/ State of Wisconsin

DEPARTMENT OF NATURAL RESOURCES

101 S. Webster Street

Box 7921

Madison WI 63707-7921

May 12,2011

Ms. Susan Hedman

USEPA-Region V

77 West Jackson Boulevard

Chicago IL 60604

Scott Walker, Governor

Cathy Stepp, Secretary

Telephone 608-266-2621 ~~~1.J::::~-..........-.

F WISCONSIN

AX 608-267-3679 DePT. OF NATURAL RESOURCES

TTY Access via relay - 711

Subject: Federal Re-designation of Forest County Potawatomi Reservation Community as a nonFederal Class I area for Prevention of Significant Deterioration of air quality

Dear Ms. Hedman:

Region V, WDNR, and the Forest County Potawatomi Community (FCPC) have worked together over the last 12

years regarding the re-designation of certain parcels of FCPC land from a Class 2 prevention of prevention of

significant deterioration (PSD) air quality designation to a non-Federal PSD Class I area. This SIP submittal

contains a rule, AM-12-10, which incorporates the federal re-designation of certain parcels ofthe FCPC

Reservation as a non-Federal Class I area for PSD into ch. NR 405, Wis. Adm. Code.

We ask Region V to process this SIP submittal as expeditiously as possible. If you should have any questions

regarding this submittal, please call Andrew Stewart of my staff at 608 266-6876 or email him at

Andrew.stewart@wisconsin.gov

Andrew Stewart - AM

Ralph Patterson - AMI7

Pat Stevens - AD/8 (w/o enclosures)

Cheryl Newton - USEPA Region 5 (A -18J), 77 West Jackson Boulevard, Chicago, IL 60604-3507 (w/o

enclosures)

Enclosures:

• SIP Checklist

• SIP Certification Form

• Public Hearing Notice

• Class I Public Hearing notiCe

• Rule-AM-12-10

• Background Memo

• DNR Green Sheet showing DNR Board's adoption of AM-12-10

dnr.wi.gov

wisconsin.gov Naturally WISCONSIN

~'PRINTEO ~" ". ON RECYCLED , , PAPER
EPA Region V 

Wisconsin SIP Submittal 

Completeness Review

Submittal Letter 

1. Signed by Governor’s Designee (John Melby, Jr.)? Yes _x__ No ___ 

2. Date of Submittal _______May 20, 2011_______________________________ 

3. WDNR Person in charge of SIP submittal. 

Name __Ralph Patterson__ Telephone __608-267-7546__ 

 FAX Number ___608-267-0560______ 

E-MAIL Address______________________________ 

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

Name __Steve Dunn___ Telephone __608-267-0566__ 

 FAX Number ____608-267-0560____ 

E-MAIL Address___steven.dunn@wisconsin.gov 

Incorporation Into Wisconsin Administrative Code

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

SIP package? 

 Yes _X_ 

 No__ if No explain. 

6. The effective date of the regulation is or was __December 1, 2010___ 

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

Attorney General 

 Yes_______ 

 No_______ 

 Not applicable __X_____ 

 For No and Not applicable explain answer. 

 No test methods or rule are included in the rule revision. 

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). 

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__X__ 

 No____ 

 Additional Explanation (if necessary). 

Technical Issues 

14. Name the all the regulated pollutants affected by the revision? ___not applicable________ 

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

 Yes____ 

 No__X___ 

 Additional Explanation (if necessary) Not applicable 

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

 Yes__X___ 

 No_____ 

 Additional Explanation (if necessary) 
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_X__ 

 No____ 

 Additional explanation (if necessary) 

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__X__ 

 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__X__ 

 Additional explanation (if necessary) Not applicable 

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

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

 Yes___ 

 No__X__ 

 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_X__ 

 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: Revisions to Wisconsin’s prevention of significant deterioration new 

source review SIP through the amending/creation of certain sections of NR 400 and 405, 

Wis. Adm. Code.

