Chapter NR 405

NR 405.01   Applicability; purpose.

NR 405.02   Definitions.

NR 405.025   Methods for calculation of increases in actual emissions.

NR 405.03   Restrictions on area classifications.

NR 405.04   Exclusions from increment consumption.

NR 405.05   Redesignation.

NR 405.06   Stack heights.

NR 405.07   Review of major stationary sources and major modifications — source applicability and exemptions.

NR 405.08   Control technology review.

NR 405.09   Source impact analysis.

NR 405.10   Air quality models.

NR 405.11   Air quality analysis.

NR 405.12   Source information.

NR 405.13   Additional impact analyses.

NR 405.14   Sources impacting federal Class I areas — additional requirements.

NR 405.15   Public participation.

NR 405.16   Source obligation.

NR 405.17   Innovative control technology.

NR 405.18   Plant-wide applicability limitations (PALs).

NR 405.19   Forest County Potawatomi Class I area.

NR 405.01 NR 405.01 Applicability; purpose.

NR 405.01(1) (1) Applicability. The provisions of this chapter apply to the construction of any new major stationary source or any project at an existing major stationary source located in an area designated as attainment or unclassifiable.

NR 405.01(2) (2) Purpose. The purpose of this chapter is to establish, pursuant to s. 285.60, Stats., the requirements and procedures for reviewing and issuing air pollution control construction permits to any new major stationary source and any project at an existing major stationary source located in an area designated as attainment or unclassifiable.

NR 405.01 Note Note: Throughout the proposed rule, changes have been made which result in the provisions of this PSD rule differing from 40 CFR 51.166, the federal regulation on which it is based. In this rule, the term “air contaminant” is substituted for the term “pollutant” in the federal regulation and “department” for “the State”, “the Governor” and “reviewing authority”. The federal definition for “building, structure, facility or installation” is applied to the phrase “facility, building, structure, equipment, vehicle or action” – a similar term which appears in Wisconsin’s statutory provisions on air pollution. In addition, cross references in the federal regulation have been changed in the rule to comparable provisions in Wisconsin’s rule (e.g., “40 CFR Parts 60 and 61” has been changed to “chs. NR 440 and 447 to 449 and subch. IV of ch. NR 446”). Eliminated from the rule are provisions of the federal regulations which do not apply to the state’s PSD program (i.e., provisions governing EPA approval of plan revisions).

NR 405.01 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 1996, No. 492; CR 03-118: am. (1) and (2), Register June 2007 No. 618, eff. 7-1-07.

NR 405.02 NR 405.02 Definitions. The definitions contained in ch. NR 400 apply to the terms used in this chapter. In addition, the following definitions apply to the terms used in this chapter:

NR 405.02(1) (1) “Actual emissions” means the actual rate of emissions of a regulated NSR air contaminant from an emissions unit, as determined in accordance with pars. (a) to (c), except that this definition does not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under s. NR 405.18. Instead, subs. (2m) and (25f) shall apply for those purposes.

NR 405.02(1)(a) (a) In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the air contaminant during a consecutive 24-month period which precedes the particular date and which is representative of normal source operation. The department shall allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit’s actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

NR 405.02(1)(b) (b) The department may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.

NR 405.02(1)(c) (c) For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.

NR 405.02(2) (2) “Allowable emissions” means the emissions rate of a stationary source calculated using the maximum rated capacity of the source, unless the source is subject to federally enforceable limits which restrict the operating rate, or hours of operation, or both, and the most stringent of the following:

NR 405.02(2)(a) (a) The applicable standards as set forth in chs. NR 440 and 445 to 449 and under sections 111 and 112 of the Act (42 USC 7411 and 7412).

NR 405.02(2)(b) (b) The applicable emissions limitations, as set forth in chs. NR 400 to 499.

NR 405.02(2)(c) (c) The emissions rate specified as a federally enforceable permit condition.

