Chapter NR 409

NR 409.055(2)(c) (c) A list of the current owners and operators of the unit and any other owners and operators of the unit, starting on the date of the signing of the interconnection agreement under sub. (1) (b), and a statement that, starting on that date, there has been no owner or operator of the unit, division or subsidiary or affiliate or parent company of an owner or operator of the unit, or combination thereof whose principal business is the sale, transmission or distribution of electricity or that is a public utility under the jurisdiction of a state or local utility regulatory authority.

NR 409.055(2)(d) (d) A summary of the terms of the interconnection agreement and any related power purchase agreement under sub. (1) (b) and any successor agreement under sub. (4) (d) 2., including the date on which the agreement was signed, the amount of electricity that may be required to be produced for sale by each generator served by the unit and the provisions for expiration or termination of the agreement.

NR 409.055(2)(e) (e) A copy of the interconnection agreement and any related power purchase agreement under sub. (1) (b) and any successor agreement under sub. (4) (d) 2.

NR 409.055(2)(f) (f) The nameplate capacity of each generator served by the unit.

NR 409.055(2)(g) (g) For each year starting in 1985, the actual annual electrical output of each generator served by the unit, the total amount of electricity produced for sales to any customer by each generator, and the total amount of electricity produced and sold as required by the interconnection agreement and any related power purchase agreement under sub. (1) (b) or any successor agreement under sub. (4) (d) 2.

NR 409.055(2)(h) (h) A statement that each generator served by the unit actually produced electricity for sale only for incidental electricity sales, in accordance with sub. (1) (c), required under the interconnection agreement and any related power purchase agreement under sub. (1) (b) or any successor agreement under sub. (4) (d) 2.

NR 409.055(2)(i) (i) The special provisions of sub. (4).

NR 409.055(3) (3) Department’s action.

NR 409.055(3)(a) (a)

NR 409.055(3)(a)1. 1. For any unit meeting the requirements of subs. (1) and (2), the department shall issue an exemption from the requirements of the acid rain program, except for the provisions of this section, 40 CFR 72.2 to 72.6, and 40 CFR 72.10 to 72.13.

NR 409.055(3)(a)2. 2. If a petition for exemption is submitted for a unit but the designated representative fails to demonstrate that the requirements of sub. (1) are met, the department shall deny an exemption under this section.

NR 409.055(3)(b) (b) In issuing or denying an exemption under par. (a), the department shall treat the petition for exemption as a permit application and apply the procedures used for issuing or denying the draft, proposed and final acid rain portion of operation permits.

NR 409.055(3)(c) (c) An exemption issued under par. (a) 1. shall become effective on January 1 of the first full year the unit meets the requirements of sub. (1).

NR 409.055(3)(d) (d) An exemption issued under par. (a) 1. shall be effective until the date on which the unit loses the exemption under sub. (4) (d).

NR 409.055(3)(e) (e) After issuance of the exemption under pars. (a) and (b), the department shall amend under s. NR 409.12 (4) the operation permit covering the source at which the unit is located, if the source has an operation permit, to add the provisions and requirements of the exemption under par. (a) 1. and sub. (4).

NR 409.055(4) (4) Special provisions.

NR 409.055(4)(a) (a) Duty to comply. The owners and operators and, to the extent applicable, the designated representative of a unit exempt under this section shall comply with the requirements of the acid rain program concerning all periods for which the exemption is not in effect, even if the requirements arise, or must be complied with, after the exemption takes effect.

NR 409.055(4)(b) (b) Scope of exemption. For any period for which a unit is exempt under this section, the unit is not an affected unit under this chapter and ch. NR 407 and is not eligible to be an opt-in source under 40 CFR part 74. As an unaffected unit, the unit shall continue to be subject to any other applicable requirements under ch. NR 407.

NR 409.055(4)(c) (c) Recordkeeping. For a period of 5 years from the date the records are created, the owners and operators of a unit exempt under this section shall retain at the source that includes the unit records demonstrating that the requirements of sub. (1) are met. The owners and operators bear the burden of proof that the requirements of this section are met. The 5-year period for keeping records may be extended for cause, at any time prior to the end of the period, in writing by the administrator or the department. Records shall include all of the following information:

NR 409.055(4)(c)1. 1. A copy of the interconnection agreement and any related power purchase agreement under sub. (1) (b) and any successor agreement under par. (d) 2.

NR 409.055(4)(c)2. 2. The nameplate capacity of each generator served by the unit.

NR 409.055(4)(c)3. 3. For each year starting in 1985, the actual annual electrical output of each generator served by the unit, the total amount of electricity produced for sales to any customer by each generator, and the total amount of electricity produced and sold as required by the interconnection agreement and any related power purchase agreement under sub. (1) (b) or any successor agreement under par. (d) 2.

