Chapter NR 409

NR 409.09(2)(e)2.a. a. Upon a conditional determination by the administrator that the technology to be used in the repowering extension plan is a qualified repowering technology and a determination by the department that the plan meets the requirements, the department shall issue the acid rain portion of the operation permit, including the approved repowering extension plan and a schedule of compliance with enforceable milestones for construction, installation and commencement of operation of the repowering technology and other requirements necessary to ensure that emission reduction requirements under this section are met.

NR 409.09(2)(e)2.b. b. Except as otherwise provided in par. (f), the repowering extension shall be in effect starting January 1, 2000 and ending on the day before the date specified in the acid rain portion of an operation permit, on which the existing unit shall be removed from operation, to install the qualifying repowering technology, or shall be permanently removed from service for replacement by a new unit with the technology; provided that the repowering extension shall end no later than December 31, 2003.

NR 409.09(2)(e)2.c. c. The portion of the operation permit specifying the repowering extension and other requirements under subd. 2. a. shall be subject to the administrator’s final determination, under 40 CFR 72.44 (d) (4), that the technology to be used in the repowering extension plan is a qualifying repowering technology.

NR 409.09(2)(e)3. 3. Allowances shall be allocated in accordance with 40 CFR 72.44 (f) (3) and (g).

NR 409.09(2)(f) (f) Failed repowering projects.

NR 409.09(2)(f)1. 1. If, at any time before the end of the repowering extension under par. (e) 2. b., the designated representative of a unit governed by an approved repowering extension plan submits the notification under s. NR 409.13 (2) (d) that the owners and operators have decided to terminate efforts to properly design, construct and test the repowering technology specified in the plan before completion of construction or startup testing, the designated representative may submit to the department a requested significant permit revision demonstrating that the efforts were in good faith. A copy of the requested significant permit revision shall be submitted to the administrator. If the demonstration is to the satisfaction of the administrator, the unit may not be deemed in violation of the act because of a termination and the department shall revise the operation permit in accordance with subd. 2.

NR 409.09(2)(f)2. 2. Regardless of whether notification under subd. 1. is given, the repowering extension shall end beginning on the earlier of the date of the notification or the date by which the designated representative was required to give the notification under s. NR 409.13 (2) (d).

NR 409.09(2)(f)3. 3. The designated representative of a unit governed by an approved repowering extension plan may submit to the department a proposed significant permit revision demonstrating that the repowering technology specified in the plan was properly constructed and tested on the unit but was unable to achieve the emissions reduction requirements specified in the plan and that it is economically or technologically infeasible to modify the technology to achieve the emission limits. A copy of the requested significant permit revision shall be submitted to the administrator. In order to be properly constructed and tested, the repowering technology shall be constructed at least to the extent necessary for direct testing of multiple combustion emissions, including sulfur dioxide and nitrogen oxides, from the unit while operating the technology at nameplate capacity. If the demonstration is to the satisfaction of the administrator:

NR 409.09(2)(f)3.a. a. The unit may not be deemed in violation of the act because of the failure to achieve the emissions reduction limitations;

NR 409.09(2)(f)3.b. b. The department shall revise the acid rain portion of the operation permit in accordance with subd. 3. c. and d.;

NR 409.09(2)(f)3.c. c. The existing unit may be retrofitted or repowered with another clean coal or other available control technology; and

NR 409.09(2)(f)3.d. d. The repowering extension shall continue in effect until the earlier of the date the existing unit commences commercial operation with the control technology or December 31, 2003.

NR 409.09(2)(g) (g) Special provisions.

NR 409.09(2)(g)1. 1.

NR 409.09(2)(g)1.a. a. Sulfur dioxide allowances allocated during the repowering extension under pars. (e) 3. and (f) to a unit governed by an approved repowering extension plan may not be transferred to any allowance tracking system account other than the unit accounts of other units at the same source as that unit.

