Chapter NR 408

NR 408.03(1) (1) No person may begin actual construction of a major source or major modification to which the requirements of this chapter apply unless the person has a permit which states that the stationary source or modification will meet the requirements of ss. NR 408.04 to 408.10.

NR 408.03(2) (2) The requirements of ss. NR 408.04 to 408.10 shall apply only to any new major source or major modification that is major for the pollutant, or the precursor of the pollutant, as applicable, for which an area is designated as nonattainment, or as an ozone transport region, as of the date the permit is issued, if the stationary source or modification would be constructed anywhere in the designated nonattainment area or ozone transport region.

NR 408.03(3) (3) The requirements of ss. NR 408.04 to 408.10 shall apply with respect to any air contaminant for which an applicable source is major and in the case of a modification, would result in a significant net emissions increase for that pollutant.

NR 408.03(4) (4) The requirements of ss. NR 408.04 to 408.10 applicable to new major sources or major modifications of PM10 shall also apply to each PM10 precursor for which the source is a major source, except that the requirements do not apply where the administrator determines that the sources of PM10 precursors do not significantly contribute to PM10 levels which exceed the PM10 ambient standards.

NR 408.03(5) (5) The requirements of ss. NR 408.04 to 408.10 applicable for new major sources or major modifications of VOC shall apply to nitrogen oxides emissions from new major sources or major modifications of nitrogen oxides, except that the requirements do not apply if the administrator determines, when the administrator approves a plan, plan revision or petition under provisions of section 182 (f) of the Act (42 USC 7511a(f)), that the statutory requirements of section 182 (f) do not apply.

NR 408.03(6) (6) For any major modification which results in a significant net emissions increase of VOCs in a serious or severe nonattainment area for ozone, if the source’s potential to emit is less than 100 tpy of VOCs, the requirements of ss. NR 408.04 to 408.10 will not apply with respect to the VOCs if the owner or operator of the source elects to offset the increase in VOC emissions by a greater reduction in emissions of VOCs from other operations, units or activities within the source, at an internal offset ratio of at least 1.3 to 1.

NR 408.03(7) (7) Notwithstanding the requirements for offsets under s. NR 408.06, emission offsets for an increase in the emissions of VOCs will not be required for a major modification which results in a significant increase in VOC emissions in an extreme nonattainment area for ozone if the modification consists of the installation of equipment required to comply with the applicable implementation plan, permit or provision under the act.

NR 408.03(8) (8) The provisions of this chapter do not apply to a source or modification that would be a major source or major modification only if fugitive emissions to the extent quantifiable are considered in calculating the potential to emit of the stationary source or modification and the source does not belong to any of the source categories contained in s. NR 408.02 (21) (e).

NR 408.03(9) (9) For attainment or unclassifiable areas within an ozone transport region, the permitting requirements of both ch. NR 405 and this chapter shall apply and where requirements conflict or overlap, the more stringent requirements shall prevail.

NR 408.03 History History: Cr. Register, May, 1993, No. 449, eff. 6-1-93; am. (5), Register, December, 1996, No. 492, eff. 1-1-97.

NR 408.04 NR 408.04 Control technology review.

NR 408.04(1) (1) A major source or major modification shall meet each applicable emission limitation under this chapter and each applicable emission standard or standard of performance under chs. NR 440 and 447 to 449 and subch. IV of ch. NR 446.

NR 408.04(2) (2) A new major source shall apply the lowest achievable emission rate for each pollutant subject to the provisions of this chapter that it would have the potential to emit in an amount which makes the source a major source. This provision applies to each new emissions unit at which emission increases would occur.

NR 408.04(3) (3) A major modification shall apply the lowest achievable emission rate for each pollutant subject to the requirements of this chapter for which it would result in a significant net emissions increase at the source. This requirement applies to each emissions unit at which a net emissions increase in the pollutant would occur as a result of a physical change or change in the method of operation in the unit.