NR 409.055(4)(d) (d) Loss of exemption.

NR 409.055(4)(d)1. 1. A ‘‘successor agreement” is an agreement that satisfies all of the following:

NR 409.055(4)(d)1.a. a. Modifies, replaces or supersedes the interconnection agreement or related power purchase agreement under sub. (1) (b).

NR 409.055(4)(d)1.b. b. Is between the owners and operators of the unit and a person that is contractually obligated to sell electricity to the owners and operators of the unit and either whose principal business is the sale, transmission or distribution of electricity or that is a public utility under the jurisdiction of a state or local utility regulatory authority.

NR 409.055(4)(d)1.c. c. Requires the generator served by the unit to produce electricity for sale to the person under subd. 2. b. and only for incidental electricity sales, so that the total amount of electricity that the generator is required to produce for sale under the interconnection agreement or related power purchase agreement, to the extent they are still in effect, and the successor agreement may not exceed the total amount of electricity that the generator was required to produce for sale under the interconnection agreement or related power purchase agreement under sub. (1) (b).

NR 409.055(4)(d)2. 2. On the earliest of the following dates, a unit exempt under this section shall lose its exemption and become an affected unit under this chapter and ch. NR 407:

NR 409.055(4)(d)2.a. a. The first date on which there is an owner or operator of the unit, division or subsidiary or affiliate or parent company of an owner or operator of the unit, or combination thereof, whose principal business is the sale, transmission or distribution of electricity or that is a public utility under the jurisdiction of a state or local utility regulatory authority.

NR 409.055(4)(d)2.b. b. If any generator served by the unit actually produces any electricity for sale other than for sale to the person specified as the purchaser in the interconnection agreement or any related power purchase agreement under sub. (1) (b) or a successor agreement under this subdivision, then the day after the date on which the electricity is sold.

NR 409.055(4)(d)2.c. c. If any generator served by the unit actually produces any electricity for sale to the person specified as the purchaser in the interconnection agreement or any related power purchase agreement under sub. (1) (b) or a successor agreement under this subdivision, where the sale is not required under that interconnection agreement or related power purchase agreement or successor agreement or where the sale will result in total sales for a calendar year exceeding 10% of the nameplate capacity of that generator times 8,769 hours per year, then the day after the date on which the sale is made.

NR 409.055(4)(d)2.d. d. If any generator served by the unit actually produces any electricity for sale to the person specified as the purchaser in the interconnection agreement or related power purchase agreement under sub. (1) (b) or a successor agreement under this subdivision, where the sale results in total sales for a calendar year exceeding 10% of the actual electric output of the generator for that year, then January 1 of the year after that year.

NR 409.055(4)(d)2.e. e. If the interconnection agreement or related power purchase agreement under sub. (1) (b) expires or is terminated, no successor agreement under this subdivision, is in effect, and any generator served by the unit actually produces any electricity for sale, then the day after the date on which the electricity is sold.

NR 409.055(4)(d)3. 3. Notwithstanding s. NR 409.08 (1) (b) and (c), the designated representative for a unit that loses its exemption under this section shall submit a complete acid rain portion of an operation permit application no later than 60 days after the first date on which the unit is no longer exempt.

NR 409.055(4)(d)4. 4. For the purpose of applying monitoring requirements under 40 CFR part 75, a unit that loses its exemption under this section shall be treated as a new unit that commenced commercial operation on the first date on which the unit is no longer exempt.

NR 409.055 History History: Cr., Register, November, 1999, No. 527, eff. 12-1-99.

NR 409.06 NR 409.06 Standard requirements.

NR 409.06(1) (1) Permit requirements.

NR 409.06(1)(a) (a) The designated representative of each affected source and each affected unit at the source shall:

NR 409.06(1)(a)1. 1. Except for a phase I acid rain permit to be issued by EPA, submit a complete acid rain portion of an operation permit application under this chapter in accordance with the deadlines specified in s. NR 409.08 (1).

NR 409.06(1)(a)2. 2. Submit in a timely manner any supplemental information that the department determines is necessary in order to review an application for the acid rain portion of an operation permit and issue or deny an acid rain portion of an operation permit.

NR 409.06(1)(b) (b) The owners and operators of each affected source and each affected unit at the source shall:

NR 409.06(1)(b)1. 1. Operate the unit in compliance with a complete acid rain portion of an operation permit application or a superseding acid rain portion of an operation permit issued by the department; and

NR 409.06(1)(b)2. 2. Have an acid rain portion of an operation permit.

NR 409.06(2) (2) Monitoring requirements.