Applicability 

USEPA Question USEPA Requirement State Response 

What sources are being regulated? Clear discussion Major sources and major 

modifications at major sources 

within a radius of 22.25 miles of 

the geographic center of the 

Forest County Potawatomi 

Community (FCPC) Class I area. 

Specifically, this rule incorporates 

the federal designation of the 

FCPC as a non-Federal Class I 

area for the prevention of 

significant deterioration of air 

quality, and include portions of a 

Final Agreement reached between 

the state and the FCPC 

concerning the Class I area.

What are criteria for exemption? Clear discussion Not applicable 

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 

Is bubbling or averaging of any 

type allowed? If yes, state 

Explicit description of how averaging, bubbling, 

or equivalency is to be determined. VOC 

Not applicable 
6

criteria. Could a USEPA 

inspector independently determine 

if the criteria were met?? Does 

USEPA have to approve each 

case? 

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. 

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. 

December 1, 2010 

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. Section 227.11(2)(a), Stats., gives 

state agencies general rulemaking 

authority. Section 285.11(1), Stats., 

gives the Department authority to 

promulgate rules consistent with ch. 

285, Stats. Section 285.11(6), Stats., 

requires the Department to develop a 
7

plan for abatement of air pollution in 

the State. The permitting program, in 

general, and these regulations 

specifically, is part of that plan. 

These rules are based on federal rules a

well as a 1999 Final Agreement reached

between the State and the Forest County

Potawatomi Community (FCPC). 

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. 

None allowed 

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 
WISCONSIN DEPARTMENT OF NATURAL RESOURCES

BUREAU OF AIR MANAGEMENT

STATE IMPLEMENTATION PLAN REVISION

CERTIFICAnON

Pursuant to the requirements of 40 CFR s. 51.102(1), I hereby certify that the Wisconsin

Department ofNatural 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 relating to air pollution permit requirements for Class I areas, and

affecting small businesses.

Hearings held:

Monday, June 7th, 2010 in Madison, Wisconsin; and, Wednesday June 9th in Wausau.

Written comments were received until June 14,2010.

~()Jd2t Michael D. Scott

BUREAU OF LEGAL SERVICES

Notary P c, State ofW onsin

My commission is permanent.

Subscribed and sworn to before me

This """" day of May, 2011
.yOI\

BEFORE THE

DEPARTMENT OF NATURAL RESOURCES

NOTICE OF PUBLIC HEARING

Natural Resources Board Order AM-12-1 0

NOTICE IS HEREBY GIVEN THAT pursuant to ss. 227.16 and 227.17, Stats, the Department of Natural

Resources, hereinafter the Department, will hold a pUblic hearing on creating rules affecting chs. NR 400,

405, and 406, relating to permit requirements for Class I areas, and affecting small business.

Hearing Information

Date and Time

June 7,2010, Monday

at 2:00 PM

June 9, 2010, Wednesday

at 1:30 PM

Location

Natural Resources State Office BUilding

Room GOg

101 S. Webster Street

Madison, WI

Northcentral Technical College

Main Building, Room E101

1000 West Campus Drive

Wausau, WI

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

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

writing at the Department of Natural Resources, Bureau of Air Management (AMI7), 101 S Webster,

Madison, WI 53707; by E-mail to Robert.EckdaJe@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 Fiscal Estimate

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and

downloaded from the Administrative Rules System Web site which can be accessed through the link

provided on the Proposed Air Pollution Control Rules Calendar at

http://www.dnr.state.wi.us/air/ruleslcalendar.htm . If you do not have Internet access, a printed copy of the

proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by

contacting Robert Eckdale, Department of Natural Resources, Bureau ofAir Management (AMI7), 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 June 14, 2010. Written comments may be

submitted by U.S. mail, fax, E-mail, or through the Intemet 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:

Steve Dunn

Department of Natural Resources

Bureau of Air Management (AMI7)

101 5 Webster St, Madison, WI 53703

Phone:

Fax:

E-mail:

Internet:

608 267-0566

608 267-0560

Steven Dunn@wisconsin.gov

Use the Administrative Rules System Web site accessible through the link provided on

the Proposed Air Pollution Control Rules Calendar at

http·lIdnr.wi.gov/air/rules/calendar.htm

Analysis Prepared by the Department of Natural Resources

Statute interPreted:

The State Implementation Plan developed UDder s. 285.11 (6), Stats., is revised.

Statutory authority:
ss. 227.11 (2)(a) and 285.11 (1) and (6) Stats.

Explanation ofagency authority:

Section 227.11 (2)(a), Stats., gives state agencies general rulemaking authority. Section 285.11 (1), Stats.,

gives the Department authority to promulgate rules consistent with ch. 285, Stats. Section 285.11 (6),

Stats., requires the Department to develop a plan for abatement of air pollution in the State. The

permitting program, in general, and these regulations specifically, is part of that plan.

These rules are based on federal rules as well as a 1999 Final Agreement reached between the State

and the Forest County Potawatomi Community (FCPC).

Related litatute orrule:

The FCPC Class I area was established as part of a Federal Implementation Plan approved by USEPA in

an April 29, 2008 Federal Register Notice.

Plain language analysis:

This rule is being proposed to amend portions of Department rules to incorporate the federal redesignation of certain parcels of the Forest County Potawatomi Community Reservation as a non-Federal

Class I area for the prevention of significant deterioration (PSD) of air quality, and to include portions of a

1999 Final Agreement reached between the State and the Forest County Potawatomi Community

concerning the Class I area.

A Class I area is defined in ch. NR 405, Wis. Adm. Code. In general, the PSD program is designed to

preserve air quality in Class I areas such as national parks and other areas meeting National Ambient Air

Quality Standards. Class I areas are subject to lower allowable increases in ambient concentrations of

particulate matter, sulfur diOXide, and nitrogen dioxide.

Summary of, and comparison with, existing orproposed federal regulation:

In an April 29, 2008, Federal Register Notice, the USEPA established the FCPC Class I area. The

Department and the FCPC have agreed to provisions impacting the FCPC Class I area that USEPA

stated, in the April 29, 2008, notice, need to be promUlgated as part of the State's Implementation Plan

for controlling air pollution in order to be effective for federal purposes.

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

There are no non-federal Class I areas or non-federal Class I rules in any of these states.

Summary offactual data and analytical methodologies used and how any related findings support

the regulatory approach chosen:

The proposed rule is based on the federal re-designation of the FCPC Reservation lands to non-federal

Class I, and the Final Agreement.

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

preparation of an economic impact report:

An analysis of the effect of the proposed rules on small business was not performed since the proposed

rule only impacts major sources of air pollution in the State and conforms to federal requirements. Major

sources of air pollution are not typically small businesses.

Effect on small business:

These rules should not have a significant economic impact on small business because major air pollution

sources do not generally meet the definition of a small business.

The Small Business Regulatory Coordinator may be contacted at SmaIiBusiness@dnr.state.wLus , or by

calling (608) 266-1959.

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 Summary

The proposed rules amend the existing air permitting rules to include a non-federal Classs air quality area. The

Department already processes air permits which may impact existing Class I areas and expects no significant change

in permit workload as a result of this rule.

Agency contact person:

Steven.Dunn

P.O. Box 7921

Madison, WI 53707

Phone: (608) 267-0566

Fax: (608) 267-0560

Email: Steven.Dunn@wisconsin.gov

Dated at Madison, Wisconsin _,J...B.",IPLJf_(..LJ--=2=-'=-;7-'....:1~a)c.:.O _

STATE OF WISCONSIN

DEPARTMENT OF NATURAL RESOURCES

By /rk£///!, S'd'

Matthew J. Frank, Secretary
Capital Newspapers Proof of Publication Affidavit

Ad #: 1581174 Price: $290.68 Ad ID: AM-71 0

Retain this portion for your records.

