Chapter NR 436

NR 436.05(2) (2) Variance criteria. A variance under sub. (1) may not be issued unless:

NR 436.05(2)(a) (a) The revision will not delay attainment or prevent maintenance of any ambient air quality standard, as determined by methods acceptable to the department.

NR 436.05(2)(c) (c) The owner or operator of the air contaminant source for which a revision is requested demonstrates that all other direct or portable sources owned or operated in the state by the person are in compliance with all applicable requirements of chs. NR 400 to 499 or are on a schedule for compliance with the requirements.

NR 436.05(2)(d) (d) The owner or operator submits to the department information concerning the conditions or special circumstances which demonstrates, to the department’s satisfaction, that the applicable general RACT requirements from which variance is sought are technologically or economically infeasible. In addition:

NR 436.05(2)(d)1. 1. Where an alternate compliance schedule is sought, the owner or operator shall submit a proposed schedule which demonstrates reasonable further progress and contains a date for final compliance as soon as practicable.

NR 436.05(2)(d)2. 2. Where alternate emission limitations are sought, the owner or operator shall submit proposed emission limitations.

NR 436.05(2)(d)3. 3. Requests for revisions shall be signed by the principal executive officer; partner; sole proprietor; or principal governmental executive or elected official or a duly authorized representative, as appropriate.

NR 436.05(2)(d)4. 4. Requests shall contain other relevant information as required by the department.

NR 436.05(3) (3) Procedures for issuance of variances. The department, in acting upon any request for a revision under this section, shall:

NR 436.05(3)(a) (a) Act on requests for revisions within 3 months of the filing of a completed request.

NR 436.05(3)(b) (b) Offer, through public notice, the opportunity for public comments including, where requested, a public hearing.

NR 436.05(3)(c) (c) State in writing the reasons for denying, granting, or for granting in modified form any request.

NR 436.05(4) (4) Revocation and modification of variances. The department may, after notice and opportunity for hearing, revoke or modify any revision when any of the following applies:

NR 436.05(4)(a) (a) Any term or condition of the revision has been violated.

NR 436.05(4)(b) (b) Changes in ambient air quality indicate that the source has a significant adverse impact on the attainment or maintenance of any ambient air quality standard.

NR 436.05(4)(c) (c) The owner or operator did not act in good faith in demonstrating the technological or economic infeasibility of compliance with the general RACT requirements or in submitting other relevant information in support of the revision request.

NR 436.05(5) (5) Effective date of variances. When the department grants, modifies or revokes a source-specific revision to a general RACT requirement which has been approved by the administrator of the U.S. environmental protection agency as part of the state implementation plan, the revision will not become effective until both the following conditions have been met:

NR 436.05(5)(a) (a) The revision has been submitted to the administrator pursuant to applicable law, including but not limited to 42 USC 7410 and 40 CFR parts 51 and 52, and all such requirements have been met.

NR 436.05(5)(b) (b) The revision has been approved by the administrator or designee as a revision to the state implementation plan.

NR 436.05 History History: Renum. from NR 154.02 (3) and am. Register, September, 1986, No. 369, eff. 10-1-86; am. (5) (intro.), Register, May, 1992, No. 437, eff. 6-1-92; am. (2) (b), (5), cr. (2) (bm), Register, December, 1995, No. 480, eff. 1-1-96; r. (2) (b), (bm), am. (2) (c), (4) (intro.), Register, December, 1996, No. 492, eff. 1-1-97.

NR 436.06 NR 436.06 Alternate fuel variances. The department may grant temporary variances from the emission limitations of chs. NR 400 to 499 to air contaminant sources which request such variances in order to switch from a regular fuel to an alternate fuel which is in more plentiful supply, provided that the conditions of this section are met.

