Chapter NR 405

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)

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.

NR 405.16(3)(b) (b) If the emissions unit is an existing electric utility steam generating unit, before beginning actual construction, provide a copy of the information in par. (a) to the department. Nothing in this paragraph shall be construed to require the owner or operator of the unit to obtain any determination from the department before beginning actual construction.

NR 405.16(3)(c) (c) If the owner or operator excludes emissions from the calculation of projected actual emissions under s. NR 405.02 (25f) (b) 2. and the difference between projected actual emissions and baseline actual emissions exceeds the level that is considered to be significant for the air contaminant prior to the exclusion of emissions from the calculation of projected actual emissions under s. NR 405.02 (25f) (b) 2., before beginning actual construction, provide a copy of the information in par. (a) to the department. Nothing in this paragraph shall be construed to require the owner or operator of the unit to obtain any determination from the department before beginning actual construction.

NR 405.16(3)(d) (d) Monitor the emissions of any regulated NSR air contaminant that could increase as a result of the project and that is emitted by any emissions unit identified in par. (a) 2. and calculate and maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of 5 years following resumption of regular operations after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity or potential to emit of that regulated NSR air contaminant at the emissions unit.

NR 405.16(3)(e) (e) If the unit is an existing electric utility steam generating unit, submit a report to the department within 60 days after the end of each year during which records must be generated under par. (d) setting out the unit’s annual emissions during the calendar year that preceded submission of the report.

NR 405.16(3)(f) (f) If the unit is an existing unit other than an electric utility steam generating unit, submit a report to the department if the annual emissions, in tons per year, from the project identified in par. (a), exceed the baseline actual emissions, as documented and maintained pursuant to par. (d) by a significant amount, as defined in s. NR 405.02 (27), for that regulated NSR air contaminant, and if the emissions differ from the preconstruction projection that was provided to the department pursuant to par. (c). The report shall be submitted to the department within 60 days after the end of the year. The report shall contain all of the following:

NR 405.16(3)(f)1. 1. The name, address and telephone number of the major stationary source.

NR 405.16(3)(f)2. 2. The annual emissions as calculated pursuant to par. (a) 3.

NR 405.16(3)(f)3. 3. Any other information that the owner or operator wishes to include in the report, e.g., an explanation as to why the emissions differ from the preconstruction projection.

NR 405.16(4) (4) The owner or operator of the source shall make the information required to be documented and maintained pursuant to sub. (3) available for inspection, upon request by the department or the general public.

NR 405.16 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; CR 03-118: cr. (3) and (4), Register June 2007 No. 618, eff. 7-1-07.

NR 405.17 NR 405.17 Innovative control technology.

NR 405.17(1) (1) An owner or operator of a proposed major stationary source or major modification may request the department to approve a system of innovative control technology.

NR 405.17(2) (2) The department may, with the consent of the governor of any other affected state, determine that the major source or major modification may employ a system of innovative control technology if all of the following conditions are met:

NR 405.17(2)(a) (a) The proposed control system would not cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation or function.

NR 405.17(2)(b) (b) The owner or operator agrees to achieve a level of continuous emissions reduction equivalent to that which would have been required under s. NR 405.08 (2) no later than 3 years from the time of start-up or 6 years from the date of permit issuance.

NR 405.17(2)(c) (c) The source or modification would meet the requirements equivalent to those in ss. NR 405.08 and 405.09 based on the emissions rate that the stationary source employing the system of innovative control technology would be required to meet on the date specified in par. (b).

NR 405.17(2)(d) (d) The major source or major modification would not before the date specified do any of the following:

NR 405.17(2)(d)1. 1. Cause or contribute to any violation of an applicable national ambient air quality standard.

NR 405.17(2)(d)2. 2. Impact any Class I area.

NR 405.17(2)(d)3. 3. Impact any area where an applicable increment is known to be violated.

NR 405.17(2)(e) (e) All other applicable requirements including those for public participation have been met.

NR 405.17(3) (3) The department shall withdraw any approval to employ a system of innovative control technology made under this section, if any of the following occurs:

NR 405.17(3)(a) (a) The proposed system fails by the specified date in sub. (2) (b) to achieve the required continuous emissions reduction rate.

NR 405.17(3)(b) (b) The proposed system fails before the specified date in sub. (2) (b) so as to contribute to an unreasonable risk to public health, welfare, or safety.

NR 405.17(3)(c) (c) The department decides at any time that the proposed system is unlikely to achieve the required level of control or to protect the public health, welfare or safety.

NR 405.17(4) (4) If a major source or major modification fails to meet the required level of continuous emissions reduction within the specified time period, or if the approval is withdrawn in accordance with sub. (3), the department may allow the source of modification up to an additional 3 years to meet the requirement for the application of best available control technology through use of a demonstrated system of control.

NR 405.17 Note Note: The deadline for achieving the required continuous emissions reduction through innovative control technology in the federal regulations (not later than 4 years from the time of startup or 7 years from permit issuance) has been changed to no later than 3 years from time of startup or 6 years from the date of permit issuance in sub. (2) (b).

NR 405.17 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. (2) (intro.), (d) (intro.), (3) (intro.), Register, December, 1996, No. 492, eff. 1-1-97.

NR 405.18 NR 405.18 Plant-wide applicability limitations (PALs).