Please do notremitpayment until you receive your advertising invoice.

Mail to:

/r,.,..-/L-to

WI DEPT NATURAL R

Sharon Reeve

Attn: Sharon Reeve

PO Box 7921

Madison. WI 53707-7921 .~--~•..•. ~_._.

STATE OF WISCONSIN

RECEIVED

MAY 7 2010

AIR MANAGEMENT

Arlene Staff

being duly sworn, doth depose and say that

he (she) is an authorized representative of

capital Newspapers, publishers of

Wisconsin State Journal

a newspaper, at Madison, the seat of govemment of said State,

and that an advertisement of which the annexed is a true

copy, taken from said paper, was pUblished therein on

May 5th, 2010

•
Subscribed and swom to before me on

unty,

My Ccmmisslon expires May 24th, 2013

-.

"
ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD 

CREATING RULES 

The Wisconsin Natural Resources Board adopts an order to create NR 400.02 (66m), 405.19 and 

406.08(4) relating to permit requirements for Class I areas, and affecting small business. 

AM-12-10 

Analysis Prepared by the Department of Natural Resources

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

revised. 

2. Statutory authority: ss. 227.11(2)(a) and 285.11(1) and (6) Stats. 

3. Explanation of agency authority:

Section 227.11(2)(a), Stats., gives state agencies general rulemaking authority. Section 

285.11(1), Stats., gives the Department authority to promulgate rules consistent with ch. 285, 

Stats. Section 285.11(6), Stats., requires the Department to develop a plan for abatement of air 

pollution in the State. The permitting program, in general, and these regulations specifically, is 

part of that plan. 

These rules are based on federal rules as well as a 1999 Final Agreement reached between the 

State and the Forest County Potawatomi Community (FCPC). 

4. Related statute or rule:

The FCPC Class I area was established as part of a Federal Implementation Plan approved by 

USEPA in an April 29, 2008 Federal Register Notice. 

5. Plain language analysis: This rule is being proposed to amend portions of Department rules 

to incorporate the federal re-designation of certain parcels of the Forest County Potawatomi 

Community Reservation as a non-Federal Class I area for the prevention of significant 

deterioration (PSD) of air quality, and to include portions of a 1999 Final Agreement reached 

between the State and the Forest County Potawatomi Community concerning the Class I area. 

A Class I area is defined in ch. NR 405, Wis. Adm. Code. In general, the PSD program is 

designed to preserve air quality in Class I areas such as national parks and other areas meeting 

National Ambient Air Quality Standards. Class I areas are subject to lower allowable increases in 

ambient concentrations of particulate matter, sulfur dioxide, and nitrogen dioxide. 

6. Summary of, and comparison with, existing or proposed federal regulation: In an April 

29, 2008, Federal Register Notice, the United State Environmental Protection Agency (USEPA) 

established the FCPC Class I area. The Department and the FCPC have agreed to provisions 

impacting the FCPC Class I area that USEPA stated, in the April 29, 2008, notice, need to be 

promulgated as part of the State’s Implementation Plan for controlling air pollution in order to be 

effective for federal purposes. 

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

Minnesota): There are no non-federal Class I areas or non-federal Class I rules in any of these 

states. 

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

findings support the regulatory approach chosen: The proposed rule is based on the federal 

re-designation of the FCPC Reservation lands to non-federal Class I, and the Final Agreement. 

1
9. Analysis and supporting documents used to determine the effect on small business or 

in preparation of an economic impact report: An analysis of the effect of the proposed rules 

on small business was not performed since the proposed rule only impacts major sources of air 

pollution in the State and conforms to federal requirements. Major sources of air pollution are not 

typically small businesses. 

10. Effect on small business: These rules should not have a significant economic impact on 

small business because major air pollution sources do not generally meet the definition of a small 

business. 

