Chapter NR 405

NR 405.07(9)(a)1m. 1m. A new major stationary source for a regulated NSR contaminant other than GHG, which will emit or will have the potential to emit 75,000 tpy or more of GHG on a carbon dioxide equivalent basis.

NR 405.07(9)(a)2m. 2m. An existing major stationary source for a regulated NSR contaminant other than GHG, which will have an emissions increase of a regulated NSR contaminant other than GHG, and an emissions increase of 75,000 tpy or more of GHG on a carbon dioxide equivalent basis.

NR 405.07 Note Note: The department intends to regulate GHG consistent with the 40 CFR 51.166 (June 3, 2010). In the event of litigation or congressional action which impacts the federal regulations, the department will commence rulemaking to remain consistent with the resulting federal regulations.

NR 405.07(9)(b) (b) For purposes of this subsection, emissions of GHG on a carbon dioxide equivalent basis shall be determined by multiplying the mass amount of emissions, in tons per year, for each of the constituent gases in the pollutant GHG by the associated global warming potential for the gas in Table B, and then summing the products obtained.

- See PDF for table

NR 405.07 Note 1 The Chemical Abstract Service or CAS numbers refer to the unique chemical abstracts service registry number assigned to a specific chemical, isomer or mixture of chemicals or isomers and recorded in the CAS chemical registry system by the Chemical Abstracts Service, PO Box 3012, Columbus OH 42310, phone: [phone].

NR 405.07 Note Note: The GWPs in Table B are based upon the GWPs codified by the EPA at 40 CFR part 98, Subpart A, Table A-1, as of October 22, 2010.

NR 405.07 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; corrections in (6) to (8) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1988, No. 388; am. (8) (a) 3., Register, April, 1995, No. 472, eff. 5-1-95; am. (1), (4) (intro.), (5) and (6), Register, December, 1995, No. 480, eff. 1-1-96; am. (3), (5), (8) (intro.), (a) 6., 8, 12, renum. (4) (b) and (c) to be (4) (a) and (b) and am. (4) (a) 27., (b) (intro.), Register, December, 1996, No. 492, eff. 1-1-97; am. (8) (a) 9., Register, October, 1999, No. 526, eff. 11-1-99; CR 07-104: am. (4) (a) 20. Register July 2008 No. 631, eff. 8-1-08; CR 10-050: cr. (8) (a) 3m. Register November 2010 No. 659, eff. 12-1-10; EmR1046: emerg. cr. (9), eff. 12-15-10; CR 10-144: cr. (9) Register August 2011 No. 668, eff. 9-1-11; 2015 Wis. Act 33: consol. (9) (a) (intro.) and (9) (a) 1. and renum. to (9) (a) (intro.) and am., renum. (9) (a) 1. a. and b. to (9) (a) 1m. and 2m., r. (9) (a) 2. Register July 2015 No. 715, eff. 8-1-15; CR 15-077: am. (8) (a) 3m. Register July 2016 No. 727, eff. 8-1-16.

NR 405.08 NR 405.08 Control technology review.

NR 405.08(1) (1) A major stationary source or major modification shall meet each applicable emissions limitation under chs. NR 400 to 499 and under sections 111 and 112 of the Act (42 USC 7411 and 7412).

NR 405.08(2) (2) A new major stationary source shall apply best available control technology for each air contaminant that it would have the potential to emit in significant amounts.

NR 405.08(3) (3) A major modification shall apply best available control technology for each air contaminant for which it would be a significant net emissions increase at the source. This requirement applies to each proposed emissions unit at which a net emissions increase in the air contaminant would occur as a result of a physical change or change in the method of operation in the unit.

NR 405.08(4) (4) For phased construction projects, the determination of best available control technology shall be reviewed and modified as appropriate at the latest reasonable time which occurs no later than 18 months prior to commencement of construction of each independent phase of the project. At such time, the owner or operator of the applicable stationary source may be required to demonstrate the adequacy of any previous determination of best available control technology for the source.

NR 405.08 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. (1), Register, April, 1995, No. 472, eff. 5-1-95; am. (3), Register, December, 1995, No. 480, eff. 1-1-96.

NR 405.09 NR 405.09 Source impact analysis. The owner or operator of the proposed major source or major modification shall demonstrate that allowable emission increases from the proposed major source or major modification, in conjunction with all other applicable emissions increases or reduction, including secondary emissions, would not cause or contribute to air pollution in violation of either of the following:

NR 405.09(1) (1) Any national ambient air quality standard in any air quality control region.

NR 405.09(2) (2) Any applicable maximum allowable increase over the baseline concentration in any area.

NR 405.09 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. (intro.), Register, December, 1996, No. 492, eff. 1-1-97.

NR 405.10 NR 405.10 Air quality models.

NR 405.10(1) (1) All estimates of ambient concentrations required under this chapter shall be based on the applicable air quality models, data bases, and other requirements specified in the Guideline on Air Quality Models (Revised) in Appendix W of 40 CFR part 51, incorporated by reference in s. NR 484.04.

NR 405.10(2) (2) Where an air quality impact model specified in the Guideline on Air Quality Models in Appendix W of 40 CFR part 51 is inappropriate, the model may be modified or another model substituted.

NR 405.10(3) (3) A substitution or modification of a model shall be subject to the public comment procedures set forth in s. NR 405.15.

NR 405.10(4) (4) Written approval of the administrator shall be obtained for any modification or substitution.

NR 405.10 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. (1) and (5), Register, April, 1988, No. 388, eff. 5-1-88; am. (1) and (5), r. (6), Register, May, 1992, No. 437, eff. 6-1-92; am. (1) to (3), r. (5), Register, April, 1995, No. 472, eff. 5-1-95; am. (4), Register, December, 1995, No. 480, eff. 1-1-96.

NR 405.11 NR 405.11 Air quality analysis.

NR 405.11(1) (1) Preapplication analysis.

NR 405.11(1)(a) (a) Any application for a permit under this chapter shall contain an analysis of ambient air quality in the area that the major stationary source or major modification would affect for each of the following air contaminants:

NR 405.11(1)(a)1. 1. For the major source, each air contaminant that it would have the potential to emit in a significant amount.

NR 405.11(1)(a)2. 2. For the major modification, each air contaminant for which it would result in a significant net emissions increase.

NR 405.11(1)(b) (b) For any air contaminant for which no national ambient air quality standard exists, the analysis shall contain such air quality monitoring data as the department determines is necessary to assess ambient air quality for that air contaminant in any area that the emissions of that air contaminant would affect.

NR 405.11(1)(c) (c) For any air contaminant for which a standard does exist, the analysis shall contain continuous air quality monitoring data gathered for purposes of determining whether emissions of that air contaminant would cause or contribute to a violation of the standard or any maximum allowable increase.

NR 405.11(1)(d) (d) In general, the continuous air monitoring data that is required shall be gathered over a period of one year and shall represent the year preceding receipt of the application, except that, if the department determines that a complete and adequate analysis can be accomplished with monitoring data gathered over a period shorter than one year (but not to be less than 4 months), the data that is required shall be gathered over at least that shorter period.

NR 405.11(1)(e) (e) The owner or operator of a proposed major stationary source or major modification of volatile organic compounds who satisfies all conditions of 40 CFR part 51, Appendix S, section IV, incorporated by reference in s. NR 484.04, may provide post-approval monitoring data for ozone in lieu of providing pre-construction data as required under this section.

NR 405.11(2) (2) Post-construction monitoring. The owner or operator of a major stationary source or major modification shall, after construction of the stationary source or modification, conduct such ambient monitoring as the department determines is necessary to determine the effect emissions from the stationary source or modification may have, or are having, on air quality in any area.

NR 405.11(3) (3) Operation of monitoring stations. The owner or operator of a major stationary source or a major modification shall meet the requirements of Appendix B to 40 CFR part 58, incorporated by reference in s. NR 484.04, during the operation of monitoring stations for purposes of satisfying this section.

NR 405.11 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. (1) (b), (c), (e) and (3), r. (4), Register, May, 1992, No. 437, eff. 6-1-92; am. (1) (e) and (3), Register, December, 1995, No. 480, eff. 1-1-96.

NR 405.12 NR 405.12 Source information.

NR 405.12(1) (1) The owner or operator of a proposed major source or major modification shall submit all information necessary to perform any analysis or make any determination required under procedures established in accordance with this chapter.

NR 405.12(2) (2) Such information shall include:

NR 405.12(2)(a) (a) A description of the nature, location, design capacity, and typical operating schedule of the major source or major modification, including specifications and drawings showing its design and plant layout.

NR 405.12(2)(b) (b) A detailed schedule for construction of the major source or major modification.

NR 405.12(2)(c) (c) A detailed description as to what system of continuous emission reduction is planned by the major source or major modification, emission estimates, and any other information as necessary to determine that best available control technology as applicable would be applied.

NR 405.12(3) (3) The owner or operator shall also provide information on all of the following:

NR 405.12(3)(a) (a) The air quality impact of the major source or major modification, including meteorological and topographical data necessary to estimate such impact.

NR 405.12(3)(b) (b) The air quality impacts and the nature and extent of any or all general, commercial, residential, industrial and other growth which has occurred since August 7, 1977, in the area the major source or major modification would affect.

NR 405.12 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. (3) (intro.), Register, December, 1996, No. 492, eff. 1-1-97.

NR 405.13 NR 405.13 Additional impact analyses.

NR 405.13(1) (1) The owner or operator shall provide an analysis of the impairment to visibility, soils, and vegetation that would occur as a result of the major source or major modification and general commercial, residential, industrial and other growth associated with the major source or major modification. The owner or operator need not provide an analysis of the impact on vegetation having no significant commercial or recreational value.

NR 405.13(2) (2) The owner or operator shall provide an analysis of the air quality impact projected for the area as a result of general, commercial, residential, industrial and other growth associated with the major source or major modification.

NR 405.13 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87.

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

NR 405.14(1) (1) Notice to epa. The department shall transmit to the administrator a copy of each permit application relating to a major stationary source or major modification and provide notice to the administrator of every action related to the consideration of such permit.

NR 405.14(2) (2) Federal land manager. The federal land manager and the federal official charged with direct responsibility for management of Class I lands have an affirmative responsibility to protect the air quality related values (including visibility) of any such lands and to consider, in consultation with the administrator, whether a proposed source or modification would have an adverse impact on such values.

NR 405.14(3) (3) Denial — impact on air quality related values. The department shall allow the federal land manager of any Class I lands the opportunity to present to the department after the department’s preliminary determination required under procedures developed in accordance with s. NR 405.16, a demonstration that the emissions from the proposed major source or major modification would have an adverse impact on the air quality related values (including visibility) of any federal mandatory Class I lands, notwithstanding that the change in air quality resulting from emissions from such source or modification would not cause or contribute to concentrations which would exceed the maximum allowable increases for a Class I area. If the department concurs with such demonstration, the permit may not be issued.

NR 405.14(4) (4) Class I variances. The owner or operator of a proposed major source or major modification may demonstrate to the federal land manager that the emissions from the source would have no adverse impact on the air quality-related values, including visibility, of these lands, notwithstanding that the change in air quality resulting from emissions from the source or modification would cause or contribute to concentrations which would exceed the maximum allowable increases for a Class I area. If the federal land manager concurs with this demonstration and so certifies to the department, the department may, provided that applicable requirements of this chapter are otherwise met, issue the permit with such emission limitations as may be necessary to assure that emissions of particulate matter measured as PM10, sulfur dioxide and nitrogen dioxide would not exceed the following maximum allowable increases over minor source baseline concentration for these air contaminants.

- See PDF for table

NR 405.14(5) (5) Sulfur dioxide variance by department with federal land manager’s concurrence.

NR 405.14(5)(a) (a) The owner or operator of a proposed major source or major modification which cannot be approved under procedures developed pursuant to sub. (4) may demonstrate to the department that the source or modification cannot be constructed by reason of any maximum allowable increase for sulfur dioxide for periods of 24-hours or less applicable to any Class I area and, in the case of federal mandatory Class I areas, that a variance under this subsection would not adversely affect the air quality related values of the area (including visibility).

NR 405.14(5)(b) (b) The department, after consideration of the federal land manager’s recommendation (if any) and subject to his or her concurrence, may grant, after notice and an opportunity for a public hearing, a variance from such maximum allowable increase.

NR 405.14(5)(c) (c) If such variance is granted, the department shall issue a permit to such major source or major modification in accordance with provisions developed pursuant to sub. (7), provided that the applicable requirements of this chapter are otherwise met.

NR 405.14(6) (6) Variance by the department with the concurrence of the president of the United States.

NR 405.14(6)(a) (a) The recommendations of the department and the federal land manager shall be transferred to the president in any case where the department recommends a variance in which the federal land manager does not concur.

NR 405.14(6)(b) (b) The president may approve the department’s recommendation if he or she finds that such variance is in the national interest.

NR 405.14(6)(c) (c) If such a variance is approved, the department shall issue a permit in accordance with provisions developed pursuant to the requirements of sub. (7), provided that the applicable requirements of this chapter are otherwise met.

NR 405.14(7) (7) Emission limitations for presidential denial or departmental variance. In the case of a permit issued under procedures developed pursuant to sub. (5) or (6), the major source or major modification shall comply with emission limitations as may be necessary to assure that emissions of sulfur dioxide from the major source or major modification would not, during any day on which the otherwise applicable maximum allowable increases are exceeded, cause or contribute to concentrations which would exceed the following maximum allowable increases over the baseline concentration and to assure that such emissions would not cause or contribute to concentrations which exceed the otherwise applicable maximum allowable increase for periods of exposure of 24 hours or less for more than 18 days, not necessarily consecutive, during any annual period.