NR 409.09(2)(g)1.b. b. Any existing unit governed by an approved repowering extension plan shall be subject to the acid rain emissions limitations for nitrogen oxides in accordance with section 407 of the act (42 USC 7651f) and s. NR 409.065 beginning on the date that the unit is removed from operation to install the repowering technology or is permanently removed from service.

NR 409.09(2)(g)1.c. c. No existing unit governed by an approved repowering extension plan shall be eligible for a waiver under section 111 (j) of the act (42 USC 7411 (j)).

NR 409.09(2)(g)1.d. d. No new unit governed by an approved repowering extension plan shall receive an exemption from the requirements imposed under section 111 of the act (42 USC 7411).

NR 409.09(2)(g)2. 2. Each unit governed by an approved repowering extension plan shall comply with the special reporting requirements of s. NR 409.13 (2).

NR 409.09(2)(g)3. 3.

NR 409.09(2)(g)3.a. a. The owners and operators of a unit governed by an approved repowering plan shall be liable for any violation of the plan or this section at that or any other unit governed by the plan.

NR 409.09(2)(g)3.b. b. The units governed by the plan under par. (b) 2. shall continue to have a common designated representative until the existing unit is permanently retired under the plan.

NR 409.09(2)(g)4. 4. Except as provided in par. (f), a repowering extension plan may not be terminated after December 31, 1999.

NR 409.09 History History: Cr. Register, April, 1995, No. 472, eff. 5-1-95; renum. (1) (a) to be (1) (a) 1., cr. (1) (a) 2. and am. (1) (b) (intro.), (c) (intro.), 1., (d) 1., (2) (f) 1., 3. (intro.) and (g) 1. b., Register, November, 1999, No. 527, eff. 12-1-99.

NR 409.10 NR 409.10 Acid rain portion of an operation permit.

NR 409.10(1) (1) Contents.

NR 409.10(1)(a) (a) Each acid rain portion of an operation permit, including any draft or proposed acid rain portion of an operation permit, shall contain the following elements:

NR 409.10(1)(a)1. 1. All elements required for a complete acid rain portion of an operation permit application under s. NR 409.08 (2), as approved or adjusted by the department.

NR 409.10(1)(a)2. 2. The applicable acid rain emissions limitation for sulfur dioxide.

NR 409.10(1)(a)3. 3. The applicable acid rain emissions limitation for nitrogen oxides.

NR 409.10(1)(b) (b) Each acid rain portion of an operation permit is deemed to incorporate the definitions of terms under s. NR 409.02, chs. NR 400, 406 and 407, and the definitions in title IV of the act (42 USC 7651 to 7651o).

NR 409.10(2) (2) Permit shield. Each affected unit operated in accordance with the acid rain portion of an operation permit that governs the unit and that was issued in compliance with title IV of the act (42 USC 7651 to 7651o), as provided in this chapter, 40 CFR parts 72, 73, 74, 75, 76, 77 and 78 and the regulations implementing section 407 of the act (42 USC 7651f), shall be deemed to be operating in compliance with the acid rain program, except as provided in s. NR 409.06 (7) (f).

NR 409.10 History History: Cr. Register, April, 1995, No. 472, eff. 5-1-95; am. (2), Register, November, 1999, No. 527, eff. 12-1-99.

NR 409.11 NR 409.11 Acid rain portion of an operation permit issuance procedures.

NR 409.11(1) (1) General. The department shall issue or deny all acid rain portions of title V permits in accordance with s. 285.62, Stats. and s. NR 409.10.

NR 409.11 Note Note: These rules are intended to follow the requirements in 40 CFR 72.72 regarding state permit program approval criteria.

NR 409.11(1)(a) (a) Permit issuance deadline and effective date.

NR 409.11(1)(a)1. 1. On or before December 31, 1997, the department shall issue an operation permit with a phase II acid rain portion to each affected source whose designated representative submitted a timely and complete application for the acid rain portion of its operation permit by January 1, 1996 in accordance with s. NR 409.07 (1) and which meets the requirements of this chapter and ch. NR 407.

