Chapter NR 460

NR 460.05(4)(c)6. 6. To satisfy the requirements of this section to develop a startup, shutdown and malfunction plan, the owner or operator may use the affected source’s standard operating procedures manual, or an occupational safety and health administration or other plan, provided the alternative plans meet all the requirements of this section and are made available for inspection or submitted when requested by the department.

NR 460.05(4)(c)7. 7. Based on the results of a determination made under par. (a) 1., the department may require that an owner or operator of an affected source make changes to the startup, shutdown and malfunction plan for that source. The department shall require appropriate revisions to a startup, shutdown and malfunction plan, if the department finds that the plan does any of the following:

NR 460.05(4)(c)7.a. a. Does not address a startup, shutdown or malfunction event that has occurred.

NR 460.05(4)(c)7.b. b. Fails to provide for the operation of the source, including associated air pollution control and monitoring equipment, during a startup, shutdown or malfunction event in a manner consistent with the general duty to minimize emissions established by par. (a) 1.

NR 460.05(4)(c)7.c. c. Does not provide adequate procedures for correcting malfunctioning process and air pollution control and monitoring equipment as quickly as practicable.

NR 460.05(4)(c)7.d. d. Includes an event that does not meet the definition of startup, shutdown or malfunction listed in s. NR 460.02 (37r), (36) and (24c), respectively.

NR 460.05(4)(c)8. 8. The owner or operator may periodically revise the startup, shutdown and malfunction plan for the affected source as necessary to satisfy the requirements of 40 CFR part 63 or to reflect changes in equipment or procedures at the affected source. Unless the department provides otherwise, the owner or operator may make the revisions to the startup, shutdown and malfunction plan without prior approval by the administrator or the department. However, each revision to a startup, shutdown and malfunction plan shall be reported in the semiannual report required by s. NR 460.09 (4) (e). If the startup, shutdown and malfunction plan fails to address or inadequately addresses an event that meets the characteristics of a malfunction but was not included in the startup, shutdown and malfunction plan at the time the owner or operator developed the plan, the owner or operator shall revise the startup, shutdown and malfunction plan within 45 days after the event to include detailed procedures for operating and maintaining the source during similar malfunction events and a program of corrective action for similar malfunctions of process or air pollution control and monitoring equipment. In the event that the owner or operator makes any revision to the startup, shutdown and malfunction plan which alters the scope of the activities at the source which are deemed to be a startup, shutdown or malfunction, or otherwise modifies the applicability of any emission limit, work practice requirement, or other requirement in a standard established under 40 CFR part 63, the revised plan may not take effect until after the owner or operator has provided a written notice describing the revision to the department.

NR 460.05(4)(c)9. 9. The title V permit for an affected source shall require that the owner or operator develop a startup, shutdown and malfunction plan which conforms to the provisions of this chapter, but may do so by citing the relevant chapter or the relevant parts of this subsection. However, any revisions made to the startup, shutdown and malfunction plan in accordance with the procedures established by this chapter may not be deemed to constitute permit revisions under ch. NR 406 or 407 and the elements of the startup, shutdown and malfunction plan may not be considered an applicable requirement as defined in ss. NR 406.02 and 407.02. Moreover, none of the procedures specified by the startup, shutdown and malfunction plan for an affected source shall be deemed to fall within the permit shield provision in section 504 (f) of the Act (42 USC 7661c (f)).

NR 460.05(5) (5) Compliance with nonopacity emission standards. The nonopacity emission standards in 40 CFR part 63 or in chs. NR 460 to 469 shall apply at all times except during periods of startup, shutdown and malfunction, and as otherwise specified in an applicable subpart of 40 CFR part 63 or in an applicable provision of chs. NR 460 to 469. If a startup, shutdown or malfunction of one portion of an affected source does not affect the ability of particular emission points within other portions of the affected source to comply with the nonopacity emission standards set forth in this chapter, then those emission points shall still be required to comply with the nonopacity emission standards in 40 CFR part 63 or in chs. NR 460 to 469.

NR 460.05(6) (6) Compliance with opacity and visible emission standards.