Maximum Allowable SO2 Increase
(µg/m3)

- See PDF for table

NR 405.14 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. (4) and (7), Register, May, 1992, No. 437, eff. 6-1-92; am. (4), Register, April, 1995, No. 472, eff. 5-1-95; am. (1), (2) and (4), Register, December, 1995, No. 480, eff. 1-1-96; am. (7), Register, December, 1996, No. 492, eff. 1-1-97.

NR 405.15 NR 405.15 Public participation.

NR 405.15(1) (1) The department shall notify all applicants within 20 days as to the completeness of the application or any deficiency in the application or information submitted. In the event of such a deficiency, the date of receipt of the application shall be the date on which the department received all required information.

NR 405.15(2) (2) Within 205 business days after receipt of a complete application, the department shall:

NR 405.15(2)(a) (a) Make a preliminary determination whether construction should be approved, approved with conditions, or disapproved.

NR 405.15(2)(b) (b) Make available in at least one location in each region in which the proposed source would be constructed a copy of all materials the applicant submitted, a copy of the preliminary determination, and a copy or summary of other materials, if any, considered in making the preliminary determination.

NR 405.15(2)(c) (c) Notify the public, by advertisement in a newspaper of general circulation in each region in which the proposed source would be constructed, of the application, the preliminary determination, the degree of increment consumption that is expected from the source or modification, and of the opportunity for comment at a public hearing, as well as written public comment.

NR 405.15(2)(d) (d) Send a copy of the notice of public comment to the applicant, the administrator and to officials and agencies having cognizance over the location where the proposed construction would occur as follows: any other state or local air pollution control agencies; the chief executives of the city and county where the source would be located; any comprehensive regional land use planning agency; and any state, federal land manager, or Indian governing body whose lands may be affected by emissions from the major source or major modification.

NR 405.15(2)(e) (e) Provide opportunity for a public hearing for interested persons to appear and submit written or oral comments on the air quality impact of the source, alternatives to it, the control technology required, and other appropriate considerations.

NR 405.15(2)(f) (f) Consider all written comments submitted within a time specified in the notice of public comment and all comments received at any public hearing in making a final decision on the approvability of the application. The department shall make all comments available for public inspection in the same locations where the department made available pre-construction information relating to the proposed major source or major modification.

NR 405.15(2)(g) (g) Make a final determination whether construction should be approved, approved with conditions, or disapproved.

NR 405.15(2)(h) (h) Notify the applicant in writing of the final determination and make such notification available for public inspection at the same location where the department made available pre-construction information and public comments relating to the source.

NR 405.15 Note Note: The requirement that a final permit determination be accomplished within one year of receipt of a permit application in the federal regulations has been changed to within 205 business days of receipt of application in this subsection.

NR 405.15 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. (2) (d), Register, December, 1995, No. 480, eff. 1-1-96; am. (2) (intro), Register, August, 2000, No. 536, eff. 9-1-00.

NR 405.16 NR 405.16 Source obligation.

NR 405.16(1) (1) Approval to construct does not relieve any owner or operator of the responsibility to comply fully with applicable provisions of the chs. NR 400 to 499 and any other requirements under local, state or federal law.

NR 405.16(2) (2) At such time that a particular source or modification becomes a major stationary source or major modification solely by virtue of a relaxation in any enforceable limitation which was established after August 7, 1980, on the capacity of the source or modification otherwise to emit an air contaminant such as a restriction on hours of operation, then the requirements of ss. NR 405.08 to 405.17 shall apply to the source or modification as though construction had not yet commenced on the major source or major modification.

NR 405.16(3) (3) For a project involving existing emissions units at a major stationary source which does not have a PAL, in circumstances where the calculated difference between projected actual emissions using the method specified in s. NR 405.02 (25f) (b) 1. to 2., and baseline actual emissions does not exceed the level that is considered significant for the air contaminant, the owner or operator shall do the following as applicable:

NR 405.16(3)(a) (a) Before beginning actual construction of the project, document and maintain a record of all of the following:

NR 405.16(3)(a)1. 1. A description of the project.

NR 405.16(3)(a)2. 2. Identification of the emissions unit or units whose emissions of a regulated NSR air contaminant could be affected by the project.

NR 405.16(3)(a)3. 3. The calculation of the net emissions increase under s. NR 405.02 (24) (a) that was used to determine that the project is not a major modification for any regulated NSR air contaminant, including the baseline actual emissions, the projected actual emissions, the amount of emissions excluded under s. NR 405.02 (25f) (b) 2. and an explanation why the amount was excluded, and any netting calculations, if applicable.