NR 408.04(4) (4) For phased construction projects, the determination of the lowest achievable emission rate shall be reviewed and modified as appropriate at the latest reasonable time which occurs no more than 18 months prior to commencement of construction of each independent phase of the project. At the time of the review, the owner or operator of the affected stationary source may be required to demonstrate the adequacy of any previous determination of the lowest achievable emission rate for the source.

NR 408.04(5) (5) In the case of any major modification which results in a significant net emissions increase in VOC emissions in a serious or severe nonattainment area for ozone, if the modification occurs at a source which emits or has the potential to emit 100 tons or more of the VOCs per year, the requirements of sub. (3), concerning compliance with the lowest achievable emission rate, will not apply if the owner or operator of the source elects to offset the increase of emissions of the VOCs by a greater reduction in emissions of VOCs from other operations, units or pollutant emitting activities within the source at an internal offset ratio of at least 1.3 to 1.

NR 408.04(6) (6) In the case of any major modification which results in a significant net emissions increase in VOC emissions in a serious or severe nonattainment area for ozone, if the source’s potential to emit is less than 100 tpy of VOCs, the source shall be required to comply with BACT as a substitute for the LAER otherwise required under sub. (3).

NR 408.04(7) (7) The department shall, for each new major source and major modification, submit to the U.S. environmental protection agency, within 60 days of issuance of the construction permit, all information on the emissions prevention or control technology for the new major source or major modification.

NR 408.04 Note Note: The data submitted by the department will be included in the U.S. environmental protection agency’s RACT/BACT/LAER Clearinghouse.

NR 408.04 History History: Cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 01-081: am. (1) Register September 2004 No. 585, eff. 10-1-04; CR 07-036: am. (1) Register November 2008 No. 635, eff. 12-1-08.

NR 408.05 NR 408.05 Reasonable further progress.

NR 408.05(1) (1) By the time the proposed major source or major modification is to commence operation, sufficient offsetting emissions shall be in effect such that the total emissions from existing sources in the area, from new or modified sources which are not major sources and from the proposed source will be sufficiently less than total emissions from existing sources prior to the application for the permit to construct or modify so as to represent, when considered together with the plan provisions required under section 172 of the Act (42 USC 7502), reasonable further progress.

NR 408.05(2) (2) For the purposes of satisfying the requirements of sub. (1):

NR 408.05(2)(a) (a) The determination of total emissions at both the time prior to the application for a permit subject to the requirements of this chapter and the time the permitted source or modification would commence operation, shall be made in a manner consistent with the assumptions in the applicable state implementation plan approved by the administrator concerning baseline emissions for the demonstration of reasonable further progress and attainment of the national ambient air quality standards for the particular pollutant subject to review under this chapter.

NR 408.05(2)(b) (b) To demonstrate reasonable further progress a new or modified source subject to review under this chapter shall obtain offsets in an amount equal to or greater than the amount specified by the applicable offset ratio. If an offset ratio is not specified, the offset ratio shall be at least 1 to 1.

NR 408.05 History History: Cr. Register, May, 1993, No. 449, eff. 6-1-93; am. (1), Register, December, 1996, No. 492, eff. 1-1-97.

NR 408.06 NR 408.06 Emissions offsets.

NR 408.06(1) (1) To be eligible for use under this chapter, emissions offsets shall meet all of the following criteria:

NR 408.06(1)(a) (a) Except as provided in par. (cm), offsets shall be of the same air contaminant class, that is, volatile organic compounds, particulate matter, carbon monoxide, nitrogen oxides, sulfur dioxide, or lead.

NR 408.06(1)(b) (b) Offsets for particulate matter, carbon monoxide, nitrogen oxides, sulfur dioxide and lead shall be in a time frame compatible with the applicable air quality standard.

NR 408.06(1)(c) (c) Offsets for volatile organic compounds and nitrogen oxides, where applicable, shall be quantified on an annual basis. In addition, the source shall submit emission estimates in a time frame consistent with the air quality standard for ozone.

NR 408.06 Note Note: The time frame for the air quality standard for each pollutant is given in s. NR 404.04.