NR 460.05(6)(a) (a) Applicability. The opacity and visible emission standards in 40 CFR part 63 and in chs. NR 460 to 469 shall apply at all times except during periods of startup, shutdown and malfunction, and as otherwise specified in an applicable subpart of 40 CFR part 63 or in an applicable provision of chs. NR 460 to 469. If a startup, shutdown or malfunction of one portion of an affected source does not affect the ability of particular emission points within other portions of the affected source to comply with the opacity and visible emission standards in 40 CFR part 63 or in chs. NR 460 to 469, then those emission points shall still be required to comply with the opacity and visible emission standards in 40 CFR part 63 or in chs. NR 460 to 469.

NR 460.05(6)(b) (b) Methods for determining compliance.

NR 460.05(6)(b)1. 1.

NR 460.05(6)(b)1.a. a. Whenever a continuous opacity monitoring system (COMS) is required to be installed to determine compliance with numerical opacity emission standards in 40 CFR part 63 and in chs. NR 460 to 469, compliance with opacity emission standards in 40 CFR part 63 and in chs. NR 460 to 469 shall be determined by using the results from the COMS.

NR 460.05(6)(b)1.b. b. Whenever an opacity emission test method is not specified, compliance with opacity emission standards in 40 CFR part 63 and in chs. NR 460 to 469 shall be determined by conducting observations in accordance with Method 9 in Appendix A of 40 CFR part 60, incorporated by reference in s. NR 484.04 (13), or the method specified in par. (f) 2.

NR 460.05(6)(b)1.c. c. Whenever a visible emission test method is not specified, compliance with visible emission standards in 40 CFR part 63 and in chs. NR 460 to 469 shall be determined by conducting observations in accordance with Method 22 in Appendix A of 40 CFR part 60, incorporated by reference in s. NR 484.04 (13).

NR 460.05(6)(b)2. 2. If an affected source undergoes opacity or visible emission testing at startup to obtain an operation permit under ch. NR 407, the results of the testing may be used to demonstrate compliance with a relevant standard if all of the following occur:

NR 460.05(6)(b)2.a. a. The opacity or visible emission test was conducted within a reasonable amount of time before a performance test is required to be conducted under the relevant standard.

NR 460.05(6)(b)2.b. b. The opacity or visible emission test was conducted under representative operating conditions for the source.

NR 460.05(6)(b)2.c. c. The opacity or visible emission test was conducted and the resulting data were reduced using EPA-approved test methods and procedures, as specified in s. NR 460.06 (4).

NR 460.05(6)(b)2.d. d. The opacity or visible emission test was appropriately quality-assured, as specified under s. NR 460.06 (2).

NR 460.05(6)(c) (c) Notification of opacity or visible emission observations. The owner or operator of an affected source shall notify the department in writing of the anticipated date for conducting opacity or visible emission observations in accordance with s. NR 460.08 (6), if the observations are required for the source by a relevant standard.

NR 460.05(6)(d) (d) Conduct of opacity or visible emission observations. When a relevant standard under 40 CFR part 63 includes an opacity or visible emission standard, the owner or operator of an affected source shall comply with the following:

NR 460.05(6)(d)1. 1. For the purpose of demonstrating initial compliance, opacity or visible emission observations shall be conducted concurrently with the initial performance test required in s. NR 460.06 unless one of the following conditions applies:

NR 460.05(6)(d)1.a. a. If no performance test under s. NR 460.06 is required, opacity or visible emission observations shall be conducted within 60 days after achieving the maximum production rate at which a new or reconstructed source will be operated, but not later than 120 days after initial startup of the source, or within 120 days after the effective date of the relevant standard in the case of new MACT sources that start up before the standard’s effective date. If no performance test under s. NR 460.06 is required, opacity or visible emission observations shall be conducted within 120 days after the compliance date for an existing or modified source.

NR 460.05(6)(d)1.b. b. If visibility or other conditions prevent the opacity or visible emission observations from being conducted concurrently with the initial performance test required under s. NR 460.06, or within the time period specified in subd. 1. a., the source’s owner or operator shall reschedule the opacity or visible emission observations as soon after the initial performance test, or time period, as possible, but not later than 30 days thereafter, and shall advise the department of the rescheduled date. The rescheduled opacity or visible emission observations shall be conducted, to the extent possible, under the same operating conditions that existed during the initial performance test conducted under s. NR 460.06. The visible emissions observer shall determine whether visibility or other conditions prevent the opacity or visible emission observations from being made concurrently with the initial performance test in accordance with procedures contained in Method 9 or Method 22 in Appendix A of 40 CFR part 60, incorporated by reference in s. NR 484.04 (13).