NR 405.02(2m) (2m) “Baseline actual emissions” means the rate of emissions, in tons per year, of a regulated NSR air contaminant, as determined in accordance with pars. (a) to (d).

NR 405.02(2m)(a) (a) For any existing electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the unit actually emitted the air contaminant during any consecutive 24-month period selected by the owner or operator within the 5-year period immediately preceding when the owner or operator begins actual construction of the project. The department shall allow the use of a different time period upon a determination that it is more representative of normal source operation.

NR 405.02(2m)(a)1. 1. The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns and malfunctions.

NR 405.02(2m)(a)2. 2. The average rate shall be adjusted downward to exclude any emissions in excess of an emission limitation that was legally enforceable during the consecutive 24-month period.

NR 405.02(2m)(a)3. 3. For a regulated NSR air contaminant, when a project involves multiple emissions units, only one consecutive 24-month period may be used to determine the baseline actual emissions for the emissions units being changed. A different consecutive 24-month period may be used for each regulated NSR air contaminant.

NR 405.02(2m)(a)4. 4. The average rate may not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, or for adjusting this amount if required by subd. 2.

NR 405.02(2m)(b) (b) For an existing emissions unit, other than an electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the air contaminant during any consecutive 24-month period selected by the owner or operator within the 10-year period immediately preceding either the date the owner or operator begins actual construction of the project, or, the date a complete permit application is received by the department for a permit required under ch. NR 406 or for a permit revision under ch. NR 407, whichever is earlier, except that the 10-year period may not include any period earlier than November 15, 1990.

NR 405.02(2m)(b)1. 1. The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns and malfunctions.

NR 405.02(2m)(b)2. 2. The average rate shall be adjusted downward to exclude any emissions in excess of an emission limitation that was legally enforceable during the consecutive 24-month period.

NR 405.02(2m)(b)3. 3. The average rate shall be adjusted downward to exclude any emissions that would have exceeded an emission limitation with which the major stationary source must currently comply, had the major stationary source been required to comply with the limitation during the consecutive 24-month period. However, if an emission limitation is part of a maximum achievable control technology standard that the administrator proposed or promulgated under 40 CFR part 63, the baseline actual emissions need only be adjusted if the state has taken credit for the emissions reductions in an attainment demonstration or maintenance plan consistent with the requirements of s. NR 408.06 (9).

NR 405.02(2m)(b)4. 4. For a regulated NSR air contaminant, when a project involves multiple emissions units, only one consecutive 24-month period may be used to determine the baseline actual emissions for the emissions units being changed. A different consecutive 24-month period may be used for each regulated NSR air contaminant.

NR 405.02(2m)(b)5. 5. The average rate may not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, or for adjusting this amount if required by subds. 2. and 3.

NR 405.02(2m)(c) (c) For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of the unit shall equal zero; and thereafter, for all other purposes, shall equal the unit’s potential to emit.

NR 405.02(2m)(d) (d) For a PAL for a stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in par. (a), for other existing emissions units in accordance with the procedures contained in par. (b), and for a new emissions unit, in accordance with the procedures contained in par. (c).

NR 405.02(3) (3) “Baseline area” means any intrastate area, and every part thereof, designated as attainment or unclassifiable under section 107 (d) (1) (A) (ii) or (iii) of the Act (42 USC 7407 (d) (1) (A) (ii) or (iii)) in which the major source or major modification establishing the minor source baseline date would construct or would have an air quality impact for the pollutant for which the baseline date is established equal to or greater than 1 µg/m3 (annual average) for SO2, NO2, or PM10, or equal to or greater than 0.3mg/m3 (annual average) for PM2.5. Area redesignations under section 107 (d) (1) (A) (ii) or (iii) of the Act (42 USC 7407 (d) (1) (A) (ii) or (iii)) cannot intersect or be smaller than the area of impact of any major stationary source or major modification which either establishes a minor source baseline date or is subject to this chapter.

NR 405.02(4) (4) 

NR 405.02(4)(a) (a) “Baseline concentration” means that ambient concentration level which exists in the baseline area at the time of the applicable minor source baseline date. A baseline concentration is determined for each air contaminant for which a minor source baseline date is established and shall include:

NR 405.02(4)(a)1. 1. The actual emissions representative of sources in existence on the applicable minor source baseline date, except as provided in par. (b).

NR 405.02(4)(a)2. 2. The allowable emissions of major stationary sources which commenced construction before the major source baseline date, but were not in operation by the applicable minor source baseline date.

NR 405.02(4)(b) (b) The following will not be included in the baseline concentration and will affect the applicable maximum allowable increases:

NR 405.02(4)(b)1. 1. Actual emissions from any major stationary source on which construction commenced after the major source baseline date.

NR 405.02(4)(b)2. 2. Actual emissions increases and decreases at any stationary source occurring after the minor source baseline date.

NR 405.02(6) (6) “Begin actual construction” means, in general, initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework and construction of permanent storage structures. With respect to a change in method of operation, this term refers to those on-site activities, other than preparatory activities, which mark the initiation of the change.

NR 405.02(7) (7) “Best available control technology” or “BACT” means an emissions limitation, including a visible emissions standard, based on the maximum degree of reduction for each air contaminant subject to regulation under the Act which would be emitted from any proposed major stationary source or major modification which the department, on a case-by-case basis, taking into account energy, environmental, and economic impacts, and other costs, determines is achievable for such source or modification through application of production processes or available methods, systems, and techniques, including clean fuels, fuel cleaning or treatment or innovative fuel combination techniques for control of the air contaminant. In no event may application of best available control technology result in emissions of any air contaminant which would exceed the emissions allowed by any applicable standard under chs. NR 440 and 445 to 449 and under sections 111 and 112 of the Act (42 USC 7411 and 7412). Emissions from any source utilizing clean fuels or any other means to comply with this subsection may not be allowed to increase above the levels that would have been required under this subsection as it existed prior to enactment of the 1990 clean air Act amendments on November 15, 1990. If the department determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard or combination thereof, may be prescribed instead to satisfy the requirement for the application of best available control technology. The standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent results.

NR 405.02(8) (8) “Building, structure, facility or installation” or “facility, building, structure, equipment, vehicle or action” means all of the activities which emit or may emit a regulated NSR air contaminant, belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person, or persons under common control, except the activities of any vessel. Regulated NSR air contaminant emitting activities shall be considered as part of the same industrial grouping if they are classified under the same 2-digit major group as described in the Standard Industrial Classification Manual, 1987, incorporated by reference in s. NR 484.05.

NR 405.02(8m) (8m) “Clean coal technology” means any technology, including technologies applied at the precombustion, combustion, or post combustion stage, at a new or existing facility which will achieve significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization of coal in the generation of electricity, or process steam, which was not in widespread use as of November 15, 1990.

NR 405.02(8s) (8s) “Clean coal technology demonstration project” means a project using funds appropriated under the heading ‘Department of Energy-Clean Coal Technology’, up to a total amount of $2,500,000,000 for commercial demonstration of clean coal technology, or similar projects funded through appropriations for the U.S. environmental protection agency. The federal contribution for a qualifying project shall be at least 20% of the total cost of the demonstration project.

NR 405.02(9) (9) “Commence” as applied to construction of a major stationary source or major modification means that the owner or operator has all necessary preconstruction approvals or permits and has done one of the following:

NR 405.02(9)(a) (a) Begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time.

NR 405.02(9)(b) (b) Entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time.

NR 405.02(10) (10) “Complete” means, in reference to an application for a permit, that the application contains all the information necessary for processing the application. Designating an application complete for purposes of permit processing does not preclude the department from requesting or accepting any additional information.