NR 408.06(1)(cm) (cm) PM2.5 emission increases may be offset by decreases in nitrogen oxides or sulfur dioxide emissions, that are otherwise creditable, at a ratio of 40 tpy of sulfur dioxide for each ton of direct PM2.5 emissions and 200 tpy of nitrogen oxides for each ton of direct PM2.5 emissions.

NR 408.06(1)(d) (d) Offsets shall result in a net air quality benefit.

NR 408.06 Note Note: The term “net air quality benefit” will be interpreted based on EPA’s December 4, 1986 Emission Trading Policy Statement, incorporated by reference in s. NR 484.06, until revised by EPA or until the term is defined by the department.

NR 408.06(1)(e) (e) The emission reductions used as offsets shall be generated after the date used as a baseline or shall be included in the baseline for the portion of the latest state implementation plan which relates to the nonattainment status of the area. Emission reductions occurring before August 7, 1977 may not be used as offsets.

NR 408.06(1)(f) (f) The assumptions used to calculate the offset shall be consistent with the assumptions used to develop the area’s implementation plan.

NR 408.06(1)(g) (g) Offsets shall be surplus, permanent, quantifiable and federally enforceable at the time of their use.

NR 408.06(2) (2) Prior to the issuance of a permit under this chapter, federally enforceable emissions offsets shall be obtained from the same source or other sources in the same nonattainment area, except that the emissions offsets may be obtained from a source in another nonattainment area if both of the following apply:

NR 408.06(2)(a) (a) The other area has an equal or higher nonattainment classification than the area in which the source is located.

NR 408.06(2)(b) (b) Emissions from the other area contribute to a violation of a national ambient air quality standard in the nonattainment area in which the proposed new or modified source would be constructed.

NR 408.06(3) (3) The total annual tonnage of emissions of any applicable air contaminant allowed from the proposed new source, or net emissions increase from the modification, shall be offset by an equal or greater reduction, as applicable, in the actual emissions of the air contaminant from the same or other sources.

NR 408.06(4) (4) In meeting the requirements of sub. (3) for ozone nonattainment areas classified under section 182 of the Act (42 USC 7511a), the ratio of total actual emission reductions of VOCs, and nitrogen oxides where applicable, to the net emissions increase for the same air contaminant class shall be as follows:

NR 408.06(4)(a) (a) In any rural transport or marginal nonattainment area for ozone: at least 1.1 to 1.

NR 408.06(4)(b) (b) In any moderate nonattainment area for ozone: at least 1.15 to 1.

NR 408.06(4)(c) (c) In any serious nonattainment area for ozone: at least 1.2 to 1.

NR 408.06(4)(d) (d) In any severe nonattainment area for ozone: at least 1.3 to 1.

NR 408.06(4)(e) (e) In any extreme nonattainment area for ozone: at least 1.5 to 1.

NR 408.06(5) (5) Within an ozone transport region, for any area designated as ozone attainment, unclassifiable, or rural transport or marginal nonattainment, the ratio of total actual emissions reductions of VOCs, and nitrogen oxides where applicable, to the net emissions increase for the same air contaminant class shall be at least 1.15 to 1.

NR 408.06(6) (6) A major modification which has a significant net emissions increase of VOCs, or nitrogen oxides where applicable, which is located in an extreme nonattainment area for ozone will be considered to comply with the offset requirements under s. NR 408.05 if the owner or operator of the source elects to offset the proposed emissions increase of VOCs, and nitrogen oxides where applicable, by a greater reduction in actual emissions from other discrete operations, units or pollutant emitting activities within the source at an internal offset ratio at least 1.3 to 1.

NR 408.06(7) (7) 

NR 408.06(7)(a) (a) Emissions reductions achieved by shutting down an existing source or curtailing production or operating hours below baseline levels may be generally credited if:

NR 408.06(7)(a)1. 1. The reductions are surplus, permanent, quantifiable and federally enforceable.

NR 408.06(7)(a)2. 2. The area has a U.S. environmental protection agency approved state implementation plan, except as provided in par. (b).