NR 460.05(6)(d)2. 2. For the purpose of demonstrating initial compliance, the minimum total time of opacity observations shall be 3 hours, 30 6-minute averages, for the performance test or other required set of observations, including fugitive-type emission sources subject only to an opacity emission standard.

NR 460.05(6)(d)3. 3. The owner or operator of an affected source to which an opacity or visible emission standard in 40 CFR part 63 applies shall conduct opacity or visible emission observations in accordance with the provisions of this section, record the results of the evaluation of emissions, and report to the department the opacity or visible emission results in accordance with the provisions of s. NR 460.09 (4).

NR 460.05(6)(d)4. 4. Opacity readings of portions of plumes that contain condensed, uncombined water vapor may not be used for purposes of determining compliance with opacity emission standards.

NR 460.05(6)(e) (e) Availability of records. The owner or operator of an affected source shall make available, upon request by the department, records that the department deems necessary to determine the conditions under which the visual observations were made and shall provide evidence indicating proof of current visible emission observer certification.

NR 460.05(6)(f) (f) Use of a continuous opacity monitoring system.

NR 460.05(6)(f)1. 1. The owner or operator of an affected source required to use a continuous opacity monitoring system (COMS) shall record the monitoring data produced during a performance test required under s. NR 460.06 and shall furnish the department a written report of the monitoring results in accordance with the provisions of s. NR 460.09 (5) (d).

NR 460.05(6)(f)2. 2. Whenever an opacity emission test method has not been specified in an applicable subpart of 40 CFR part 63 or in an applicable provision of chs. NR 460 to 469, or an owner or operator of an affected source is required to conduct observations according to Method 9 of Appendix A of 40 CFR part 60, incorporated by reference in s. NR 484.04 (13), the owner or operator may submit, for compliance purposes, COMS data results produced during any performance test required under s. NR 460.06 in lieu of Method 9 data. If the owner or operator elects to submit COMS data for compliance with the opacity emission standard, he or she shall notify the department of that decision, in writing, simultaneously with the notification under s. NR 460.06 (2) of the date the performance test is scheduled to begin. Once the owner or operator of an affected source has notified the department to that effect, the COMS data results will be used to determine opacity compliance during subsequent performance tests required under s. NR 460.06, unless the owner or operator notifies the department in writing to the contrary not later than with the notification under s. NR 460.06 (2) of the date the subsequent performance test is scheduled to begin.

NR 460.05(6)(f)3. 3. For the purposes of determining compliance with the opacity emission standard during a performance test required under s. NR 460.06 using COMS data, the COMS data shall be reduced to 6-minute averages over the duration of the mass emission performance test.

NR 460.05(6)(f)4. 4. The owner or operator of an affected source using a COMS for compliance purposes is responsible for demonstrating the performance evaluation requirements of s. NR 460.07 (5) have been met, the COMS has been properly maintained, operated and data quality-assured, as specified in s. NR 460.07 (3) and (4), and the resulting data have not been altered in any way.

NR 460.05(6)(f)5. 5. Except as provided in subd. 2., the results of continuous monitoring by a COMS that indicate that the opacity at the time visual observations were made was not in excess of the emission standard are probative but not conclusive evidence of the actual opacity of an emission, provided that the affected source proves that, at the time of the alleged violation, the instrument used was properly maintained, as specified in s. NR 460.07 (3), and met Performance Specification 1 in Appendix B of 40 CFR part 60, incorporated by reference in s. NR 484.04 (21), and that the resulting data have not been altered in any way.

NR 460.05(6)(g) (g) Finding of compliance. The department shall make a finding concerning an affected source’s compliance with an opacity or visible emission standard upon obtaining all the compliance information required by the relevant standard, including the written reports of the results of the performance tests required by s. NR 460.06, the results of Method 9 of Appendix A of 40 CFR part 60, incorporated by reference in s. NR 484.04 (13), or another required opacity or visible emission test method, the observer certification required by par. (e), and the continuous opacity monitoring system results, whichever are applicable, and any information available to the department needed to determine whether proper operation and maintenance practices are being used.