11. Agency contact person: Steven Dunn, P.O. Box 7921, Madison, WI 53707, Telephone 

number: (608) 267-0566; e-mail address: Steven.Dunn@wisconsin.gov 

SECTION 1. NR 400.02 (66m) is created to read: 

NR 400.02 (66m) “Forest County Potawatomi Community Class I area” or “FCPC Class 

I area” means those land parcels of the Forest County Potawatomi Reservation that are designated 

as a non-federal Class I area by EPA under 40 CFR. 52.2581. The FCPC Class I area has a 

geographic center, as determined by the department, at latitude 45.49978°N, longitude 

88.64377°W. 

SECTION 2. NR 405.19 is created to read: 

NR 405.19 Forest County Potawatomi Class I area. (1) For any new major source or 

major modification of an existing source, the Forest County Potawatomi Community shall have 

the opportunity to present to the department, within no more than 75 days of receipt of a complete 

permit application by the department, a demonstration that the emissions from the proposed new 

major source or major modification would have an adverse impact on the established air quality 

related values of the FCPC Class I area. 

(2) New major sources or major modifications of existing sources wholly or partially 

locating or located within a radius of 22.25 miles from the geographic center of the FCPC Class I 

area, as identified in s. NR 400.02 (66m), are subject to an increment analysis and limited to the 

maximum allowable increase levels of a Class I area.

(3) New major sources or major modifications of existing sources locating or located 

2
wholly outside the area defined in sub. (2) are subject to an increment analysis and maximum 

allowable increase levels of a Class II area. 

Note: The relationship between the State of Wisconsin and the Forest County Potawatomi 

Community with regard to the FCPC Class I area is established in a 1999 Class I Final Agreement. The 

geographic center of the FCPC Class I area was determined by finding the center of a rectangle placed 

around the outer most portions of the Class I area. The 22.25-mile radius was determined by adding 10 

miles to the distance of the outermost portion of the FCPC Class I area from the geographic center of the 

FCPC Class I area. A map developed by the Department and the Forest County Potawatomi Community 

shows the approximate 22.25-mile radius for the FCPC Class I area. The Final Agreement, map, and 

information on established air quality related values for the Class I area are available from the Department 

upon request, or may be found on the Department’s web site. 

SECTION 3. NR 406.08 (4) is created to read: 

NR 406.08 (4) (a) The Forest County Potawatomi Community shall have the opportunity 

to review best available control technology (BACT) or maximum achievable control technology 

(MACT) determinations made by the department for any new or modified source that is either of 

the following: 

1. Wholly or partially locating or located within a radius of 22.25 miles from the 

geographic center of the FCPC Class I area, as identified in s. NR 400.02 (66m).

2. Wholly or partially locating or located within 62 miles of the FCPC Class I area, and 

has a modeled impact exceeding 1 microgram per cubic meter averaged over any 24-hour period 

for mercury or for any regulated pollutant that has an ambient air quality standard in s. NR 

404.04. 

(b) Disagreements between the department and the Forest County Potawatomi 

Community regarding BACT or MACT determinations are subject to dispute resolution but the 

department shall act on a permit application according to time period requirements under ss. 

3
285.61 and 285.62, Stats. 

Note: The geographic center of the FCPC Class I area, as identified in s. NR 400.02 (66m), was 

determined by finding the center of a rectangle placed around the outer most portions of the Class I area. 

The 22.25-mile radius was determined by adding 10 miles to the distance of the outermost portion of the 

FCPC Class I area from the geographic center of the FCPC Class I area. 

 The Department has determined that any source wholly located outside of a circle with a radius of 

74.25 miles from the geographic center of the FCPC Class I area is not within 62 miles of the FCPC Class I 

area. The 74.25-mile radius was determined by adding 62 miles to the distance of the outermost portion of 

the FCPC Class I area from the geographic center of the FCPC Class I area. It is the Department’s intent 

that this circle be used as a screening tool for determining applicability of this subsection, and evidence that 

a source is wholly outside of this circle will be accepted as proof that the source is not within 62 miles of 

the FCPC Class I area. 