NR 408.06(7)(a)3. 3. The source notifies the department in writing prior to the date the shut down or curtailment occurs. The notification shall include documentation of the type and quantity of emission reduction credit to be generated.

NR 408.06(7)(a)4. 4. The shutdown or curtailment occurs on or after the date specified for this purpose in the state implementation plan, and if the date specified is on or after the date of the most recent emissions inventory used in the plan’s demonstration of attainment. The department may consider a prior shutdown or curtailment to have occurred after the date of its most recent emissions inventory, if the inventory explicitly includes as current existing emissions the emissions from the previously shut down or curtailed sources. However, no credit is available for shutdowns which occurred prior to August 7, 1977.

NR 408.06(7)(b) (b) The emission reductions described in par. (a) may be credited in the absence of a U.S. environmental protection agency approved state implementation plan only if the shutdown or curtailment occurs on or after the date the construction permit application is filed or if the applicant can establish that the proposed new source is a replacement for the shut down or curtailed source, and the cutoff date provisions of par. (a) 4. are observed.

NR 408.06(8) (8) No emissions reduction credit may be allowed for reductions in any organic compound specifically excluded from the definition of “VOC” in s. NR 400.02 (162).

NR 408.06(9) (9) Credit for an emissions reduction may be claimed to the extent that the department has not relied on it in issuing any permit under ch. NR 405, 406, 407 or this chapter or the state has not relied on it in demonstrating attainment or reasonable further progress. Incidental emissions reductions which are not otherwise required under the Act or chs. NR 400 to 499 may be creditable as emissions reductions for such purposes if the emissions reductions meet the applicable requirements of subs. (1) and (2).

NR 408.06(10) (10) The total increase in emissions, in tons per year, resulting from a major modification that must be offset in accordance with this section shall be determined by summing the difference between the allowable emissions after the modification and the actual emissions before the modification for each emissions unit.

NR 408.06 History History: Cr. Register, May, 1993, No. 449, eff. 6-1-93; am. (4) (intro.), (a), (5), Register, December, 1996, No. 492, eff. 1-1-97; am. (2) (intro.), (a) and (8), Register, October, 1999, No. 526, eff. 11-1-99; CR 03-118: cr. (10) Register June 2007 No. 618, eff. 7-1-07; CR 10-050: cr. (1) (cm) Register November 2010 No. 659, eff. 12-1-10; CR 13-070: am. (1) (a) Register July 2014 No. 703, eff. 8-1-14.

NR 408.07 NR 408.07 Source impact analysis. The applicant for a permit under this chapter shall demonstrate to the satisfaction of the department that all of the following conditions are met:

NR 408.07(1) (1) The emissions offsets required under s. NR 408.06, when considered in conjunction with the proposed emissions increase, will have a net air quality benefit in the affected area, as required under s. NR 408.06 (1) (d).

NR 408.07(2) (2) The emissions from the proposed new major source or major modification, when considered in conjunction with the emissions offsets required under s. NR 408.06, will not contribute to nonattainment in, or interfere with maintenance by, any other state with respect to any national primary or secondary ambient air quality standard.

NR 408.07(3) (3) The emissions from the proposed new major source or major modification, when considered in conjunction with the emissions offsets required under s. NR 408.06, will not interfere with measures required to be included in the applicable implementation plan for any other state under a program for the prevention of significant deterioration or for the protection of visibility.

NR 408.07 History History: Cr. Register, May, 1993, No. 449, eff. 6-1-93; am. (intro.), Register, December, 1996, No. 492, eff. 1-1-97.

NR 408.08 NR 408.08 Additional conditions for approval. For the department to approve a permit required or allowed under s. 285.60, Stats., and this chapter the following criteria shall be met:

NR 408.08(1) (1) All major sources owned or operated by the owner or operator of the proposed source, or by any entity controlling, controlled by, or under common control with the owner or operator, in the state are subject to emission limitations and are in compliance, or on a schedule for compliance, with all applicable emissions limitations and standards under the Act and chs. NR 400 to 499.