NR 409.06(2)(a) (a) The owners and operators and, to the extent applicable, designated representative of each affected source and each affected unit at the source shall comply with the monitoring requirements as provided in 40 CFR part 75.

NR 409.06(2)(b) (b) The emissions measurements recorded and reported in accordance with 40 CFR part 75 shall be used to determine compliance by the unit with the acid rain emissions limitations and emissions reduction requirements for sulfur dioxide and nitrogen oxides under the acid rain program.

NR 409.06(2)(c) (c) The requirements of 40 CFR part 75 do not affect the responsibility of the owners and operators to monitor emissions of other pollutants or other emissions characteristics at the unit under other applicable requirements of the act and other provisions of the operation permit for the source.

NR 409.06(3) (3) Sulfur dioxide requirements.

NR 409.06(3)(a) (a) The owners and operators of each affected source and each affected unit at the source shall:

NR 409.06(3)(a)1. 1. Hold allowances, as of the allowance transfer deadline, in the unit’s compliance subaccount, after deductions under 40 CFR 73.34 (c), not less than the total annual emissions of sulfur dioxide for the previous calendar year from the unit; and

NR 409.06(3)(a)2. 2. Comply with the applicable acid rain emissions limitation for sulfur dioxide.

NR 409.06(3)(b) (b) Each ton of sulfur dioxide emitted in excess of the acid rain emissions limitations for sulfur dioxide shall constitute a separate violation.

NR 409.06(3)(c) (c) An affected unit is subject to the requirements under par. (a) as follows:

NR 409.06(3)(c)1. 1. Starting January 1, 2000, an affected unit under s. NR 409.01 (1) (a) 2.; or

NR 409.06(3)(c)2. 2. Starting on the later of January 1, 2000 or the deadline for monitor certification under 40 CFR part 75, an affected unit under s. NR 409.01 (1) (a) 3.

NR 409.06(3)(d) (d) Allowances shall be held in, deducted from or transferred among allowance tracking system accounts in accordance with the acid rain program.

NR 409.06(3)(e) (e) An allowance may not be deducted, in order to comply with the requirements under par. (a) 1., prior to the calendar year for which the allowance was allocated.

NR 409.06(3)(f) (f) An allowance allocated by the administrator under the acid rain program is a limited authorization to emit sulfur dioxide in accordance with the acid rain program. No provision of the acid rain program, the acid rain portion of an operation permit application, the acid rain portion of an operation permit or an exemption under s. NR 409.04, 409.05 or 409.055 and no provision of law may be construed to limit the authority of the United States to terminate or limit the authorization.

NR 409.06(3)(g) (g) An allowance allocated by the administrator under the acid rain program does not constitute a property right.

NR 409.06(4) (4) Nitrogen oxides requirements. The owners and operators of the source and each affected unit at the source shall comply with the applicable acid rain emissions limitation for nitrogen oxides.

NR 409.06(5) (5) Excess emissions requirements.

NR 409.06(5)(a) (a) The designated representative of an affected unit that has excess emissions in any calendar year shall submit a proposed offset plan to the administrator, as required under 40 CFR part 77, and submit a copy to the department.

NR 409.06(5)(b) (b) If one or more affected units governed by an approved NOx averaging plan under s. NR 409.065 (7) fail, after applying s. NR 409.065 (7) (d) 2. a., to meet their respective alternative contemporaneous emission limitations or annual heat input limits, then excess emissions of nitrogen oxides occur during the year at each unit. The sum of the excess emissions of nitrogen oxides of these units shall equal the amount determined under s. NR 409.065 (8) (b). The owners and operators of these units shall pay an excess emissions penalty based on the sum of the excess emissions of nitrogen oxides of the units.

NR 409.06(5)(c) (c) The owners and operators of an affected unit that has excess emissions in any calendar year shall:

NR 409.06(5)(c)1. 1. Pay to the administrator without demand the penalty required, and pay to the administrator upon demand the interest on that penalty, as required by 40 CFR part 77; and

NR 409.06(5)(c)2. 2. Comply with the terms of an approved offset plan, as required by 40 CFR part 77.

NR 409.06(6) (6) Recordkeeping and reporting requirements.

NR 409.06(6)(a) (a) Unless otherwise provided, the owners and operators of the source and each affected unit at the source shall keep on site at the source each of the following documents for a period of 5 years from the date the document is created. This period may be extended for cause, at any time prior to the end of 5 years, in writing by the administrator or department.

NR 409.06(6)(a)1. 1. The certificate of representation for the designated representative for the source and each affected unit at the source and all documents that demonstrate the truth of the statements in the certificate of representation, in accordance with 40 CFR 72.24; provided that the certificate and documents shall be retained on site at the source beyond the 5-year period until the documents are superseded because of the submission of a new certificate of representation changing the designated representative.

