued under 

this chapter or ch. NR 406, 407, or 408, or pursuant to a permit issued under 40 CFR Part 51 Appendix S, 

40 CFR 52.21, or regulations approved pursuant to 40 CFR Part 51 subpart I. 

6. An increase in the hours of operation or in the production rate, unless the change would be 

prohibited under any federally enforceable permit condition which was established after January 6, 197 5; 

pursuant to this chapter, ch. NR 406, or 408 er qg CPR 52.21 or under an operation permit issued pursuant 

to ch. NR 407, or pursuant to a permit issued under 40 CFR Part 51 Appendix S, 40 CFR Part 52.21, or 

regulations approved pursuant to 40 CFR Part 51 subpart I. 

SECTION 4. NR 405.02 (25i) (a) is amended to read: 

NR 405.02 (25i) (a) Any air contaminant for which a national ambient air quality standard has 

been promulgated alia fill)' eeBstituellts er rreeursers fur the air eeBtamillaBts idelltified by the 

admiHistrater, e.g., velatile ergaHie eemreuads are rreemsers fur ezeHe. 

(Nate) ~!itregell ellides have aeell idelltified by the admiHistrater as rreeursers fur ezeHe. 

SECTION 5. NR 405.02 (25i) (ag) and (ar) are created to read: 

NR 405.02 (25i) (ag) PM25 emissions and PM10 emissions. As defmed ins. NR 400.02 (123m) 

and (124), respectively, these terms include filterable emissions and gaseous emissions from a source or 

activity which condense to form particulate matter at ambient temperatures. 

(ar) Any air contaminant that is identified under this paragraph as a precursor to an air contaminant 

for which a national ambient air quality standard has been promulgated by the EPA, or that the EPA has 

determined to be a constituent or precursor to an air contaminant for which a national ambient air quality 

standard has been promulgated by the EPA. The precursors identified by the administrator are as follows: 

4 
1. Volatile organic compounds and nitrogen oxides are precursors to ozone in all attainment and 

unclassifiable areas. 

2. Sulfur dioxide is a precursor to PM25 in all attainment and unclassifiable areas. 

3. Nitrogen oxides are precursors to PM2.

5 in all attainment and unclassifiable areas, unless the 

department demonstrates to the administrator's satisfaction or the EPA demonstrates that emissions of 

nitrogen oxides from sources in a specific area are not a significant contributor to the area's ambient PM25 

concentrations. 

SECTION 6. NR 408.02 (20) (e) 5. a. and b. and 6. are amended to read: 

NR 408.02 (20) (e) 5. a. The source was capable of accommodating before December 21, 1976, 

unless the change would be prohibited under any federally enforceable permit condition which was 

established after December 21, 1976 pursuant to this chapter or ch. NR 405 or 406 or under an operation 

permit issued pursuant to ch. NR 407, or pursuant to a permit issued under 40 CFR Part 51 Appendix S. 

40 CFR 52.21, or regulations approved pursuant to 40 CFR Part 51 subpart I. 

b. The source is approved to use an alternative fuel or raw material under any permit issued under 

this chapter or ch. NR 405, 406, or 407. or pursuant to a permit issued under 40 CFR Part 51 Appendix S, 

40 CFR 52.21, or regulations approved pursuant to 40 CFR Part 51 subpart I. 

6. An increase in the hours of operation or in the production rate, unless the change would be 

prohibited under any federally enforceable permit condition which was established after December 21, 

1976 pursuant to this chapter, ch. NR 405, or 406 er tll.is ell.aJ3ter, or under operation permits issued 

pursuant to ch. NR 407. or pursuant to a permit issued under 40 CFR Pmt 51 Appendix S, 40 CFR 52.21, 

or regulations approved pursuant to 40 CFR Pmt 51 subpart I. 

SECTION 7. NR 408.02 (29m) (c) is amended to read: 

NR 408.02 (29m) (c) Any air contaminant that is identified under this paragraph as a eenstirueflt 

er precursor of a general air contaminant listed under par. (a) or (b), or that the EPA has determined to be a 

constituent or precursor of a general air contaminant listed under par. (a) or (b), provided that a constituent 

or precursor pollutant may only be regulated under this chapter er eli. NR 405 as part of regulation of the 

general air contaminant. The precursors identified by the administrator are as follows: 

I. Volatile organic compounds and nitrogen oxides are precursors to ozone in all ozone 

nonattainment areas. 

2. Sulfi.u dioxide is a precursor to PM2.5 in all PM25 nonattainment areas. 

3. Nitrogen oxides are presumed to be precursors to PM2 5 in all PM2 5 nonattainment areas, unless 

5 
the department demonstrates to the administrator's satisfaction or the EPA demonstrates that emissions of 

nitrogen oxides from sources in a specific area are not a significant contributor to the area's ambient PM, 5 

concentrations. 

SECTION 8. NR 408.02 (29m) (d) is created to read: 

NR 408.02 (29m) (d) PM25 emissions and PM10 emissions. As defined ins. NR 400.02 (123m) 

and (124), respectively, these terms include filterable emissions and gaseous emissions from a source or 

activity which condense to fonu particulate matter at ambient temperatures. 

SECTION 9. NR 408.06 (I) (a) is amended to read: 

NR 408.06 (1) (a) G&ets Except as provided in par. (em), offsets shall be of the same air 

contaminant class, that is, volatile organic compounds, particulate matter, carbon monoxide, nitrogen 

oxides, sulfur dioxide, or lead. 

SECTION 10. NR 410.03 (3) is repealed. 

SECTION 11. EFFECTIVE DATE. This rule shall take effect on the first day of the month following 

publication in the Wisconsin administrative register as provided ins. 227.22 (2) (intra.), Slats. 

SECTION 12. BOARD ADOPTION. This rule was approved and adopted by the State of Wisconsin 

Natural Resources Board on _________ _ 

Dated at Madison, Wisconsin _______________ . 

STATE OF WISCONSIN 

DEPARTMENT OF NATURAL RESOURCES 

By ________________________ __ 

Cathy Stepp, Secretary 

(SEAL) 

6 
ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD

REPEALING, AMENDING, AND CREATING RULES

The Wisconsin Natural Resources Board adopts an order to repeal NR 400.02 (101) and (106), and 410.03 

(3); to amend NR 400.02 (123m) and (124), 405.02 (21) (b) 5. a. and b. and 6., and (25i) (a), 408.02 (20) 

(e) 5. a. and b. and 6., 408.02 (29m) (c), and 408.06 (1) (a); and to create NR 405.02 (25i) (ag) and (ar), 

and 408.02 (29m) (d), relating to revisions to air pollution control rules in chs. NR 405 and 408, necessary 

to maintain consistency with federal requirements, as well as in chs. NR 400 and 410, related to the repeal 

of ch. NR 411.

AM-21-12

Analysis Prepared by the Department of Natural Resources

1. Statute interpreted: Section 285.11 (1) and (6), Stats. The State Implementation Plan developed under 

s. 285.11 (6), Stats., is revised.

2. Statutory authority: Sections 227.11 (2) (a), 285.11 (1), (16), and (17), and 285.60 (11) (b).

3. Explanation of agency authority: Section 227.11 (2) (a), Stats., gives state agencies general rulemaking authority. Section 285.11 (1), Stats., gives the Wisconsin Department of Natural Resources

(WDNR) the authority to promulgate rules implementing and consistent with ch. 285, Stats. Section 

285.11 (6), Stats., requires WDNR to develop a plan for the prevention, abatement, and control of air 

pollution. The plan must conform with the Clean Air Act and is necessary for new source review 

implementation. Section 285.11 (16), Stats., requires WDNR to promulgate rules that may limit the 

classification of a major source to specified air contaminants. Section 285.11 (17), Stats., requires WDNR 

to promulgate rules, consistent with the federal Clean Air Act, that modify the term ‘modification’ as it 

relates to specific categories of stationary sources. Section 285.60 (11) (b), Stats., establishes that the 

WDNR may not require a permit for an indirect source under ch. 285, Stats.

4. Related statute or rule: There are no related statutes that are not identified above.

5. Plain language analysis: The objective of this rule package is to revise language in chs. NR 400, 405,

and 408 to maintain consistency with federal requirements and definitions. Additionally, sections of chs. 

NR 400 and 410 need to be repealed due to the repeal of ch. NR 411.

In May 2006, WDNR requested approval by the U.S. Environmental Protection Agency (USEPA) of rules 

promulgated by Wisconsin to incorporate federal New Source Review Reform requirements as a revision 

to the State Implementation Plan (SIP). The USEPA approved the SIP revisions, but subsequently 

requested, through a narrow disapproval, changes to language in chs. NR 405 and 408. The changes 

pertain to the fuel use prohibition that is part of the definition of “major modification”.

Section NR 405.02 (25i) defines “Regulated NSR air contaminant” and specifically identifies volatile 

organic compounds as a precursor for ozone. USEPA has requested inclusion of nitrogen oxides (NOx) in 

the definition for clarification purposes. Similarly USEPA requires, through its 2008 New Source Review 

Rule, explicit identification of NOx and sulfur dioxide (SO2) as precursors to particulate matter with a 

diameter of 2.5 micrometers or less (PM2.5) within the definition of “Regulated NSR air contaminant”. 

WDNR has also amended the definition of “Regulated NSR air contaminant” in s. NR 408.02 (29m) to 

specifically address precursor pollutants in nonattainment areas. Additionally, WDNR will amend the 

1
definitions of PM2.5 and particulate matter with a diameter of 10 micrometers or less (PM10) to address a 

USEPA-identified SIP deficiency. The definitions as currently written do not specifically mention 

condensables as required in the federal 2008 New Source Review Rule.

On April 27, 2011, the Joint Committee for Review of Administrative Rules (JCRAR) adopted a motion 

under s. 227.26 (2) (d), Stats., suspending ch. NR 411. Subsequent passage of legislation introduced by 

JCRAR in support of the suspension (see 2011 Wisconsin Act 121), resulted in the repeal of ch. NR 411. 

The primary purpose of ch. NR 411 had been to control carbon monoxide emissions from indirect sources 

through conditions established in construction and operation permits. Therefore the WDNR proposes to 

repeal rules whose only purpose is in support of ch. NR 411. Rules proposed for repeal include ss. NR 

400.02 (101) and (106), and 410.03 (3). Sections NR 400.02 (101) and (106) define ‘modified indirect 

source’ and ‘new indirect source’ respectively. Section NR 410.03 (3) establishes fees for the application 

and issuance of permits to construct or modify an indirect source.

6. Summary of, and comparison with, existing or proposed federal statutes and regulations: In a 

letter dated June 17, 2009, the USEPA notified the WDNR that the definition of the term “major 

modification” in s. NR 405.02 was inadequate because it failed to identify permits issued under federal 

authority. Wisconsin’s Prevention of Significant Deterioration (PSD) program was approved into its SIP 

on June 28, 1999. Before that, PSD construction permits were issued under federal authority. When s. NR 

405.02 (21) (b) 5. was written, the references to federal authority were inadvertently omitted. Because the 

federal citations were omitted from the rule, USEPA identified that in a very limited situation, the current 

state definition would allow a source to make a change to use a different fuel or raw material without 

undergoing major new source permit review for the change, even though the change could be prohibited 

under a federal permit. The WDNR will amend this definition to ensure that it is consistent with USEPA 

rule and policy and recognizes all federally-issued permits. WDNR is likewise amending the definition of 

“major modification” at s. NR 408.02 (20) for nonattainment area new source review. 

The alternative to this rule action is to keep the rules as they are which USEPA has already identified as an 

inconsistency with federal rules. However, in a Federal Register filed June 15, 2012, USEPA disapproved 

narrow portions of the SIP pertaining to permit requirements in chs. NR 405 and 408 that would be 

addressed with this rulemaking. In the Federal Register, USEPA stated that they are under obligation to 

promulgate a Federal Implementation Plan (FIP) addressing the disapproved portions of the SIP within 2 

years. The Federal Register states that the FIP will not be promulgated if WDNR rectifies the deficiencies 

within the 2 year timeframe. 

The clarifications of NOx as a precursor to ozone and NOx and SO2 as precursors to PM2.5, as well as the 

clarification of accounting for PM2.5 and PM10 condensables as a portion of PM2.5 and PM10 emissions are 

not policy changes nor do they change how WDNR currently implements chs. NR 405 and 408 

requirements. On June 15, 2012, USEPA disapproved a narrow portion of Wisconsin’s SIP for the 1997 

ozone National Ambient Air Quality Standard pertaining to air construction permitting. This was done 

because NOx was not explicitly identified as a precursor to ozone as part of PSD permit program 

requirements. The final disapproval triggered a requirement that USEPA promulgate a FIP addressing the 

deficiency no later than 2 years from the date of disapproval. USEPA published a proposed disapproval of 

Wisconsin's submittal on December 18, 2012, because the submittal did not meet the 2008 PM2.5 SIP 

requirements. Specifically, the revisions submitted did not explicitly define the precursors of PM2.5, nor did 

they contain the prescribed language to ensure that gases that condense to form particulate matter (PM), 

known as condensables, are regulated as part of PM2.5 and PM of less than 10 micrometer (PM10) 

emissions. Final disapproval to portions of the SIP relating to identifying precursors of PM2.5 will also

result in the promulgation of a FIP unless the deficiencies are addressed.

2
Not repealing sections of chs. NR 400 and 410 in response to the repeal of NR 411 by the legislature 

would potentially create confusion and perpetuate an inconsistency between WDNR rules and state statute.

7. Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan and Minnesota):

Illinois and Minnesota are delegated states, so they are directly implementing the federal program and not 

implementing their programs through a State Implementation Plan (SIP), as Wisconsin does. Iowa and 

Michigan, similar to Wisconsin, are SIP approved states, so they are also implementing a federal program, 

but through their own state rules and regulations. It is the goal of SIP-approved states to implement federal 

programs in accordance with the regulations set out in federal code. The majority of this rule package 

addresses changes necessary to comply with federal regulations. Those changes not dictated by federal 

regulations are associated with the repeal of fees related to the indirect source program which is no longer 

existing in Wisconsin, thereby addressing a current internal inconsistency.

8. Summary of factual data and analytical methodologies used and how any related findings 

support the regulatory approach chosen:

The WDNR did not use any factual data or analytical methodologies in developing the proposed rules. The 

changes proposed in this rule package are based on deficiencies in the rules identified by the USEPA and a 

comparison of the current state rules to the federal rules.

9. Analysis and supporting documents used to determine the effect on small business or in 

preparation of an economic impact analysis: The proposed changes to the new source permit review 

programs only affect major sources which typically do not include small businesses. The WDNR relied on 

experience in implementation of the new source permit review program to conclude that small businesses 

would not be affected by the proposed changes. No supporting documents or other analyses were used. 

The proposed changes related to the former indirect source permit program will not have any effect on 

small businesses since the indirect permit program has been repealed and the proposed changes are of a 

clean-up nature only.

10. Effect on small business: WDNR does not believe that the proposed rule revisions will affect small 

businesses. 

11. Agency contact person: Gail Good; P.O. Box 7921, Madison, WI 53707-7921; Telephone number 

(608) 266-1058; email address: gail.good@wisconsin.gov .

SECTION 1. NR 400.02 (101) and (106) are repealed.

SECTION 2. NR 400.02 (123m) and (124) are amended to read:

NR 400.02 (123m) “PM2.5 emissions” means PM2.5 emitted to the ambient air as measured by an 

applicable reference method or an equivalent or alternative method specified by the department. PM2.5

emissions include filterable emissions and gaseous emissions from a source or activity that condense to 

form particulate matter at ambient temperatures.

(124) “PM10 emissions” means finely divided solid or liquid material, with an aerodynamic 

diameter less than or equal to a nominal 10 micrometers, emitted to the ambient air as measured by an 

applicable reference method or an equivalent or alternative method specified by the department. PM10

3
emissions include filterable emissions and gaseous emissions from a source or activity that condense to 

form particulate matter at ambient temperatures.

SECTION 3. NR 405.02 (21) (b) 5. a. and b. and 6. are amended to read:

NR 405.02 (21) (b) 5. a. The source was capable of accommodating the alternative fuel or raw 

material before January 6, 1975, unless the change would be prohibited under any federally enforceable 

permit condition which was established after January 6, 1975 pursuant to this chapter or ch. NR 406 or 

408 or under an operation permit issued pursuant to ch. NR 407, or pursuant to a permit issued under 40 

CFR Part 51 Appendix S, 40 CFR 52.21, or regulations approved pursuant to 40 CFR Part 51 subpart I.

b. The source is approved to use the alternative fuel or raw material under any permit issued under 

this chapter or ch. NR 406, 407, or 408, or pursuant to a permit issued under 40 CFR Part 51 Appendix S,

40 CFR 52.21, or regulations approved pursuant to 40 CFR Part 51 subpart I.

6. An increase in the hours of operation or in the production rate, unless the change would be 

prohibited under any federally enforceable permit condition which was established after January 6, 1975,

pursuant to this chapter, ch. NR 406, or 408 or 40 CFR 52.21 or under an operation permit issued pursuant 

to ch. NR 407, or pursuant to a permit issued under 40 CFR Part 51 Appendix S, 40 CFR Part 52.21, or 

regulations approved pursuant to 40 CFR Part 51 subpart I.

SECTION 4. NR 405.02 (25i) (a) is amended to read:

NR 405.02 (25i) (a) Any air contaminant for which a national ambient air quality standard has 

been promulgated and any constituents or precursors for the air contaminants identified by the 

administrator, e.g., volatile organic compounds are precursors for ozone.

(Note) Nitrogen oxides have been identified by the administrator as precursors for ozone.

SECTION 5. NR 405.02 (25i) (ag) and (ar) are created to read:

NR 405.02 (25i) (ag) PM2.5 emissions and PM10 emissions. As defined in s. NR 400.02 (123m) 

and (124), respectively, these terms include filterable emissions and gaseous emissions from a source or 

activity which condense to form particulate matter at ambient temperatures.

(ar) Any air contaminant that is identified under this paragraph as a precursor to an air contaminant

for which a national ambient air quality standard has been promulgated by the EPA, or that the EPA has 

determined to be a constituent or precursor to an air contaminant for which a national ambient air quality 

standard has been promulgated by the EPA. The precursors identified by the administrator are as follows:

4
1. Volatile organic compounds and nitrogen oxides are precursors to ozone in all attainment and 

unclassifiable areas.

2. Sulfur dioxide is a precursor to PM2.5 in all attainment and unclassifiable areas.

3. Nitrogen oxides are precursors to PM2.5 in all attainment and unclassifiable areas, unless the 

department demonstrates to the administrator’s satisfaction or the EPA demonstrates that emissions of 

nitrogen oxides from sources in a specific area are not a significant contributor to the area’s ambient PM2.5

concentrations.

SECTION 6. NR 408.02 (20) (e) 5. a. and b. and 6. are amended to read:

NR 408.02 (20) (e) 5. a. The source was capable of accommodating before December 21, 1976, 

unless the change would be prohibited under any federally enforceable permit condition which was 

established after December 21, 1976 pursuant to this chapter or ch. NR 405 or 406 or under an operation 

permit issued pursuant to ch. NR 407, or pursuant to a permit issued under 40 CFR Part 51 Appendix S,

40 CFR 52.21, or regulations approved pursuant to 40 CFR Part 51 subpart I.

b. The source is approved to use an alternative fuel or raw material under any permit issued under 

this chapter or ch. NR 405, 406, or 407, or pursuant to a permit issued under 40 CFR Part 51 Appendix S, 

40 CFR 52.21, or regulations approved pursuant to 40 CFR Part 51 subpart I.

6. An increase in the hours of operation or in the production rate, unless the change would be 

prohibited under any federally enforceable permit condition which was established after December 21, 

1976 pursuant to this chapter, ch. NR 405, or 406 or this chapter, or under operation permits issued 

pursuant to ch. NR 407, or pursuant to a permit issued under 40 CFR Part 51 Appendix S, 40 CFR 52.21, 

or regulations approved pursuant to 40 CFR Part 51 subpart I.

SECTION 7. NR 408.02 (29m) (c) is amended to read:

NR 408.02 (29m) (c) Any air contaminant that is identified under this paragraph as a constituent 

or precursor of a general air contaminant listed under par. (a) or (b), or that the EPA has determined to be a 

constituent or precursor of a general air contaminant listed under par. (a) or (b), provided that a constituent 

or precursor pollutant may only be regulated under this chapter or ch. NR 405 as part of regulation of the 

general air contaminant. The precursors identified by the administrator are as follows:

1. Volatile organic compounds and nitrogen oxides are precursors to ozone in all ozone 

nonattainment areas.