NR 409.11(1)(a)2. 2. Not later than January 1, 1999, for each unit subject to an acid rain NOx emissions limitation, the department shall begin the process of amending the acid rain portion of an operation permit under s. NR 409.12 (4) to add any NOx early election plan that was approved by the administrator under 40 CFR 76.8 and has not been terminated and begin the process of amending the acid rain portion of the permit to add the acid rain program nitrogen oxides requirements; provided that the designated representative of the affected source submitted a timely and complete acid rain portion of an operation permit application for nitrogen oxides in accordance with s. NR 409.07 (1). The amending may not affect the term of the acid rain portion of an operation permit.

NR 409.11(1)(a)3. 3. Each acid rain portion of an operation permit issued in accordance with this chapter shall have a term of 5 years commencing on its effective date, provided that, at the discretion of the department, the first acid rain portion of an operation permit for Phase II may have a term of less than 5 years where necessary to coordinate the term of the permit with the term of an operation permit issued by the department to the source. Each acid rain portion of an operation permit issued in accordance with subd. 1. shall take effect by the later of January 1, 2000 or, where the permit governs a unit under s. NR 409.01 (1) (a) 3., the deadline for monitor certification under 40 CFR part 75.

NR 409.11(1)(a)4. 4. The acid rain portion of an operation permit shall be binding on any new owner or operator or designated representative of any source or unit governed by the permit.

NR 409.11(1)(b) (b) Acid rain portion of an operation permit requirements. Each acid rain portion of an operation permit shall contain all applicable acid rain requirements, shall be a portion of the operation permit that is complete and segregable from all other air quality requirements and may not incorporate information contained in any other documents, other than documents that are readily available.

NR 409.11(2) (2) Acid rain appeal procedures.

NR 409.11(2)(a) (a) Appeals of the acid rain portion of an operation permit issued by the department that do not challenge or involve decisions or actions of the administrator under 40 CFR parts 72, 73, 74, 75, 76, 77 and 78 shall be conducted according to the procedures in ch. NR 407 and ss. 285.13 (1), 285.81 and 227.40 to 227.60, Stats. The permit shield under s. NR 409.10 (2) shall continue to be in effect during the appeal process. Appeals of the acid rain portion of a permit that challenge or involve decisions or actions of the administrator shall follow the procedures under 40 CFR part 78 and section 307 of the act (42 USC 7607). Decisions or actions include, but are not limited to, allowance allocations, determinations concerning alternative monitoring systems and determinations of whether a technology is a qualifying repowering technology.

NR 409.11(2)(b) (b) No state administrative or judicial appeal of the acid rain portion of an operation permit may be allowed to commence more than 30 days following issuance of the acid rain portion of an operation permit, as provided by ss. 285.81 and 227.53, Stats.

NR 409.11(2)(c) (c) The administrator may intervene as a matter of right in any state administrative appeal of an acid rain portion of an operation permit or denial of an acid rain portion of an operation permit.

NR 409.11(2)(e) (e) The department shall serve written notice on the administrator of any state administrative or judicial appeal concerning an acid rain provision of any operation permit or denial of an acid rain portion of any operation permit within 30 days of the filing of the appeal.

NR 409.11(2)(f) (f) The department shall serve written notice on the administrator of any determination or order in a state administrative or judicial proceeding that interprets, modifies, voids or otherwise relates to any portion of an acid rain portion of an operation permit.

NR 409.11 History History: Cr. Register, April, 1995, No. 472, eff. 5-1-95; am. (2) (a), Register, December, 1996, No. 492, eff. 1-1-97; am. (1) (a) 1., 3., (2) (a) and (f), r. (1) (c) and (2) (d), Register, November, 1999, No. 527, eff. 12-1-99.

NR 409.12 NR 409.12 Revisions of acid rain provisions.

NR 409.12(1) (1) General.