NR 405.18(1) (1) Applicability.

NR 405.18(1)(a) (a) This section applies to any existing major stationary source which wishes to operate under a PAL. The department may approve the use of a PAL for any existing major stationary source if the source and its application for a PAL meets all of the requirements in this section.

NR 405.18(1)(b) (b) Any physical change in or change in the method of operation of a major stationary source that maintains its total source-wide emissions below the PAL level, meets the requirements in this section and complies with the PAL permit:

NR 405.18(1)(b)1. 1. Is not a major modification for the PAL regulated air contaminant.

NR 405.18(1)(b)2. 2. Does not have to be approved under this chapter.

NR 405.18(1)(b)3. 3. Is not subject to the provisions in s. NR 405.16 (2).

NR 405.18(1)(c) (c) Except as provided under par. (b) 3., a major stationary source shall continue to comply with all applicable federal or state requirements, emission limitations and work practice requirements that were established prior to the effective date of the PAL.

NR 405.18(2) (2) Definitions. The following definitions apply to terms used in this subsection for the purpose of developing and implementing PALs consistent with this section.

NR 405.18(2)(a) (a) “Allowable emissions” has the meaning given in s. NR 405.02 (2), except as this definition is modified according to both of the following:

NR 405.18(2)(a)1. 1. The allowable emissions for any emissions unit shall be calculated considering any emission limitations that are enforceable as a practical matter on the emissions unit’s potential to emit.

NR 405.18(2)(a)2. 2. An emissions unit’s potential to emit shall be determined using the definition in s. NR 405.02 (25), except that the words “or enforceable as a practical matter” should be added after “federally enforceable”.

NR 405.18(2)(b) (b) “Major emissions unit” means either of the following:

NR 405.18(2)(b)1. 1. Any emissions unit that emits or has the potential to emit 100 tons per year or more of the PAL regulated air contaminant in an attainment area.

NR 405.18(2)(b)2. 2. Any emissions unit that emits or has the potential to emit the PAL regulated air contaminant in an amount that is equal to or greater than the major source threshold for the PAL regulated air contaminant as defined by the Act for nonattainment areas.

NR 405.18 Note Note: In accordance with the definition of major stationary source in section 182 (c) of the Act, an emissions unit would be a major emissions unit for VOC if the emissions unit is located in a serious ozone nonattainment area and it emits or has the potential to emit 50 or more tons of VOC per year.

NR 405.18(2)(c) (c) “PAL effective date” means the date of issuance of the PAL permit except that, in the case of an increased PAL, “PAL effective date” means the date any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL regulated air contaminant.

NR 405.18(2)(d) (d) “PAL effective period” means the period beginning with the PAL effective date and ending 10 years later.

NR 405.18(2)(e) (e) “PAL major modification” means, notwithstanding s. NR 405.02 (21) and (24), any physical change in or change in the method of operation of the PAL source that causes it to emit the PAL regulated air contaminant at a level equal to or greater than the PAL.

NR 405.18(2)(f) (f) “PAL permit” means the construction permit issued by the department that establishes a PAL for a major stationary source.

NR 405.18(2)(g) (g) “PAL regulated air contaminant” means the regulated NSR air contaminant for which a PAL is established at a major stationary source.

NR 405.18(2)(h) (h) “Significant emissions unit” means an emissions unit that emits or has the potential to emit a PAL regulated air contaminant in an amount that is equal to or greater than the significant level, as defined in s. NR 405.02 (27) or in the Act, whichever is lower, for that PAL regulated air contaminant, but less than the amount that would qualify the unit as a major emissions unit.

NR 405.18(2)(i) (i) “Small emissions unit” means an emissions unit that emits or has the potential to emit the PAL regulated air contaminant in an amount less than the significant level for that PAL regulated air contaminant, as defined in s. NR 405.02 (27) or in the Act, whichever is lower.

NR 405.18(3) (3) Permit application requirements. As part of a permit application requesting a PAL, the owner or operator of a major stationary source shall submit all of the following information to the department for approval:

NR 405.18(3)(a) (a) A list of all emissions units at the source designated as small, significant or major based on their potential to emit. In addition, the owner or operator of the source shall indicate which, if any, federal or state applicable requirements, emission limitations or work practices apply to each unit.

NR 405.18(3)(b) (b) Calculations of the baseline actual emissions with supporting documentation. Baseline actual emissions shall include emissions associated not only with operation of the unit, but also emissions associated with startups, shutdowns and malfunctions.

NR 405.18(3)(c) (c) The calculation procedures that the major stationary source owner or operator proposes to use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each month as required by sub. (13) (a).

NR 405.18(4) (4) General requirements for establishing PALs.

NR 405.18(4)(a) (a) The department may establish a PAL in a permit for a major stationary source if all of the following requirements are met:

NR 405.18(4)(a)1. 1. The PAL imposes an annual emission limitation in tons per year, that is enforceable as a practical matter, for the entire major stationary source. For each month during the PAL effective period after the first 12 months of establishing a PAL, the major stationary source owner or operator shall show that the sum of the monthly emissions from each emissions unit under the PAL for the previous 12 consecutive months is less than the PAL. For each month during the first 11 months from the PAL effective date, the major stationary source owner or operator shall show that the sum of the preceding monthly emissions from the PAL effective date for each emissions unit under the PAL is less than the PAL.