2. Sulfur dioxide is a precursor to PM2.5 in all PM2.5 nonattainment areas.

3. Nitrogen oxides are presumed to be precursors to PM2.5 in all PM2.5 nonattainment areas, unless

5
the department demonstrates to the administrator’s satisfaction or the EPA demonstrates that emissions of 

nitrogen oxides from sources in a specific area are not a significant contributor to the area’s ambient PM2.5

concentrations.

SECTION 8. NR 408.02 (29m) (d) is created to read:

NR 408.02 (29m) (d) PM2.5 emissions and PM10 emissions. As defined in s. NR 400.02 (123m) 

and (124), respectively, these terms include filterable emissions and gaseous emissions from a source or 

activity which condense to form particulate matter at ambient temperatures.

SECTION 9. NR 408.06 (1) (a) is amended to read:

NR 408.06 (1) (a) Offsets Except as provided in par. (cm), offsets shall be of the same air 

contaminant class, that is, volatile organic compounds, particulate matter, carbon monoxide, nitrogen 

oxides, sulfur dioxide, or lead.

SECTION 10. NR 410.03 (3) is repealed.

SECTION 11. 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 12. BOARD ADOPTION. This rule was approved and adopted by the State of Wisconsin 

Natural Resources Board on January 22, 2014.

Dated at Madison, Wisconsin _________________________________.

STATE OF WISCONSIN

DEPARTMENT OF NATURAL RESOURCES

By__________________________________

Cathy Stepp, Secretary

(SEAL)

6
EPA Region V 

Wisconsin SIP Submittal 

Completeness Review

Submittal Letter 

1. Signed by Governor’s Designee (Bart Sponseller)? Yes _x__ No ___ 

2. Date of Submittal _March 12, 2014_____________________________________ 

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 _Kristin Hart_______________ Telephone _608-266-6876___________ 

 FAX Number ___608-267-0560____________ 

E-MAIL Address____kristin.hart@wisconsin.go__________________________ 

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 __ 

 No_X_ if No explain. WDNR is submitting this SIP revision for EPA parallel processing. DNR will 

supply additional information when the rule is published in the Wisconsin Register. 

6. The effective date of the regulation is or was ____________________. This rule is not yet finalized. 

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. 

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

the revision? 

 Yes __x_____ 

 No _______ 

 Additional Explanation (if necessary). 

DNR has statutory authority under Sections 227.11(2)(a), 285.11(1),(16), and (17), and 285.60(11)(b), Wis. Stats 

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

 Yes _x___ 

 No_____ 

 Additional Explanation (if necessary). 
2

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____ 

 No_x___ 

 Additional Explanation (if necessary). DNR did not receive any public comments specific to AM-21-12 at 

the public hearing or during the 30 day public comment period 

Technical Issues 

14. Name the all the regulated pollutants affected by the revision? ___________ The submittal addresses EPA 

concerns regarding new source permitting. 

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

 Yes____ 

 No__ ___ 

 Additional Explanation (if necessary) - Not applicable 

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

 Yes_____ 

 No__x___ 

 Additional Explanation (if necessary) 

The submittal acknowledges the change may affect any source having a fuel use prohibition in a new source permit.
3

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__ 

 Additional explanation (if necessary) – Not applicable 

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

if the revision is approved and implemented? 

 Yes____ 

 No____ 

 Additional explanation (if necessary). – Not applicable 

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

 Yes___ 

 No____ 

 Unnecessary__x__ 

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

technology? 

 Yes____ 

 No____ 

 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___ 

 No____ 

 Additional explanation (if necessary). Not applicable 

22. Does the submittal contain enforcement/compliance strategies including how compliance will be 

determined in practice, and at what frequency? 

 Yes___ 

 No___ 

 Additional explanation (if necessary).- Not applicable 

 
4

STATE APPROVABILITY CHECKLISTENFORCEABILITY 

USEPA USE ONLY 

SIP Package Number ___________ 

Date Received by USEPA ________________ 

Date Due_____________________________ 

State: WISCONSIN 
5

WDNR Information 

Subject Matter: Approval of NR 405.02(21)(b)5.a. and b. and 6. in AM-21-12 

Applicability 

USEPA Question USEPA Requirement State Response 

What sources are being regulated? Clear discussion Sources that could make a 

change to use a different fue

of raw material without 

undergoing major new sour

permit review for the chang

under NR 405.02(21)(b)5., 

Wis. Adm. Code. This rule 

section addresses EPA 

concerns contained in 77 FR

35870 regarding “major 

modification”. This 

definitional change will not 

allow sources to make fuel 

changes without going 

through new source permit 

review.. 

What are criteria for exemption? Clear discussion None 

Is calculation procedure for 

exemption clearly specified? 

Supply example calculation or clear explanation 

of how to determine exemption (line by line, 

etc.) 

Not applicable 

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. 

Not applicable 

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 
6

Is bubbling or averaging of any 

type allowed? If yes, state 

criteria. Could a USEPA 

inspector independently determine 

if the criteria were met?? Does 

USEPA have to approve each 

case? 

Explicit description of how averaging, bubbling, 

or equivalency 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. 

Not applicable 

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. DNR has rule making statutory 

authority under Sections 227.11(2)(a), 

285.11(1),(16), and (17), and 

285.60(11)(b), Wis. Stats 
7

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. Not applicable 

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 . 

Not applicable 

Does the rule affirmatively require the 

records be kept? 

There must be clearly defined and 

distinguishable from what constitutes 

a violation. 

Not applicable 

Exemptions

USEPA Question USEPA Requirement State Response 

List any exemptions allowed. Must be clearly defined and 

distinguishable from what constitutes 

a violation. 

Not applicable 

Is the criteria for application clear? Clearly stated. Not applicable 

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 
BEFORE THE

DEPARTMENT OF NATURAL RESOURCES

NOTICE OF PUBLIC HEARING

Natural Resources Board Order AM-21-12

NOTICE IS HEREBY GIVEN That pursuant to ss. 227.16, 227.17, and 285.11, Wis. Stats, the Department 

of Natural Resources, hereinafter the Department, will hold a public hearing to consider the proposed 

changes to chs. NR 400, 405, 408, and 410 related to consistency with federal major source permit 

review requirements and clean-up of rules related to the former indirect source program on the date and 

at the time and location listed below.

NOTICE IS FURTHER GIVEN that the proposed revisions relate to issues for State Implementation Plan 

approvability, and the State Implementation Plan developed under s. 285.11(6), Stats. will be revised.

The Department will also be accepting comment at this hearing on the submittal to the U.S. 

Environmental Protection Agency of final rules promulgated under this rulemaking as part of a revision to 

Wisconsin’s State Implementation Plan.

Hearing Information

Date and Time Location

Tuesday, November 5, 2013, 1:00 to 2:00 PM Natural Resources Building, Room 713, 101 S. 

Webster St., Madison

Reasonable accommodations, including the provision of informational material in an alternative format, 

will be provided for qualified individuals with disabilities upon request. Contact Robert Eckdale in writing 

at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., 

Madison, WI 53703; by email to Robert.Eckdale@wisconsin.gov ; or by calling (608) 266-2856. A request 

must include specific information and be received at least 10 days before the date of the scheduled 

hearing.

Availability of the Proposed Rules and the Fiscal Estimate and Economic Impact Analysis

The proposed rule and supporting documents, including the fiscal estimate and economic impact 

analysis, may be viewed and downloaded from the Administrative Rules System Website at

https://health.wisconsin.gov/admrules/public/Rmo?nRmoId=13843. If you do not have internet access, a 

printed copy of the proposed rule and supporting documents, including the fiscal estimate and economic 

impact analysis, may be obtained free of charge by contacting Robert Eckdale, Department of Natural 

Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI, 53703, or by calling 

(608) 266-2856.

Submitting Comments

Comments on the proposed rule must be received on or before November 8, 2013. Written comments 

may be submitted by U.S. mail, fax, email, or through the internet and will have the same weight and 

effect as oral statements presented at the public hearing. Written comments and any questions on the 

proposed rules should be submitted to:

Gail Good

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S Webster St, Madison, WI 53703

Phone: (608) 266-1058

Fax: (608) 267-0560

E-mail: gail.good@wisconsin.gov

Internet: Use the page for this rulemaking on Administrative Rules System Website (requires registration

to comment) at https://health.wisconsin.gov/admrules/public/Rmo?nRmoId=13843

Analysis Prepared by the Department of Natural Resources
Statute interpreted: Section 285.11 (1) and (6), Stats. The State Implementation Plan developed under s. 

285.11 (6), Stats., is revised.

Statutory authority: Sections 227.11 (2) (a), 285.11 (1), (16) and (17), and 285.60 (11) (b)

Explanation of agency authority: Section 227.11 (2) (a), Stats., gives state agencies general rule-making 

authority. Section 285.11 (1), Stats., gives the Department the authority to promulgate rules implementing 

and consistent with, ch. 285, Stats. Section 285.11 (6), Stats., requires the Department to develop a plan 

for the prevention, abatement, and control of air pollution. The plan must conform with the Clean Air Act 

and is necessary for new source review implementation. Section 285.11 (16) requires the Department to 

promulgate rules that may limit the classification of a major source to specified air contaminants. Section 

285.11 (17) requires the Department to promulgate rules, consistent with the federal Clean Air Act, that 

modify the term ‘modification’ as it relates to specific categories of stationary sources. Section 285.60 

(11) (b), Stats., establishes that the Department may not require a permit for an indirect source under ch. 

285, Stats

Related statute or rule: There are no related statutes that are not identified above.

Plain language analysis: The objective of this rule package is to revise language in chs. NR 400, 405,

and 408 to maintain consistency with federal requirements and definitions. Additionally, sections of chs. 

NR 400 and 410 need to be repealed due to the repeal of ch. NR 411.

In May 2006, the Department requested approval by the U.S. Environmental Protection Agency (USEPA) 

of rules promulgated by Wisconsin to incorporate federal New Source Review Reform requirements as a 

revision to the State Implementation Plan (SIP). The USEPA approved the SIP revisions, but 

subsequently requested changes to language in chs. NR 405 and 408. The changes pertain to the fuel use 

prohibition that is part of the definition of “major modification”. 

Section NR 405.02 (25i) defines “Regulated NSR air contaminant” and specifically identifies volatile 

organic compounds as a precursor for ozone. USEPA has requested inclusion of nitrogen oxides (NOx) in 

the definition for clarification purposes. Similarly USEPA requires, through its 2008 New Source Review 

Rule, explicit identification of NOx and sulfur dioxide (SO2) as precursors to particulate matter with a 

diameter of 2.5 micrometers or less (PM2.5) within the definition of “Regulated NSR air contaminant”. 

The Department has also amended the definition of “Regulated NSR air contaminant” in s. NR 408.02 

(29m) to specifically address precursor pollutants in nonattainment areas. Additionally, the Department

will amend the definitions of PM2.5 and particulate matter with a diameter of 10 micrometers or less 

(PM10) to address a USEPA-identified SIP deficiency. The definitions as currently written do not 

specifically mention condensables as required in the federal 2008 New Source Review Rule.

On April 27, 2011, the Joint Committee for Review of Administrative Rules (JCRAR) adopted a motion 

under s. 227.26 (2) (d), Wis. Stats., suspending ch. NR 411. Subsequent passage of legislation introduced 

by JCRAR in support of the suspension (see 2011 Wisconsin Act 121), resulted in the repeal of ch. NR 

411. The primary purpose of ch. NR 411 had been to control carbon monoxide emissions from indirect 

sources through conditions established in construction and operation permits. Therefore the Department

proposes to repeal rules whose only purpose is in support of ch. NR 411. Rules proposed for repeal 

include ss. NR 400.02 (101) and (106), and 410.03 (3). Section NR 400.02 (101) and (106) define 

‘modified indirect source’ and ‘new indirect source’ respectively. Section NR 410.03 (3) establishes fees 

for the application and issuance of permits to construct or modify an indirect source.

Summary of, and comparison with, existing or proposed federal statutes and regulations: In a letter 

dated June 17, 2009, the USEPA notified the Department that the definition of the term “major 

modification” in s. NR 405.02 was inadequate because it failed to identify permits issued under federal 

authority. Wisconsin’s Prevention of Significant Deterioration (PSD) program was approved into its SIP 

on June 28, 1999. Before that, PSD construction permits were issued under federal authority. When s. NR 
405.02 (21) (b) (5) was written, the references to federal authority were inadvertently omitted. Because 

the federal citations were omitted from the rule, USEPA identified that in a very limited situation, the 

current state definition would allow a source to make a change to use a different fuel or raw material 

without undergoing major new source permit review for the change, even though the change could be 

prohibited under a federal permit. The Department will amend this definition to ensure that it is consistent 

with USEPA rule and policy and recognizes all federally-issued permits. The Department is likewise 

amending the definition of “major modification” at s. NR 408.02 (20) for nonattainment area new source 

review. 

The alternative to this rule action is to keep the rules as they are, which USEPA has already identified as 

an inconsistency with federal rules. However, in a Federal Register filed June 15, 2012, USEPA 

disapproved narrow portions of the SIP pertaining to permit requirements in chs. NR 405 and 408 that 

would be addressed with this rulemaking. In the Federal Register, USEPA stated that they are under 

obligation to promulgate a Federal Implementation Plan (FIP) addressing the disapproved portions of the 

SIP within 2 years. The Federal Register states that the FIP will not be promulgated if Department

rectifies the deficiencies within the 2 year timeframe. 

The clarifications of NOx as a precursor to ozone and NOx and SO2 as precursors to PM2.5 , as well as the 

clarification of accounting for PM2.5 and PM10 condensables as a portion of PM2.5 and PM10 emissions are 

not policy changes nor do they change how Department currently implements chs. NR 405 and 408 

requirements. On June 15, 2012, USEPA disapproved a narrow portion of Wisconsin’s SIP for the 1997 

ozone National Ambient Air Quality Standard pertaining to air construction permitting. This was done 

because NOx was not explicitly identified as a precursor to ozone as part of PSD permit program 

requirements. The final disapproval triggered a requirement that USEPA promulgate a FIP addressing the 

deficiency no later than 2 years from the date of disapproval. USEPA published a proposed disapproval of 

Wisconsin's submittal on December 18, 2012, because the submittal did not meet the 2008 PM2.5 SIP 

requirements. Specifically, the revisions submitted did not explicitly define the precursors of PM2.5, nor 

did they contain the prescribed language to ensure that gases that condense to form particulate matter 

(PM), known as condensables are regulated as part of PM2.5 and PM of less than 10 micrometer (PM10) 

emissions. Final disapproval to portions of the SIP relating to identifying precursors of PM2.5 will also 

result in the promulgation of a FIP unless the deficiencies are addressed.

Not repealing sections of chs. NR 400 and 410 in response to the repeal of ch. NR 411 by the legislature 

would potentially create confusion and perpetuate an inconsistency with Department rules.

Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan and Minnesota):

Illinois and Minnesota are delegated states, so they are directly implementing the federal program and not 

implementing their programs through a State Implementation Plan (SIP), as Wisconsin does. Iowa and 

Michigan, similar to Wisconsin, are SIP approved states, so they are also implementing a federal 

program, but through their own state rules and regulations. It is the goal of SIP-approved states to 

implement federal programs in accordance with the regulations set out in federal code. The majority of 

this rule package addresses changes necessary to comply with federal regulations. Those changes not 

dictated by federal regulations are associated with the repeal of fees related to the indirect source program 

which no longer exists in Wisconsin, thereby addressing a current internal inconsistency.

Summary of factual data and analytical methodologies used and how any related findings support 

the regulatory approach chosen:

The Department did not use any factual data or analytical methodologies in developing the proposed 

rules. The changes proposed in this rule package are based on deficiencies in the rules identified by the 

USEPA and a comparison of the current state rules to the federal rules.

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

preparation of an economic impact analysis: The proposed changes to the new source permit review 

programs only affect major sources which typically do not include small businesses. The proposed 
changes related to the former indirect source permit program will not have any effect on small businesses 

since the indirect permit program has been repealed and the proposed changes are of a clean-up nature 

only. The Department did not use existing documentation in determining the effect on small business or 

in preparation of the economic impact analysis.

Effect on small business (initial regulatory flexibility analysis): The Department does not believe that 

the proposed rule revisions will have an economic impact on small businesses. 

The Small Business Regulatory Coordinator may be contacted at SmallBusiness@dnr.state.wi.us, or by 

calling (608) 266-1959.

Agency contact person: Gail Good; P.O. Box 7921, Madison, WI 53707-7921; Telephone number (608) 

266-1058; email address: gail.good13@wisconsin.gov

Environmental Analysis

The Department has made a preliminary determination that adoption of the proposed rules would not 

involve significant adverse environmental effects and would not need an environmental analysis under ch. 

NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be 

prepared before proceeding. This analysis would summarize the Department’s consideration of the 

impacts of the proposal and any reasonable alternatives.

Fiscal Estimate and Economic Impact Analysis Summary

The Department believes the proposed rules will have no fiscal effect. The changes being proposed 

either amend rules to match current practice and maintain consistency with federal requirements and 

definitions, or eliminate definitions and fees for a program no longer used in Wisconsin.

The Department solicited information and advice on the economic impacts of the proposed rules from 

those who potentially could be affected or who might likely be interested. Most responders to the 

solicitation indicated that they had no input because they believe the proposed rules will have no 

economic impact on them. One responder felt there was economic benefit from the proposed rules and 

asked the Department to quantify that benefit. Additionally, the commenter felt that the proposed rules 

addressed broader policy issues whose economic benefits should be analyzed. The Department does not 

believe the proposed rules provide economic benefit. The economic benefit from the repeal of ch. NR 411 

occurred when the chapter was repealed through legislative action and is not due to the clean-up of 

related rules proposed. Testimony, including an estimate of the costs associated with the indirect source 

permit program, was given at the time of the legislative action. The portions of the rule package 

associated with the major new source review program found in chs. NR 405 and 408 are amendments to 

ensure that the rules align with current Department practice as well as USEPA policy and do not 

represent changes in implementation. The economic impact analysis speaks to the economic impacts of 

the proposed rules, not the underlying statutes that give the Department authority for rulemaking.There 

were no revisions to the Economic Impact Analysis.

Dated at Madison, Wisconsin: September 27, 2013

STATE OF WISCONSIN

DEPARTMENT OF NATURAL RESOURCES

By ____________________

Cathy Stepp, Secretary
BEFORE THE 

DEPARTMENT OF NATURAL RESOURCES 

NOTICE OF PUBLIC HEARING 

·--- N-al - -ural Resources Board Order AM-21-12 

... 

~OTICE IS HEREBY GIVEN That pursuant toss. 227.16, 227.17, and 285.11, Wis. >lals, _the Department of Natural Resources, hereinafter the Department, will hold 1 pubhc heanng to.cons1der the proposed changes to chs. NR 400, 405, 408, and 110 related to consistency w1th federal major source permit review requiremenls and 

;~:n~~~ r'.Jc~\~~ ~;:!~b~~ ~e former indirect source program on the date and at the 

~O ICE IS FURTHER GIVEN tnat the proposed revisions relate to issues for State mplemenlalion Plan approv~bllity, and the State lmplementalion Plan developed mder s. 285.11(6), Slats. Will be r~v1sed. The Department w1ll also be accepting :omment at th1s heanng on the subm!ltal to the U.S. Environmental Protection Agency >f final rules promulgaled under th1s rulemakmg as part of a revision to Wisconsin's l tate lmplemenlation Plan. 

iearlng lnfonnatlon 

'ate and Time 

ruesday, November 5, 2013, 1:00 lo 2:00PM 

Location 

Nalural Resources Building, 

Room 713, 101 S. Webster St., 

Madison 

~easonab e accommodations, including the provision of informational material in m a~ernalive format, will be provided for qualified individuals with disabil~ies upon equesl. Contact Robert Eckdale in writing at.the Department of Natural Resources, lureau of Air Ma emelit (AMf7), 101 S. Webster Sl., Madison, WI 53703; by email 

o ~ d ns n. o ; or by calling (608) 266-2856. A request musl nclude specifi n and be received at leas I 10 days before the date of the 1cheduled hearing. 

~vallabllity of the Proposed Rules and the Fiscal Estimate and Economic Impact ~n lysls 

rhe proposed rule and supporting documents, including the fiscal estimate and !conomic impact analysis, may be viewed and downloaded from the Administrative 

~ul s System Website at https://health.wisconsin.gov/admrules/public/ 

~mo nR old=13843 . If xou do not hav7 internet access, a printed copy of the >reposed rule and supportmg documenls, 1nclud1ng the fiscal estimate and economic mpact analysis, may be obtained free of charge by contacting Robert Eckdale, )epartment of i'latural Resources, Bureau of Air Management (AMn), 101 S. Webster lt., Madison, WI, 53703, or by calling (608) 266-2856. lubmlttlng Comment.. 