NR 409.12(1)(a) (a) This section governs revisions to the acid rain portion of any operation permit issued by the department under ch. NR 407. Any determination or interpretation by the department or by the state, including a state court, modifying or voiding any provision of the acid rain portion of an operation permit shall be subject to review by the administrator in accordance with 40 CFR 70.8 (c) as applied to permit modifications, unless the determination or interpretation is an administrative revision approved in accordance with 40 CFR 72.83 and sub. (4).

NR 409.12(1)(b) (b) A request for a permit revision may be submitted to the department at any time. No permit revision may affect the duration of the permit to be revised. No permit revision may excuse any violation of an applicable requirement of the acid rain program that occurred prior to the effective date of the revision.

NR 409.12(1)(c) (c) The terms of the acid rain portion of the operation permit shall apply while the request for a permit revision is pending, except as provided in sub. (4) for administrative permit revisions.

NR 409.12(1)(d) (d) The standard requirements of 40 CFR 72.9 may not be modified or voided by a permit revision.

NR 409.12(1)(e) (e) Any request for a permit revision to incorporate a compliance option that was not submitted for approval and comment during the permit issuance process, or involving a change in a compliance option that was previously submitted, shall meet the requirements for applying for that compliance option under subpart D of 40 CFR part 72 and 40 CFR parts 74 and 76.

NR 409.12(1)(f) (f) For permit revisions not described in sub. (2) or (3), the department may, at its discretion, determine whether the revision request will be processed under sub. (2) or (3).

NR 409.12(1)(g) (g) Any designated representative who fails to submit any relevant information or who has submitted incorrect information in a permit revision shall, upon becoming aware of the failure or incorrect submittal, promptly submit the supplementary information or corrected information to the department.

NR 409.12(2) (2) Significant permit revisions.

NR 409.12(2)(a) (a) Applications for the following revisions shall be processed as significant permit revisions except as provided in sub. (4) (a) 11.:

NR 409.12(2)(a)1. 1. Relaxation of an excess emission offset requirement after approval of the offset plan by the administrator.

NR 409.12(2)(a)2. 2. Incorporation of a final nitrogen oxides alternative emission limitation pursuant to section 407 (d) of the act (42 USC 7651f(d)).

NR 409.12(2)(a)3. 3. Determinations concerning failed repowering projects under 40 CFR 72.44 (g) (1) (i) and (2).

NR 409.12(2)(b) (b) Requests for the following permit revisions shall be processed, at the option of the designated representative submitting the request for the permit revision, under either the significant permit revision procedures in par. (c) or under the fast-track revision procedures in sub. (3):

NR 409.12(2)(b)1. 1. Use of a compliance option that the designated representative did not submit for approval and comment during the permit issuance process, except that incorporation of a reduced utilization plan that does not designate a compensating unit, and that meets the requirements for phase I reduced utilization plans in 40 CFR 72.43, may be processed using the administrative permit revision procedures in sub. (4).

NR 409.12(2)(b)2. 2. Changes in a substitution plan or reduced utilization plan that result in the addition of a new substitution unit or a new compensating unit under the plan.

NR 409.12(2)(b)3. 3. Addition of a nitrogen oxides averaging plan to a permit.

NR 409.12(2)(b)4. 4. Changes in a phase I extension plan, phase II repowering extension plan, nitrogen oxides averaging plan, or nitrogen oxides compliance deadline extension.

NR 409.12(2)(c) (c) Requests for significant permit revisions shall be processed in accordance with s. 285.62, Stats., except that the department shall act on the majority of the requests for significant permit revisions within 9 months after receipt of a complete application.

NR 409.12(2)(d) (d) An affected source requesting a significant permit revision under this subsection shall comply with all applicable requirements proposed in the request for revision, if the request is complete, while the request is pending. Where a conflict exists between an applicable requirement proposed in the request for revision and an existing permit provision, the source shall comply with the existing permit provision.