NR 409.06(6)(a)2. 2. All emissions monitoring information, in accordance with 40 CFR part 75; provided that to the extent that 40 CFR part 75 provides for a 3-year period for recordkeeping, the 3-year period shall apply.

NR 409.06(6)(a)3. 3. Copies of all reports, compliance certifications, and other submissions and all records made or required under the acid rain program.

NR 409.06(6)(a)4. 4. Copies of all documents used to complete an acid rain portion of an operation permit application and any other submission under the acid rain program or to demonstrate compliance with the requirements of this chapter and the acid rain program.

NR 409.06(6)(b) (b) The designated representative of an affected source and each affected unit at the source shall submit the reports and compliance certifications required under the acid rain program, including those under s. NR 409.13 and 40 CFR part 75.

NR 409.06(7) (7) Liability.

NR 409.06(7)(a) (a) Any person who knowingly violates any requirement or prohibition of the acid rain program, a complete acid rain portion of an operation permit application, an acid rain portion of an operation permit or an exemption under s. NR 409.04, 409.05 or 409.055, shall be subject to enforcement by the department pursuant to ch. NR 494 and ss. 285.83 and 285.87, Stats.

NR 409.06(7)(b) (b) Any person who knowingly makes a false, material statement in any record, submission or report under the acid rain program shall be subject to criminal enforcement by the department pursuant to ch. NR 494 and ss. 285.83 and 285.87, Stats.

NR 409.06(7)(c) (c) No permit revision may excuse any violation of the requirements of this chapter and the acid rain program that occurs prior to the date that the revision takes effect.

NR 409.06(7)(d) (d) Each affected source and each affected unit shall meet the requirements of this chapter and the acid rain program.

NR 409.06(7)(e) (e) Any provision of the acid rain program that applies to an affected source, including a provision applicable to the designated representative of an affected source, shall also apply to the owners and operators of the source and of the affected units at the source.

NR 409.06(7)(f) (f) Any provision of the acid rain program that applies to an affected unit, including a provision applicable to the designated representative of an affected unit, shall also apply to the owners and operators of the unit. Except as provided under s. NR 409.09 (2), 40 CFR 72.41, 72.42, 72.43, 74.47 and 76.11, and except with regard to the requirements applicable to units with a common stack under 40 CFR part 75, including 40 CFR 75.16, 75.17 and 75.18, the owners and operators and the designated representative of one affected unit are not liable for any violation by any other affected unit of which they are not owners or operators or the designated representative and that is located at a source of which they are not owners or operators or the designated representative.

NR 409.06(7)(g) (g) Each violation of a provision of this chapter and 40 CFR parts 72, 73, 75, 77 and 78 and regulations implementing sections 407 and 410 of the act (42 USC 7651f and 7651i) by an affected source or affected unit, or by an owner or operator or designated representative of the source or unit, shall be a separate violation.

NR 409.06(8) (8) Effect on other authorities. No provision of the acid rain program, an acid rain portion of an operation permit application, an acid rain portion of an operation permit or an exemption under s. NR 409.04, 409.05 or 409.055 may be construed as doing any of the following:

NR 409.06(8)(a) (a) Except as expressly provided in title IV of the act (42 USC 7651 to 7651o), exempting or excluding the owners and operators and, to the extent applicable, the designated representative of an affected source or affected unit from compliance with any other provision of the act, including the provisions of title I of the act relating to applicable national ambient air quality standards or state implementation plans.

NR 409.06(8)(b) (b) Limiting the number of allowances a unit can hold; provided, that the number of allowances held by the unit may not affect the source’s obligation to comply with any other provisions of the act.

NR 409.06(8)(c) (c) Requiring a change of any kind in any state law regulating electric utility rates and charges, affecting any state law regarding the state regulation, or limiting the state regulation, including any prudence review requirements under state law.

NR 409.06(8)(d) (d) Modifying the federal power act (16 USC 791a to 828c) or affecting the authority of the federal energy regulatory commission under the federal power act.

NR 409.06(8)(e) (e) Interfering with or impairing any program for competitive bidding for power supply in a state in which the program is established.

NR 409.06 History History: Cr. Register, April, 1995, No. 472, eff. 5-1-95; am. (8) (d), Register, December, 1995, No. 480, eff. 1-1-96; am. (8) (intro.), (d), Register, December, 1996. No. 492, eff. 1-1-97; renum. (5) (b) to be (5) (c), am. (2) (a), (b), (c), (3) (f), (6) (a) 2., (7) (a), (b), (f) and (8) (intro.) and cr. (4) and (5) (b), Register, November, 1999, No. 527, eff. 12-1-99.