:ommenls on the proposed rule must be received on or before November 8, 2013. IVritten comments may be ~ubmitted by U.S. mail, fax, email, or through the Internet md Will have the same we1ght and effect as oral statemenls presented at the public 1earing. Written comments and any questions on the proposed rules should be 

;ubmitted to: 

3ail Good 

)apartment of Natural Resources 

lureau of Air Management (AM/7) 

101 S Webster St, Madison, WI 53703 

'hone: (608) 266-1058 

'ax: (608) 267-0560 

:-mail: gail.good@wiscosnsin.gov 

nternet: Use the_ pag_e for this rulemaking on Administrative Rules System IV e (requ1res regiStration to comment) at https //hea~h wisconsln gov/ dmrules/ >ublic/Rmo?nRmold=13843 

Ina lysis Prepared by the Department of Natural Resources ' ltatute Interpreted: Section 285.11 (1) and (6), Slats. The State Implementation Plan leveloped under s. 285.11 (6), Slats., is revised. 

ltatutory authority: Sections 227.11 (2) (a), 285.11 (1), (16) and (17) and 285.60 11) (b) ; ' :Xplanati9n of agency authority: Section 227.11 (2) (a), Slats., gives state agencies 1eneral rule-making authority. Section 285.11 (1), Slats., gives the Department the 1uthority to promulgate rules Implementing and consistentw~h. ch. 285, Slals. Section 

85 11 (6), Stals., requires the Department to develop a plan for the prevention, 1batement, and control of air pollution. The plan must conform with the Clean Air \ct and is necessary for new source review implementation. Section 285.11 (16) eqUires the DeP.artment to promulgate rules that may lim~ the classification of a major . ource to specified air contaminants. Section 285.11 (17) requires the Department 

o promulgate rules, consistent with the federal Clean Air Act, that modify the term nodification' as~ relates to specific categories of stationary sources. Sect1on 285.60 11) (b), Slats., establishes that the Department may not require a permit for an indirect 

.ource under ch. 285, Stals 

lelated statute or rule: There are no related statutes that are not identified above. 'lain language analysis: The objective of this rule package is to revise language 1 chs. NR 400, 405, and 408 to mainlain consistency with federal requiremenls and lefinitions. Additionally, sections of chs. NR 400 and 410 need to be repealed due to ne repeal of ch. NR 411. n May 2006, the Department requested approval by the U.S. Environmental Protection 1gency (USEPA) of rules promulgated by Wisconsin to incorporate federal New iource Review Reform requirements as a revision to the Slate Implementation Plan SIP). The USEPA approved the SIP revisions, but subsequently requested changes 

o language 1n chs. NR 405 and 408. The changes pertain to the fuel use prohibition 1at is part of the definition of "major modification". 

iection NR 405.02 (25i) defines "Regulated NSR air conlaminanr and specifically lentifies volatile organic compounds as a precursor for ozone. US EPA has requested 1clusion of nitrogen oxides (NO ) in the definition for clarification purposes. Similarly jSEPA requires, through its 2Q(f8 New Source Review Rule, explicit identification of 10, and sulfur dioxide (SO~) as precursors to parti~ulate matter with a. diameter of 2.5 :1crometers or less (PM2_,1 w1thm the definition of 'Regulated NSR a1r contaminant". he Department has also amended the definition of "Regulated NSR air contaminant" 1 s. NR 408.02 (29m) to specifically address precursor pollutanls in nonattainment treas. Addrtionally, the Department will amend the definitions of PM,_ and particulate 

-1atter w~h a diameter of 10 micrometers or less (PM,) to address a uS EPA-identified liP deficiency. The definitions as currently written do not specifically mention <>ndensables as required in the federal 2008 New Source Review Rule. ln April27, 2011, the Joint Committee for Review of Administrative Rules (JCRAR) tdopted a motion under s. 227.26 (2) (d), Wis. Slats., suspending ch. NR 411. >ubsequent passage of legislation introduced by JCRAR in support of the suspension 

see 2011 Wisconsin Act 121), resulted in the repeal of cti. NR 411 . The primary 

•Urpose of ch. NR 411 had been to control carbon monoxide emissions from indirect ources through conditions established in construction and operation permits. "herefore the Department proposes to repeal rules whose only purpose is in support 

•f ch. NR 411 . Rules proposed for repeal include ss. NR 400.02 (101) and (106), 

,nd 410.03 (3). Section NR 400.02 (101) and (106) define 'modified indirect source' .nd 'new indirect source' respectively. Section NR 410.03 (3) establishes fees for the pplication and issuance of permits to construct or modify an indirect source. iummary of, and comparison with, existing or proposed federal statutes and agulations: In a letter dated June 17, 2009, the USEPA notified the Department that 

the definition of the term "major modification" ins. NR 405.02 wes inadequate because rt failed to Identify permrts issued under federal authority. Wisconsin's Prevention of Significant Deterioration (PSD) pr"llram was approved into~ SIP on June 28, 1999. Before that, PSD construction perm~s were issued under federal authority. When s. NR 405.02 (21) (b) (5) was written, the references to federal authority were inadvertently omitted. Because the federal crtations were omitted from the rule, USEPA identified that in a very limited situation, the current state defin~ion would allow a source to make a change to use a diff<in!nt fuel or raw material wrthout undergoing major new source permit review for the change, even though the chan11e could be prohibited under a federal permrt. The Department will amend this definrtion to ensure that rt is consistent with US EPA rule and policy and recognizes all federally-issued perm~. The Department is likewise amending the defin~ion of "major modification" at s. NR 408.02 (20) for nonattainment area new source review. 

The alternative to this rule action is to keep the rules as they are, which USEPA has already identified as an 1ncons1stency With federal rules. However, in a Federal Register filed June 15, 2012, USEPAdisapproved narrow portions of the SIP f."'rlalnlng to permrt requirements in chs. NR 405 and 408 that would be addressed w~h this rulemaking. In the Federal Reg1ster, USEPA stated that t~ey are ~nder obligation to promulgate 

a Federal Implementation Plan (FIP) addressing the disapproved portions of the SIP within 2 years. The Federal Register slates that the FIP will not be promulgated ff Department rectifies the deficiencies within the 2 year timeframe. The clarifications of N 0 as a precursor to ozone and NO and SO as precursors to PM , as well as the clanfication of accounting for PMu a~d PM, ciJndensables as a por/ioh of PM2 , and PM, emissions are not policy changes nor &o they change how Department currentiy implements chs. NR 405 and 408 requlremenls. On June 15 2012, USEPA disapproved a narrow portion of Wisconsin's SIP for the 1997 ozone National Ambient Air Quality Standard pertaining to air construction perm~ng. This was done because NO, was not explicitiy Identified as a precursor to ozone as part of PSD permit program requirements. The final disapproval triggered a requirement that USEPA promulgate a FIP addressing the deficiency no later than 2 years from the date of disapproval. USEPA published a proposed disapproval of Wisconsin's submittal on December 18, 2012, because the submittal did not meet the 2008 PM SIP requiremenls. Specifically, the revisions submitted did not explicitly define t~~ precursors of PM,_., nor did they conlain the prescribed language to ensure that gases that condense to rorm particulate matter (PM), known as condensables are regulated 

as part of PM'·! and PM of l~ss tha_n 10 micrometer (PM,,) emissions. Final disapproval to port1ons or he SIP relating to 1den!lfymg precursors of PM will also resu~ in the promulgation of a FIP unless the deficiencies are addressed. ' ·' Not repealing sections of chs. NR 400 and 410 in response to the repeal of ch. NR 411 by the legislature would potenllally create confusion and perpetuate an inconsistency with Department rules. 