NR 409.12(3) (3) Fast-track revisions. The following procedures shall apply to requests for fast-track revisions submitted under sub. (2):

NR 409.12(3)(a) (a) The designated representative shall serve a copy of a request for a fast-track revision on the administrator, the department, the public service commission of Wisconsin and any other state or local utility regulatory authority with jurisdiction over the owners of any source or any unit covered by the permit, the state or local air pollution agency for any affected state and any interested person. Within 5 business days of serving the copies, the designated representative shall provide public notice of the request for revision by publication in a newspaper of general circulation in the area where the source is located or in the official state newspaper. The department shall provide the notice to any person or group that requests the notice. The notice shall be designed to give public notice of the substance of the requested permit revision and of the opportunity for public comments.

NR 409.12(3)(b) (b) Anyone who wishes to comment shall have a period of 30 days, commencing on the date of publication of the notice under par. (a), to comment on the request for a fast-track revision. Comments shall be submitted in writing to the department and to the designated representative.

NR 409.12(3)(c) (c) Within 90 days of the close of the public comment period provided under par. (b), the department shall consider the request for fast-track revision and the comments received on it and approve, in whole or in part or with changes or conditions as appropriate, or disapprove the request for revision. A fast-track revision shall be subject to the same provisions for review by the administrator and affected states as are applicable to a significant permit revision under sub. (2).

NR 409.12(4) (4) Administrative permit revision.

NR 409.12(4)(a) (a) Requests for the following revisions shall be processed as administrative permit revisions:

NR 409.12(4)(a)1. 1. Revisions to a permit to include a compliance option that has previously been conditionally approved by the department, provided that the following requirements are met:

NR 409.12(4)(a)1.a. a. The designated representative shall notify the department in writing that the conditionally-approved compliance option will be pursued beginning January 1 of a specified year. If the conditionally-approved compliance option includes a plan involving units at more than one affected source, the designated representative of each source governed by the plan shall sign and certify the notification in accordance with 40 CFR 72.21. The notification shall be subject to the limitations on activation under subd. 1. b. and 40 CFR 72.40 to 72.44.

NR 409.12(4)(a)1.b. b. The notification under subd. 1. a. shall specify the first calendar year and the last calendar year for which the conditionally-approved compliance option is to be activated. A conditionally-approved compliance option shall be activated, if at all, before the date of any enforceable milestone applicable to the compliance option. The date of activation of the compliance option may not be a defense against failure to meet the requirements applicable to that compliance option during each calendar year for which the compliance option is activated.

NR 409.12(4)(a)2. 2. Changes in the designated representative or alternate designated representative, provided that a new certificate of representation has been submitted to the administrator.

NR 409.12(4)(a)3. 3. Correction of typographical errors.

NR 409.12(4)(a)4. 4. Changes in names, addresses, or telephone or facsimile numbers.

NR 409.12(4)(a)5. 5. Changes in the owners or operators, provided that a new certificate of representation is submitted to the administrator at least 30 days prior to the changes.

NR 409.12(4)(a)6. 6. Termination of a compliance option in the permit, provided that the following requirements for termination are met:

NR 409.12(4)(a)6.a. a. This procedure may not be used to terminate a phase II repowering extension plan after December 31, 1999 or to terminate a phase I extension plan.

NR 409.12(4)(a)6.b. b. The designated representative for a unit may request termination of a compliance option by notifying the department in writing that an approved compliance option will be terminated beginning January 1 of a specified year. If the compliance option includes a plan involving units at more than one affected source, the designated representative of each source governed by the plan shall sign and certify the notification in accordance with 40 CFR 72.21. The notification shall be subject to the limitations on termination under this paragraph, 40 CFR 72.40 to 72.44 and regulations implementing section 407 of the act (42 USC 7651f).

NR 409.12(4)(a)6.c. c. The notification under subd. 6. b. shall specify the calendar year for which the termination will take effect.

NR 409.12(4)(a)7. 7. Changes in a substitution or reduced utilization plan that do not result in the addition of a new substitution unit or a new compensating unit under the plan.

NR 409.12(4)(a)8. 8. Changes in the date, specified in a permit, of commencement of operation of qualifying phase I technology, provided that the new date is in accordance with the phase I extension plan requirements in 40 CFR 72.42.