NR 460.05(7) (7) Extension of compliance with emission standards.

NR 460.05(7)(a) (a) Until a compliance date extension has been granted by the administrator or the department under this subsection or 40 CFR 63.6 (i), the owner or operator of an affected source subject to the requirements of this section shall comply with all applicable requirements of 40 CFR part 63 and chs. NR 460 to 469.

NR 460.05(7)(b) (b) Pursuant to section 112 (i) (6) of the act (42 USC 7412 (i) (6)), if the owner or operator of an existing source has installed BACT, as defined in section 169 (3) of the act (42 USC 7479 (3)), or technology required to meet a LAER, as defined in section 171 of the act (42 USC 7501), prior to the promulgation of an emission standard in 40 CFR part 63 applicable to the source and the same pollutant or stream of pollutants controlled pursuant to the BACT or LAER installation, the department may grant the owner or operator an extension of the compliance date with the emission standard that will apply until the date 5 years after the date on which the installation was achieved, as determined by the department.

NR 460.05 Note Note: BACT and LAER are more broadly defined under s. 285.01 (12) and (23), Stats.

NR 460.05(7)(c) (c)

NR 460.05(7)(c)1. 1.

NR 460.05(7)(c)1.a. a. The owner or operator of an existing source who is unable to comply with a relevant standard established under 40 CFR part 63 pursuant to section 112 (d) of the act (42 USC 7412 (d)) may request that the department grant an extension allowing the source up to one additional year to comply with the standard, if the additional period is necessary for the installation of controls. The owner or operator of an affected source who has requested a compliance date extension under this subsection or 40 CFR 63.6 (i) and who is otherwise required to obtain a part 70 permit shall apply for the permit or apply to have the source’s part 70 permit revised to incorporate the conditions of the compliance date extension. The conditions of a compliance date extension granted under this subsection will be incorporated into the affected source’s part 70 permit.

NR 460.05 Note Note: Under 40 CFR 63.6 (i) (4) (i) (A), the administrator may provide an additional extension of up to 3 years for mining waste operations, if the 1-year extension of the compliance date is insufficient to dry and cover mining waste in order to reduce emissions of any hazardous air pollutant.

NR 460.05(7)(c)1.b. b. Any request under this subsection for an extension of compliance with a relevant standard shall be submitted in writing to the department no later than 120 days prior to the affected source’s compliance date, as specified in subs. (2) and (3), except as provided for in subd. 1. c. Non-frivolous requests submitted under this subsection will stay the applicability of the rule as to the emission points in question until the time the request is granted or denied. A denial will be effective as of the date of denial. Emission standards established under 40 CFR part 63 may specify alternative dates for the submittal of requests for an extension of compliance if alternatives are appropriate for the source categories affected by those standards.

NR 460.05(7)(c)1.c. c. An owner or operator may submit a compliance extension request after the date specified in subd. 1. b. provided the need for the compliance extension arose after that date, and before the otherwise applicable compliance date, and the need arose due to circumstances beyond reasonable control of the owner or operator. This request shall include, in addition to the information required in par. (e) 1., a statement of the reasons additional time is needed and the date when the owner or operator first learned of the problems. Non-frivolous requests submitted under this subsection will stay the applicability of the rule as to the emission points in question until the time the request is granted or denied. A denial will be effective as of the original compliance date.

NR 460.05(7)(c)2. 2. The owner or operator of an existing source unable to comply with a relevant standard established under 40 CFR part 63 pursuant to section 112 (f) of the Act (42 USC 7412 (f)) may request that the department grant an extension allowing the source up to 2 years after the standard’s effective date to comply with the standard. The department may grant an extension if it finds that the additional period is necessary for the installation of controls and that steps will be taken during the period of the extension to assure that the health of persons will be protected from imminent endangerment. Any request for an extension of compliance with a relevant standard under this subsection shall be submitted in writing to the department not later than 90 calendar days after the effective date of the relevant standard.

