Chapter NR 409

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.

NR 409.12(4)(a)9. 9. Changes in the date, specified in a permit, of commencement of operation or a change in the deadline for continuous emission or opacity monitor certification, provided that they are in accordance with the standard requirements for permits in 40 CFR 72.9.

NR 409.12(4)(a)10. 10. The addition of or change in a nitrogen oxides alternative emissions limitation demonstration period, provided that the requirements of 40 CFR part 76 are met.

NR 409.12(4)(a)11. 11. The addition of a NOx early election plan that was approved by the administrator under 40 CFR 76.8.

NR 409.12(4)(a)12. 12. The addition of an exemption for which the requirements have been met under 40 CFR 72.7 or 72.8 or which was approved by the department under s. NR 409.055.

NR 409.12(4)(a)13. 13. When an EPA issued phase I acid rain portion of an operation permit is revised by EPA as a permit modification under 40 CFR 72.81, the revision to the department issued portion of an operation permit.

NR 409.12(4)(a)14. 14. Incorporation of changes that the administrator has determined to be similar to those listed in subds. 1. to 12.

NR 409.12(4)(b) (b)

NR 409.12(4)(b)1. 1. Requests for administrative revisions shall be processed in accordance with s. NR 407.11 (3) and (4). The department shall take final action on a request for the addition of an alternative emissions limitation demonstration period within 90 days of receipt of the requested revision and may take action without providing prior public notice.

NR 409.12(4)(b)2. 2. The department may, on its own motion, make an administrative permit revision under par. (a) 3., 4., 11. or 12. at least 30 days after providing notice to the designated representative of the revision and without providing any other public notice.

NR 409.12(4)(c) (c) The department shall designate the permit revision under par. (b) as having been made as an administrative permit revision. The department shall submit the revised portion of the permit to the administrator.

NR 409.12(4)(d) (d) The provisions for review by the administrator and affected states applicable to a significant permit revision under sub. (2) do not apply to an administrative permit revision.

NR 409.12(5) (5) Automatic permit revisions. The following permit revisions shall be deemed to revise automatically, and become a part of, the affected source’s permit by operation of law without any further action or review by the department:

NR 409.12(5)(a) (a) Upon recordation by the administrator under 40 CFR 73.10 to 73.53, all allowance allocations to transfers to, and deductions from an affected source’s allowance tracking system account.

NR 409.12(5)(b) (b) Incorporation of an offset plan that has been approved by the administrator under 40 CFR 77.4.

NR 409.12(6) (6) Permit revisions by the department.

NR 409.12(6)(a) (a)

NR 409.12(6)(a)1. 1. The department, on its own motion, shall revise an acid rain provision of an operation permit whenever any of the following occurs:

NR 409.12(6)(a)1.a. a. Any additional requirement under the acid rain program becomes applicable to any affected source governed by the permit.

NR 409.12(6)(a)1.b. b. The department determines that the permit contains a material mistake or that an inaccurate statement was made in establishing the emissions standards or other terms or conditions of the permit, unless the mistake or statement is corrected in accordance with sub. (4).

NR 409.12(6)(a)1.c. c. The department determines that the permit must be revised or revoked to assure compliance with acid rain program requirements.

NR 409.12(6)(a)2. 2. No later than January 1, 1999, the department shall revise any permits of affected sources to add the acid rain program nitrogen oxides requirements, consistent with 40 CFR part 76, provided that the designated representative of the affected source submits a timely and complete acid rain portion of an operation permit application for nitrogen oxides, in accordance with 40 CFR 72.21. The revision may not affect the duration of the acid rain portion of an operation permit.

NR 409.12(6)(b) (b) Permit revisions under this subsection shall be processed in accordance with s. NR 407.14 (3) and (4). When revising a permit to an affected source under this subsection, the department shall make a determination on the approvability of a revised permit which would change the provisions, or add the requirements, for which the reopening was necessary. The revised permit shall contain the following elements:

NR 409.12(6)(b)1. 1. All elements required for acid rain permit content under 40 CFR 72.50.

NR 409.12(6)(b)2. 2. The applicable acid rain emissions limitation for sulfur dioxide.

NR 409.12(6)(b)3. 3. The applicable acid rain emissions limitation for nitrogen oxides.

NR 409.12 History History: Cr. Register, December, 1993, No. 456, eff. 1-1-94; renum. from NR 407.17 and am. (1) (a), (d), (e), (2) (a) (intro.), (d), (3) (a), (4) (a) 1. a., 6. b., (b), cr. (4) (a) 11., 12., Register, April, 1995, eff. 5-1-95; renum. (4) (a) 11. and 12. to be (4) (a) 13. and 14., am. (1) (a), (c) (d), (e), (3) (c), (4) (a) 10., 14., and (6) (a) 2., cr. (1) (g), (4) (a) 11., 12., (4) (c) and (d), r. and recr. (4) (b) and (6) (a) 1., Register, November, 1999, No. 527, eff. 12-1-99.

NR 409.13 NR 409.13 Compliance certification.

NR 409.13(1) (1) Annual compliance certification report.

NR 409.13(1)(a) (a) Applicability and deadline. For each calendar year in which a unit is subject to the acid rain emissions limitations, the designated representative of the source at which the unit is located shall submit to the administrator and to the department, within 60 days after the end of the calendar year, an annual compliance certification report for the unit in compliance with 40 CFR 72.90. For the purpose of determining compliance with the acid rain emissions limitations and reduction requirements, total tons for a year shall be calculated as the sum of all recorded hourly emissions, or the tonnage equivalent of the recorded hourly emissions rates, in accordance with 40 CFR part 75, with any remaining fraction of a ton equal to or greater than 0.50 ton deemed to equal one ton and any fraction of a ton less than 0.50 ton deemed not to equal any ton.

NR 409.13(1)(b) (b) Satisfying other requirements. The submission of complete compliance certifications in accordance with par. (a) and 40 CFR part 75 shall be deemed to satisfy the requirement to submit compliance certifications under this chapter and chs. NR 406 and 407 with regard to the acid rain portion of the source’s operation permit.

NR 409.13(2) (2) Units with repowering extension plans.

NR 409.13(2)(a) (a) Design and engineering and contract requirements. No later than January 1, 2000, the designated representative of a unit governed by an approved repowering plan shall submit to the administrator and the department:

NR 409.13(2)(a)1. 1. Satisfactory documentation of a preliminary design and engineering effort.

NR 409.13(2)(a)2. 2. A binding letter agreement for the executed and binding contract, or for each in a series of executed and binding contracts, for the majority of the equipment to repower the unit using the technology conditionally-approved by the administrator under 40 CFR 72.44 (d) (3).