The relationship between the State of Wisconsin and the Forest County Potawatomi Community 

with regard to the FCPC Class I area is established in a 1999 Class I Final Agreement. Dispute resolution 

follows a process agreed to by the Department and the Forest County Potawatomi Community pursuant to 

the Final Agreement. 

The Final Agreement and maps showing the approximate 22.25-mile and 74.25-mile radii are 

available from the Department upon request, or may be found on the Department’s web site.

SECTION 4. 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. 

4
5

SECTION 5. BOARD ADOPTION. This rule was approved and adopted by the State of 

Wisconsin Natural Resources Board on August 11, 2010. 

Dated at Madison, Wisconsin October 5, 2010. 

STATE OF WISCONSIN 

DEPARTMENT OF NATURAL RESOURCES 

By__________/S/___________________ 

 Matthew J. Frank, Secretary 

(SEAL) 
State of Wisconsin CORRESPONDENCE/MEMORANDUM

DATE: July 12, 2010 FILE REF: 4533 

TO: Natural Resources Board Members 

FROM: Matt Frank, Secretary 

SUBJECT: Background Memo for adoption of Order AM-12-10, proposed rules affecting NR 405 

and 406 pertaining to permit requirements relating to non-federal Class I areas.

Why is this rule being proposed?

This rule is being proposed to incorporate the federal re-designation of certain parcels of the Forest 

County Potawatomi Community (FCPC) Reservation as a non-Federal Class I area for the prevention of 

significant deterioration (PSD) of air quality, and to include portions of a 1999 Final Agreement reached 

between the state and the Forest County Potawatomi Community concerning the Class I area. 

A Class I area is defined in ch. NR 405, Wis. Adm. Code. In general, the PSD program is designed to 

preserve air quality in Class I areas such as national parks and other areas meeting the National Ambient 

Air Quality Standards. Class I areas are subject to lower allowable increases in ambient concentrations of 

particulate matter, sulfur dioxide, and nitrogen dioxide. 

Summary of the Rule

The rule will: 

• Establish the FCPC Class I area as a non-Federal Class I area 

• Identify the reservation land parcels of the FCPC Class I area; and 

• Identify the requirements for air permit applicants locating within the geographic areas covered in the 

Final Agreement. 

How does this proposal affect existing policy?

The Department is required to keep the air permitting program consistent with federal requirements. This 

proposed rule change updates the permitting program rules to include the FCPC Class I area that has been 

approved by US EPA. 

Additionally, the rule proposal will aid in the implementation of the Final Agreement reached between the 

State and the FCPC. In general, this Agreement reduces the number of sources that would have otherwise 

been required to do additional air quality analyses for the FCPC Class I area in comparison to a Federal 

Class I area. Thus, these proposed rules will implement existing policy reflected in the Final Agreement. 

Hearing Synopsis

Public hearings on the proposed rule were held on June 7, 2010 in Madison and June 9, 2010 in Wausau. 

There were five attendees at the Madison hearing and four attendees at the hearing in Wausau. Comments 

on the rule were submitted by the Forest County Potawatomi Community (FCPC) at the Madison hearing. 
2

One comment generally supporting rule and clean air was submitted at the Wausau hearing. The 

comments received from the FCPC were in support of the proposed rule. 

Written comments on the proposed rule were also received from the Wisconsin Paper Council (WPC) and 

Wisconsin Manufacturers and Commerce (WMC). These comments concerned the dimensions of the 

“22.25 mile” and “74.25 mile” affected facility circles included in the proposed rule. Both WPC and 

WMC stated that each of the circles encompasses too large of an area and are not consistent with the “10 

mile” radius and “62-mile” distance contained in the 1999 Final Agreement between the state and the 

FCPC. In response to these comments, a change has been made to the final rule to clarify that no facility 

located further than 62 miles from any portion of the FCPC Class I area will be subject to the 

requirements of the final rule. The Department is not proposing to change the dimensions of the “22.25 

mile” circle because a drawing of an essentially identical circle is included in the Final Agreement. 