NR 460.05(7)(d) (d) The owner or operator of an existing source that has installed BACT or technology required to meet LAER, as specified in par. (b), prior to the promulgation of a relevant emission standard in 40 CFR part 63 may request that the department grant an extension allowing the source 5 years from the date on which the installation was achieved, as determined by the department, to comply with the standard. Any request for an extension of the compliance date for a relevant standard under this subsection shall be submitted in writing to the department not later than 120 days after the promulgation date of the standard. The department may grant an extension if it finds that the installation of BACT or technology to meet LAER controls the same pollutant or stream of pollutants that would be controlled at that source by the relevant emission standard.

NR 460.05(7)(e) (e) The request for a compliance date extension under par. (c) shall include all of the following information:

NR 460.05(7)(e)1. 1. A description of the controls to be installed to comply with the standard.

NR 460.05(7)(e)2. 2. A compliance schedule, including the date by which each step toward compliance will be reached. At a minimum, the list of dates shall include all of the following:

NR 460.05(7)(e)2.a. a. The date by which on-site construction, installation of emission control equipment or a process change is planned to be initiated.

NR 460.05(7)(e)2.b. b. The date by which final compliance is to be achieved.

NR 460.05(7)(em) (em) The request for a compliance extension under par. (d) shall include all information needed to demonstrate to the department’s satisfaction that the installation of BACT or technology to meet LAER controls the same pollutant or stream of pollutants that would be controlled at that source by the relevant emission standard.

NR 460.05(7)(f) (f) Advice on requesting an extension of a compliance date may be obtained from the department.

NR 460.05(7)(g) (g) Based on the information provided in any request made under pars. (c) to (em), or other information, the department may grant an extension of the compliance date for an emission standard, as specified in pars. (c) and (d).

NR 460.05(7)(h) (h) An extension shall be in writing and shall do all of the following:

NR 460.05(7)(h)1. 1. Identify each affected source covered by the extension.

NR 460.05(7)(h)2. 2. Specify the termination date of the extension.

NR 460.05(7)(h)3. 3. Specify the dates by which steps toward compliance are to be taken, if appropriate.

NR 460.05(7)(h)4. 4. Specify other applicable requirements to which the compliance extension applies, such as performance tests.

NR 460.05(7)(h)5. 5. Specify any additional conditions that the department deems necessary to assure any of the following:

NR 460.05(7)(h)5.a. a. Under par. (c), the installation of the necessary controls and protection of human health during the extension period.

NR 460.05(7)(h)5.b. b. Under par. (d), the proper operation and maintenance of the installed controls during the extension period.

NR 460.05(7)(i) (i) The owner or operator of an existing source that has been granted a compliance date extension under par. (g) may be required to submit to the department progress reports indicating whether the steps toward compliance outlined in the compliance schedule have been reached. The contents of the progress reports and the dates by which they shall be submitted shall be specified in the written compliance date extension granted under par. (h).

NR 460.05(7)(j) (j)

NR 460.05(7)(j)1. 1. The department shall notify the owner or operator in writing of approval or intention to deny approval of a request for an extension of compliance within 30 calendar days after receipt of sufficient information to evaluate a request submitted under par. (c) 1. or (d). The department shall notify the owner or operator in writing of the status of the application, that is, whether the application contains sufficient information to make a determination within 30 calendar days after receipt of the original application and within 30 calendar days after receipt of any supplementary information that is submitted. The 30-day approval or denial period shall begin after the owner or operator has been notified in writing that the application is complete.

NR 460.05(7)(j)2. 2. When notifying the owner or operator that an application is not complete, the department shall specify the information needed to complete the application and provide notice of opportunity for the applicant to present, in writing, within 30 calendar days after notification of the incomplete application, additional information or arguments to the department to enable further action on the application.

NR 460.05(7)(j)3. 3. Before denying any request for a compliance date extension, the department shall notify the owner or operator in writing of the department’s intention to issue the denial, together with all of the following:

NR 460.05(7)(j)3.a. a. Notice of the information and findings on which the intended denial is based.

NR 460.05(7)(j)3.b. b. Notice of opportunity for the owner or operator to present in writing, within 15 calendar days after notification of the intended denial, additional information or arguments to the department before further action on the request.