NR 405.02(11) (11) “Construction” means any physical change or change in the method of operation, including fabrication, erection, installation, demolition, or modification of an emissions unit, which would result in a change in emissions.

NR 405.02(11c) (11c) “Continuous emissions monitoring system” or “CEMS” means all of the equipment that may be required to meet the data acquisition and availability requirements of this chapter, to sample, condition if applicable, analyze and provide a record of emissions on a continuous basis.

NR 405.02(11e) (11e) “Continuous emissions rate monitoring system” or “CERMS” means the total equipment required for the determination and recording of the air contaminant mass emissions rate in terms of mass per unit of time.

NR 405.02(11j) (11j) “Continuous parameter monitoring system” or “CPMS” means all of the equipment necessary to meet the data acquisition and data availability requirements of this chapter to monitor process and control device operational parameters, and to record average operational parameter values on a continuous basis.

NR 405.02 Note Note: Process and control device operational parameters include secondary voltages and electric currents, and other information, such as gas flow rate, O2 or CO2 concentrations.

NR 405.02(11m) (11m) “Electric utility steam generating unit” means any steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than 25 MW electrical output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical energy for sale is also considered in determining the electrical energy output capacity of the affected facility.

NR 405.02(12) (12) “Emissions unit” means any part of a stationary source which emits or would have the potential to emit any regulated NSR air contaminant and includes an electric utility steam generating unit. For purposes of this chapter, there are 2 types of emissions units described as follows:

NR 405.02(12)(a) (a) A new emissions unit is any emissions unit which is or will be newly constructed and which has existed for less than 2 years from the date the emissions unit first operated.

NR 405.02(12)(b) (b) An existing emissions unit is any emissions unit that does not meet the requirements in par. (a). Notwithstanding par. (a), a replacement unit, as defined in sub. (25k), is an existing emissions unit.

NR 405.02(13) (13) “Federal land manager” means, with respect to any lands in the United States, the secretary of the department with authority over such lands.

NR 405.02(15) (15) “Fugitive emissions” means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

NR 405.02(16) (16) “High terrain” means any area having an elevation 900 feet or more above the base of the stack of a source.

NR 405.02(17) (17) “Indian governing body” means the governing body of any tribe, band, or group of Indians subject to the jurisdiction of the United States and recognized by the United States as possessing power of self-government.

NR 405.02(18) (18) “Indian reservation” means any federally recognized reservation established by treaty, agreement, executive order, or act of congress.

NR 405.02(19) (19) “Innovative control technology” means any system of air pollution control that has not been adequately demonstrated in practice, but would have a substantial likelihood of achieving greater continuous emissions reduction than any control system in current practice or of achieving at least comparable reductions at lower cost in terms of energy, economics, or nonair quality environmental impacts.

NR 405.02(20) (20) “Low terrain” means any area other than high terrain.

NR 405.02(20m) (20m) “Lowest achievable emission rate” or “LAER” has the meaning given in s. NR 408.02 (19).

NR 405.02(21) (21) “Major modification” means any physical change in or change in the method of operation of a major stationary source that would result in a significant emissions increase of a regulated NSR air contaminant and a significant net emissions increase of that air contaminant from the major stationary source.

NR 405.02(21)(a) (a) Any significant emissions increase from any emissions units or net emissions increase at a major stationary source that is significant for volatile organic compounds or nitrogen oxides shall be considered significant for ozone.

NR 405.02(21)(b) (b) A physical change or change in the method of operation does not include any of the following:

NR 405.02(21)(b)1. 1. Routine maintenance, repair and replacement.

NR 405.02(21)(b)2. 2. Use of an alternative fuel or raw material by reason of any order under sections 2 (a) and (b) of the Federal Energy Supply and Environmental Coordination Act of 1974 (15 USC 791 to 798) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act (16 USC 791a to 828c).

NR 405.02(21)(b)3. 3. Use of an alternative fuel by reason of an order or rule under section 125 of the Act (42 USC 7425).