Therefore, the Department believes that the “22.25” mile circle included in the final rule is consistent with 

the terms of the Final Agreement. 

Additionally, WPC commented that implementation of the Final Agreement could lead to the Department 

exceeding permit issuance timelines in State Statutes. No portion of the proposed rule allows the 

Department to exceed the permit issuance timelines contained in s. 285.61, WI Stats. (i.e. WI Act 118). 

Therefore, all statutory permit issuance deadlines will be met for permits for facilities affected by this rule 

and for facilities not affected by this rule. 

Comments submitted by the Legislative Council Rules Clearinghouse were of a non-substantive nature 

with the changes specifically suggested by the Clearinghouse included in the proposed rule. 

Information on Environmental Analysis 

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

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

cause significant environmental effects, normally does not affect energy usage and normally does not 

involve unresolved conflicts in the use of available resources. 

Final Regulatory Flexibility Analysis 

These proposed rules apply only to larger sources of air pollution which are not, in general, small 

businesses. The Department believes it is unlikely any small business would be impacted by these 

proposed rules.
Form 1100-001 NATURAL RESOURCES BOARD AGENDA ITEM Item No. ___3.A.10_______ 

(R 9/07) 

SUBJECT:

Request adoption of Board Order AM-12-10, proposed rules affecting chs. NR 400, 405, and 406 pertaining to permit 

requirements relating to non-federal Class I areas. 

FOR: AUGUST 2010 BOARD MEETING

TO BE PRESENTED BY: Andy Stewart, Chief, Permits and Stationary Source Modeling Section 

SUMMARY: 

The proposed rules incorporate the federal designation of the Forest County Potawatomi Community (FCPC) as a nonFederal Class I area for the prevention of significant deterioration (PSD) of air quality, and include portions of a Final 

Agreement reached between the state and the Forest County Potawatomi Community concerning the Class I area. 

A Class I area is defined in ch. NR 405, Wis. Adm. Code. In general, the PSD program is designed to preserve air quality 

in Class I areas such as national parks and other areas meeting the National Ambient Air Quality Standards. Class I 

areas are subject to lower allowable increases in ambient concentrations of particulate matter, sulfur dioxide, and nitrogen 

dioxide. 

The FCPC non-Federal Class I area was established by US EPA at the request of the FCPC in 2008 (the original FCPC 

request for this desgination was filed in 1995). In 1999, the state signed a Final Agreement with the FCPC that resolved 

issues pertaining to implementation of a FCPC Class I area and which details what the Department, FCPC, and 

potentially affected permit applicants need to do to evaluate the impact of new or modified sources of air pollution that 

may potentially impact the FCPC Class I area. This Final Agreement took effect after federal establishment of the FCPC 

Class I area. 

There is not expected to be any significant controversy over adopting these rules. 

RECOMMENDATION: That the Board adopt Order AM-12-10.

 

LIST OF ATTACHED MATERIALS:

No Fiscal Estimate Required Yes Attached 

No Environmental Assessment or Impact Statement Required Yes Attached 

No Background Memo Yes Attached 

APPROVED: 

________/S/________________________________________________________________ _____7/09/2010________________ 

Bureau Director, John H. Melby, Jr. Date 

________/S/________________________________________________________________ _____7/12/2010________________ 

Administrator, Al Shea Date 

________/S/________________________________________________________________ _____7/22/2010________________ 

Secretary, Matthew J. Frank Date 

cc: Laurie Ross - AD/8 Linda Haddix - LS/8 

 Mike Scott - LS/8 R. Eckdale - AM/7