NR 460.05(7)(j)4. 4. The department’s final determination to deny any request for an extension shall be in writing and shall set forth the specific grounds on which the denial is based. The final determination shall be made within 30 calendar days after presentation of additional information or argument, if the application is complete, or within 30 calendar days after the final date specified for the presentation if no presentation is made.

NR 460.05(7)(k) (k)

NR 460.05(7)(k)1. 1. The department shall notify the owner or operator in writing of approval or intention to deny approval of a request for a compliance date extension within 30 calendar days after receipt of sufficient information to evaluate a request submitted under par. (c) 2. The 30-day approval or denial period will begin after the owner or operator has been notified in writing that the application is complete. The department shall notify the owner or operator in writing of the status of the application, that is, whether the application contains sufficient information to make a determination, within 15 calendar days after receipt of the original application and within 15 calendar days after receipt of any supplementary information that is submitted.

NR 460.05(7)(k)2. 2. When notifying the owner or operator that an application is not complete, the department shall specify the information needed to complete the application and provide notice of opportunity for the applicant to present, in writing, within 15 calendar days after notification of the incomplete application, additional information or arguments to the department to enable further action on the application.

NR 460.05(7)(k)3. 3. Before denying any request for a compliance date extension, the department shall notify the owner or operator in writing of the department’s intention to issue the denial, together with all of the following:

NR 460.05(7)(k)3.a. a. Notice of the information and findings on which the intended denial is based.

NR 460.05(7)(k)3.b. b. Notice of opportunity for the owner or operator to present in writing, within 15 calendar days after notification of the intended denial, additional information or arguments to the department before further action on the request.

NR 460.05(7)(k)4. 4. A final determination to deny any request for an extension shall be in writing and shall set forth the specific grounds on which the denial is based. The final determination shall be made within 30 calendar days after presentation of additional information or argument, if the application is complete, or within 30 calendar days after the final date specified for the presentation if no presentation is made.

NR 460.05(7)(L) (L) The department may terminate an extension of compliance at an earlier date than specified if any specification under par. (h) 3. or 4. is not met.

NR 460.05(7)(L)1. 1. Upon making a determination to terminate, the department shall notify, in writing, the owner or operator of the department’s determination to terminate, together with both of the following:

NR 460.05(7)(L)1.a. a. Notice of the reason for termination.

NR 460.05(7)(L)1.b. b. Notice of opportunity for the owner or operator to present in writing, within 15 calendar days after notification of the determination to terminate, additional information or arguments to the department before further action on the termination.

NR 460.05(7)(L)2. 2. A termination of an extension of compliance shall be in writing and shall set forth the specific grounds on which the termination is based. The termination shall be made within 30 calendar days after presentation of additional information or arguments, or within 30 calendar days after the final date specified for the presentation if no presentation is made.

NR 460.05 History History: Cr. Register, March, 1997, No. 495, eff. 4-1-97; corrections in (4) (c) 4., (6) (b) 1. b. and c., (d) 1. b., (f) 2., 5., and (g) made under s. 13.93 (2m) (b) 7., Stats., Register March 2002 No. 555; CR 05-039: am. (1) (a) (intro.), (2) (a), (c) 1., (d), (f), (3) (b), (4) (a) 1., 2., (c) 1., 3. to 6., 7. (intro.), b., c., and 8., (5), (6) (a), (7) (c) 1. b., 2., (j) 1. and (L), r. and recr. (1) (a) 1. and 2., renum. (3) (c) 1., (7) (e) 2. b. and d. to be (3) (c), (7) (e) 2. a. and b. and am. (3) (c) and (7) (e) 2. a., r. (3) (c) 2., (4) (b), (7) (e) 2. a. and c., 3. and 4., cr. (3m), (4) (c) 7. d. and 9., (7) (c) 1. c., (L) 1. and 2., Register February 2006 No. 602, eff. 3-1-06; CR 07-105: am. (4) (a) 2., (c) 1. (intro.), 3. to 5., 9., r. (4) (c) 2. Register December 2008 No. 636, eff. 1-1-09.

NR 460.06 NR 460.06 Performance testing requirements.

NR 460.06(1) (1) Applicability and performance test dates.

NR 460.06(1)(a) (a) Unless otherwise specified, this section applies to the owner or operator of an affected source required to do performance testing, or another form of compliance demonstration, under a relevant standard.