Comparison with similar rules In adjacent etatea (Illinois, Iowa, Michigan and Minnesota): 

Illinois and Minnesola are delegated slates, so they are directty implementing the federal program and not implementing their programs through a State Implementation Plan (SIP), as Wisconsin does. Iowa and Michigan, similar to Wisconsin, are SIP approved states, so they are also implementing a federal program, but through their own state rules and regulations. It is the goal of SIP-approved states to implement federal programs in accordance with the regulations set out in federal code. The majority of this rule package addresses changes necessary to comply with federal regulations. Those changes not dictated by federal regulations are associated wHh the repeal of fees related to the indirect source program which no longer exisls in Wisconsm, thereby addressing a current internal inconsistency. Summary of factual data and analytical methodologies used and how any relatad findings support the regulatory approach chosen: 

RECEIVED 

OCT .., 8 2013 

IR MANAGEMENT 

The Department did not use any factual data or analytical methodologies In developing the proposed rules. The chaJes J:ro~osed In this rule package are based on 

~~~i~~~~~s f~~;., ru~~:;dentifi by e SEPA and a comparison of the currents late t 

Analysis and supporting document.. used to detarmlne lhs effect on small business or In preparaUor\ of an economic Impact analysis: The proposed changes to the new source permH review programs only affect major sources which typically do not include small busi!'esses. The proposed changes related to the former 1nd~rect source perm~ program Will not have any effect on small businesses since the indirect permit program has been repealed and lhe proposed changes are of a cleanup nature only. The Department did not use existing documenlation In determining the effect on small business or in preparation of the economic impact analysis. Effect on small business (Initial regulatory nexlblll~ analysis): The Department 

~~~~~ ~~~i~~~~~~-that the proposed rule revisions will ave an economic impact on 

The Small Business Regulatory Coordinator may be conlacted at SmaiiBusjness@ dnr.state.wi.us, or by calling (608) 266-1959 . 

Agency contact person: Gail Good; P.O. Box 7921, Madison, WI 53707-7921· Telephone number (608) 266-1058; email address: gall.good13@wiscofllin.gov ' Envoronmental Analysis 

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives. Fiscal Estimate and Economic Impact Analysis Summary The Department believes the proposed rules will have no fiscal effect. The changes being proposed e~her amend rules to match current practice and mainlain consistency wHh federal requiremenls and definrtions, or eliminate defin~ions and fees for a program no longer used in Wisconsin. 

The Department solicited Information and advice on the economic impacts of the proposed rules from those who potentially could be affected or who might likely be interested. Most responders to the sohc~ation indicated that they had no input because they believe the proposed rules will have no economic imr.act on them. One responder felt there was economic benefit from the proposed rues and asked the Department to quantify that benefit. Additionally, the commenter felt that the proposed rules addressed broader policy issues whose economic benefits should be analyzed. The Department does not believe the proposed rules provide economic benefit. The economic benefit from the repeal of ch. NR 411 occurred when the chapter was repealed through legislative action and is not due to the clean-up of related rules proposed. Testimony, including an estimate of the costs associated with the indirect 

source permit program, was given at the time of the legislative action. The portions of the rule package associated w1th the major new source ravlew program found in chs. NR 405 and 408 are amendmenls to ensure that the rules align w~h current Department practice as well as USEPA policy and do not represent changes in implementation. The economic impact analysis speaks to the economic impacts of the proposed rules, not the underlying slatutes that give the Department authority for rulemaking.There were no revisions to the Economic Impact Analysis. 

Dated at Madison, Wisconsin: September 27, 2013 

STATE OF WISCONSIN 

DEPARTMENT OF NATURAL RESOURCES 

By /s/ Cathy Stepp, Secrelary 

My Commission expires July 31st, 2017 
WISCONSIN DEPARTMENT OF NATURAL RESOURCES 

BUREAU OF AIR MANAGEMENT 

STATE IMPLEMENTATION PLAN REVISION 

CERTIFICATION 

Pursuant to the requirements of 40 CFR s. 51.1 02(f), I hereby certify that the Wisconsin 

Department of Natural Resources held the hearing described below; that the hearing was 

held in accordance with the public notice (copy attached), as required by 40 CFR s. 

51.1 02( d); and that I was the presiding officer at the hearing. 

Subject: 

Revisions to SIP to ensure consistency with federal major source permit review 

requirements 

Hearing held: 

Tuesday November 5, 2013 in Madison, Wisconsin. 

Written comments were received until November 8, 20 l3. 

~~ ~. :i,£)~'Qf1 Kendra L. Fisher 

BUREAU OF LEGAL SERVICES 
Three possible effective dates for AM-21-12 based on legislative review process assumptions

Step# Step Description Option 1 Option 2 Option 3

27 Report and notice from step 18A referred to standing 

committees in each house of the legislature.

Feb 10, 14 Feb 10, 14 Feb 10, 14

28 Standing committees’ review period expired. Mar 12, 14 Apr 11, 14 Apr 11, 14

29 Board order referred to the Joint Committee for Review of 

Administrative Rules (JCRAR).

Mar 24, 14 Apr 21, 14 Apr 21,14

30 JCRAR review period expired. Apr 25, 14 May 21, 14 Jun 20, 14

∞ RULE PROMULGATION ∞

31 Board order signed by the secretary and filed with LRB. May 5, 14 Jun 2, 14 Jun 30, 14

32 Rule proof received, reviewed and returned. Accounted for in dates for step 33

33 Rule published by LRB and becomes effective. Jul 1, 14 Aug 1, 14 Sep 3, 14

Option 1: Assumes standing committees in the senate and assembly and JCRAR do not publish or 

post notice that the committee will hold a meeting or hearing, or take other actions that would delay

promulgation.

Option 2: Assumes either standing committee in the Senate or Assembly does publish or post notice 

that the committee will hold a meeting or hearing, but does not take any action subsequent to the 

meeting or hearing that would delay promulgation. Assumes JCRAR does not publish or post notice that 

it will hold a meeting or hearing.

Option 3: Same as Option 2, but assumes that JCRAR does publish or post notice that the 

committee will hold a meeting or hearing, but does not take any action subsequent to the meeting or 

hearing that would delay promulgation.