NR 408.08(2) (2) By means of an analysis of alternative sites, sizes, production processes and environmental control techniques for proposed new or modified stationary source, the owner or operator of the proposed stationary source or modification can demonstrate to the satisfaction of the department that the benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction or modification.

NR 408.08(3) (3) The administrator has not determined that the applicable implementation plan is not being adequately implemented for the nonattainment area in which the proposed stationary source or modification is to be constructed in accordance with the requirements of part D of title I of the Act (42 USC 7501 to 7515).

NR 408.08 History History: Cr. Register, May, 1993, No. 449, eff. 6-1-93; am. (3), Register, December, 1996, No. 492, eff. 1-1-97; correction made under s. 13.93 (2m) (b) 7., Stats., Register, December, 1996, No. 492.

NR 408.09 NR 408.09 Permit application review; public participation.

NR 408.09(1) (1) The department shall notify all applicants within 20 days as to the completeness of the construction permit application or any deficiency in the application or information submitted. In the event of a deficiency, the date of receipt of the application shall be the date on which the department received all required information.

NR 408.09(2) (2) Within 205 business days after receipt of a complete application, the department shall:

NR 408.09(2)(a) (a) Make a preliminary determination as to whether construction should be approved, approved with conditions or disapproved.

NR 408.09(2)(b) (b) Make available in at least one location in each area in which the proposed source would be constructed a copy of all materials the applicant has submitted, a copy of the preliminary determination, and a copy or summary of other materials, if any, considered in making the preliminary determination.

NR 408.09(2)(c) (c) Notify the public, by advertisement in a newspaper of general circulation in each area in which the proposed source would be constructed, of the application, the preliminary determination, a description of the amount and location of emission reductions that will offset the emissions increase from the new source, or significant net emissions increase from the modification; the determination of lowest achievable emission rate; and the opportunity for comment at a public hearing as well as for written public comment.

NR 408.09(2)(d) (d) Send a copy of the notice of the opportunity for public comment to the applicant, the administrator of the U.S. environmental protection agency, region 5, and officials and agencies having jurisdiction over the location where the proposed construction would occur, including 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 source or modification.

NR 408.09(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 408.09(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 hearings 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 earlier made available preconstruction information relating to the proposed source or modification.

NR 408.09(2)(g) (g) Make a final determination as to whether construction should be approved, approved with conditions or disapproved.

NR 408.09(2)(h) (h) Notify the applicant in writing of the final determination and make the notification available for public inspection at the same locations where the department earlier made available preconstruction information and public comments relating to the source.

NR 408.09 History History: Cr. Register, May, 1993, No. 449, eff. 6-1-93; am. (2) (intro.), Register, August, 2000, No. 536, eff. 9-1-00.

NR 408.10 NR 408.10 Source obligation.

NR 408.10(1) (1) Any owner or operator who constructs or operates a stationary source or modification not in accordance with the application submitted under this chapter or with the terms of any approval to construct, or any owner or operator of a stationary source or modification subject to this chapter who commences construction after June 1, 1993 without applying for and receiving approval as described in this chapter, shall be subject to enforcement action and penalties as provided in ch. NR 494.

NR 408.10(2) (2) The approval to construct or modify a stationary source shall become invalid 18 months after the date a construction permit is issued by the department unless the permit specifies otherwise. The department may extend the 18 month period upon a satisfactory showing that an extension is justified unless otherwise specified in the construction permit.

NR 408.10(3) (3) The approval to construct does not relieve any owner or operator of the responsibility to comply fully with applicable provision of chs. NR 400 to 499 or any other requirements under local, state or federal law.

NR 408.10(4) (4) At the time that a particular source or modification becomes a major 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 a pollutant, such as a restriction on hours of operation, then the requirements of ss. NR 408.04 to 408.09 and this section shall apply to the source or modification as though construction has not yet commenced on the source or modification.

NR 408.10(5) (5) 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 408.02 (28s) (b) 1. and 2., and baseline actual emissions does not exceed the level that is considered to be significant for the air contaminant, the owner or operator shall do the following as applicable: