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Register February 2022 No. 794
Chapter NR 408
CONSTRUCTION PERMITS FOR DIRECT MAJOR SOURCES IN NONATTAINMENT AREAS
NR 408.01   Applicability; purpose.
NR 408.02   Definitions.
NR 408.025   Methods for calculation of increases in actual emissions.
NR 408.03   Source applicability and exemptions.
NR 408.04   Control technology review.
NR 408.05   Reasonable further progress.
NR 408.06   Emissions offsets.
NR 408.07   Source impact analysis.
NR 408.08   Additional conditions for approval.
NR 408.09   Permit application review; public participation.
NR 408.10   Source obligation.
NR 408.11   Plant-wide applicability limitations (PALs).
Ch. NR 408 Note Note: The preexisting sections NR 408.01 and 408.02 were repealed, sections NR 408.025 to 408.07 were renumbered to NR 406.08 to 406.13 and am. NR 406.10 and 406.11, Register, May, 1993, No. 449, eff. 6-1-93.
NR 408.01 NR 408.01Applicability; purpose.
NR 408.01(1)(1)Applicability. This chapter applies to all new direct major sources and all major modifications to direct major sources located in areas designated as ozone transport regions or nonattainment areas by the U.S. environmental protection agency or by the department.
NR 408.01(2) (2)Purpose. The purpose of this chapter is to establish requirements and procedures, in addition to those in ch. NR 406, for reviewing and issuing construction permits to all new direct major sources and all major modifications to direct major sources located in areas designated as ozone transport regions or nonattainment areas by the U.S. environmental protection agency or by the department.
NR 408.01 History History: Cr. Register, May, 1993, No. 449, eff. 6-1-93; am. Register, June, 1995, No. 474, eff. 7-1-95.
NR 408.02 NR 408.02Definitions. 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 408.02(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 408.11. Instead, subs. (2m) and (28s) shall apply for those purposes.
NR 408.02(1)(a) (a) Actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant 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 by the department 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 408.02(1)(b) (b) For any emissions unit which has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.
NR 408.02(1)(c) (c) The department may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.
NR 408.02(2) (2)“Allowable emissions" means the emissions rate of a stationary source calculated using the maximum rated capacity of the source, or using federally enforceable limits which restrict the operating rate, or hours of operation or both, if the source is subject to such federally enforceable limits, and using the most stringent of the following:
NR 408.02(2)(a) (a) Any applicable standards in chs. NR 440 and 447 to 449 and subch. IV of ch. NR 446.
NR 408.02(2)(b) (b) Any applicable emissions limitations in chs. NR 400 to 499.
NR 408.02(2)(c) (c) Any applicable state implementation plan emissions limitation including a limitation with a future compliance date.
NR 408.02(2)(d) (d) Any emissions rate specified as a federally enforceable permit condition, including a limitation with a future compliance date.
NR 408.02(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 408.02(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 408.02(2m)(a)1. 1. The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns and malfunctions.
NR 408.02(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 408.02(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 408.02(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 408.02(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 408.02(2m)(b)1. 1. The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns and malfunctions.
NR 408.02(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 408.02(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 408.02(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 408.02(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 408.02(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, shall equal the unit's potential to emit.
NR 408.02(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 408.02(3) (3)“Begin actual construction" means the initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. Activities include, but are not limited to, installation of building supports and foundations, laying of underground pipe work 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 408.02(4) (4)“Best available control technology" or “BACT" means an emission limitation, including a visible emissions standard, based on the maximum degree of reduction for each regulated NSR air contaminant 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 the source or modification through application of production processes or available methods, systems and techniques, including fuel cleaning or treatment or innovative fuel combustion 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 447 to 449 and subch. IV of ch. NR 446 and 40 CFR parts 60 and 61. 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 a design, equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent results.
NR 408.02(5) (5)“Building, structure, facility or installation" means all of the activities which emit or may emit a regulated NSR air contaminant, which 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 activity of any vessel. Regulated NSR air contaminant sources 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 408.02(6) (6)“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 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 408.02(7) (7)“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 408.02(8) (8)“Commence" as applied to construction of a major 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 408.02(8)(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 408.02(8)(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 408.02(9) (9)“Commence operation" means the initial startup of an emissions unit following completion of construction which results in the emission of an air contaminant for which the area is designated nonattainment. Any replacement unit that requires shakedown commences operation after a reasonable shakedown period, not to exceed 180 days.
NR 408.02(10) (10)“Complete" means, in reference to an application for a permit, that the application contains all of the information necessary, as determined by the department, 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 408.02(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 408.02(11e) (11e)“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 408.02(11m) (11m)“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 408.02(11s) (11s)“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 408.02 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 408.02(12) (12)“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 of 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 408.02(13) (13)“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 408.02(13)(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 408.02(13)(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. (29s), is an existing emissions unit.
NR 408.02(13m) (13m)“Federal land manager" means, with respect to any lands in the United States, the secretary of the department with authority over the lands.
NR 408.02(14) (14)“Fossil fuel-fired boiler" means a unit, or combination of units, which combusts fossil fuel, or receives heat from other fossil fuel-fired units, to produce steam by indirect heat transfer, and includes units that produce steam for electric generation. The heat input for the units includes any heat provided to the units from the combustion of fossil fuels in other units. The total heat input from fossil fuel-firing for a combination of units is the sum of the heat inputs from fossil fuel-firing for each unit.
NR 408.02(15) (15)“Fossil fuel-fired electric plant" means one or more units that combust fossil fuel to produce electricity. The total heat input for a plant from fossil fuel-firing is the sum of the heat inputs from fossil fuel-firing for each combustion unit that is part of the plant.
NR 408.02(16) (16)“Fugitive emissions" means those emissions which could not reasonably pass through a stack, chimney, vent or other functionally equivalent opening.
NR 408.02(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 408.02(18) (18)“Indian tribe" means any Indian tribe, band, nation or other organized group or community, including any Alaskan native village, which is federally recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
NR 408.02(19) (19)“Lowest achievable emission rate" or “LAER" means, for any source, the more stringent rate of emissions based on the following:
NR 408.02(19)(a) (a) The most stringent emissions limitation which is contained in the implementation plan of any state for the class or category of stationary source, unless the owner or operator of the proposed stationary source demonstrates that the limitation is not achievable.
NR 408.02(19)(b) (b) The most stringent emissions limitation which is achieved in practice by the class or category of stationary source. This limitation, when applied to a modification, means the lowest achievable emission rate for the new or modified emissions units within a stationary source. In no event may the application of the term permit a proposed new or modified stationary source to emit any pollutant in excess of the amount allowable under a new source standard of performance which applies under ch. NR 440 or under 40 CFR part 60.
NR 408.02(20) (20)“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 408.02(20)(a) (a) Any physical change in, or change in the method of operation of a major source of VOCs located in an extreme nonattainment area for ozone which results in any increase in emissions of VOCs from any discrete operation, emissions unit or other pollutant emitting activity at the source shall be considered a major modification for ozone.
NR 408.02(20)(b) (b) Any significant emissions increase from any emissions units or net emissions increase at a major stationary source, that is considered significant for VOCs shall be considered significant for ozone.
NR 408.02(20)(c) (c) For the purpose of applying the requirements of s. NR 408.03 (6) to major sources of nitrogen oxides located in ozone nonattainment areas or in ozone transport regions, any significant net emissions increase of nitrogen oxides is considered significant for ozone, in addition to any separate requirements for nitrogen oxides.
NR 408.02(20)(d) (d) For the purposes of applying the requirements of s. NR 408.03 (4) to major sources of PM10 precursors, any significant net emissions increase of a PM10 precursor is considered significant for PM10.
NR 408.02(20)(e) (e) A physical change or change in the method of operation does not include:
NR 408.02(20)(e)1. 1. Routine maintenance, repair and replacement.
NR 408.02(20)(e)2. 2. Use of an alternative fuel or raw material by reason of any order under section 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 408.02(20)(e)3. 3. Use of an alternative fuel by reason of an order or rule under section 125 of the Act (42 USC 7425).
NR 408.02(20)(e)4. 4. Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste.
NR 408.02(20)(e)5. 5. Use of an alternative fuel or raw material by a stationary source when one of the following applies:
NR 408.02(20)(e)5.a. 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.
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Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.