NR 436.06(1) (1) If the department of administration, division of energy and intergovernmental relations has certified that a switch from the fuel regularly used by the applicant to an alternate fuel which would cause an emission limitation to be exceeded is needed to protect public health, safety or welfare in the applicant’s part of the state, the department may grant a temporary variance from the requirements provided that all of the following conditions are met:

NR 436.06(1)(a) (a) The applicant has submitted a list of steps which will be implemented without delay to minimize adverse effects caused by the switch in fuels permitted by the variance, including all feasible steps to minimize use of the alternate fuel through energy conservation and other measures.

NR 436.06(1)(b) (b) The applicant has provided, or has agreed to provide within 5 days after the date the variance is granted, information on the type, quantity and quality of fuel and rate of consumption in use before and to be used after the switch in fuels.

NR 436.06(1)(c) (c) Granting the variance would be unlikely to cause or exacerbate a violation of any primary ambient air quality standard.

NR 436.06(1)(d) (d) Litigation for violation of an emission limitation prescribed in chs. NR 400 to 499 or an ambient air quality standard prescribed in ch. NR 404 is not presently pending.

NR 436.06(1)(e) (e) The applicant has agreed to submit no later than 90 days from the date that the variance is granted a plan and time schedule for preventing the recurrence of the conditions which necessitated a variance request.

NR 436.06(1)(f) (f) The applicant submitted and implemented in good faith any plan required to be submitted as a condition to a previously-granted variance.

NR 436.06(1)(g) (g) After July 1, 1978, if the applicant uses natural gas or distillate oil as a regular fuel, the applicant has submitted and received department approval of a plan to minimize dependence on these fuels while complying with the emission limitations of chs. NR 400 to 499.

NR 436.06(2) (2) If the division of energy and intergovernmental relations has not certified that a switch in fuels is needed, the department may grant a temporary variance from the emission limitations of chs. NR 400 to 499 only if the conditions of sub. (1) are met and the applicant has submitted documentation of the unavailability of the fuel regularly used and of any alternate fuel which the air contaminant source has the capability to burn in compliance with emission limitations.

NR 436.06(3) (3) When granting a variance is likely to cause a secondary standard (but not a primary standard) to be violated or exacerbated, the following conditions shall apply:

NR 436.06(3)(a) (a) The variance must specify an expiration date no later than 45 days from the date the variance is granted.

NR 436.06(3)(b) (b) Prior to granting a variance extension which expires on a date more than 45 days after the date the variance was originally granted, the department shall do all of the following:

NR 436.06(3)(b)1. 1. Determine either that the applicant’s regular fuel is unavailable or that certification by the division of energy and intergovernmental relations of the need for a switch in fuels in the applicant’s part of the state remains in effect.

NR 436.06(3)(b)2. 2. Evaluate through ambient air quality monitoring or dispersion modeling or both the air quality impact of granting the variance and determine that maintenance of the primary standards is not being endangered.

NR 436.06(3)(b)3. 3. Solicit and consider public comment on permitting the extension.

NR 436.06(4) (4) When granting a variance is unlikely to cause any ambient air quality standard to be violated, the following conditions shall apply:

NR 436.06(4)(a) (a) The variance must specify an expiration date no later than 60 days from the date the variance is granted.

NR 436.06(4)(b) (b) Prior to granting a variance extension which expires on a date more than 60 days after the date the variance was originally granted, the department shall do both of the following:

NR 436.06(4)(b)1. 1. Determine either that the applicant’s regular fuel is unavailable or that certification by the division of energy and intergovernmental relations of the need for a switch in fuels in the applicant’s part of the state remains in effect.

NR 436.06(4)(b)2. 2. Evaluate through ambient air monitoring or dispersion modeling or both the air quality impact of granting the variance. If the evaluation indicates that maintenance of the air standards is not being endangered, an extension may be granted. If the evaluation indicates that a secondary air standard has been or may be violated, the procedure in sub. (3) (b) shall apply.

NR 436.06(5) (5) The department may rescind or amend a variance granted under this section at any time.

NR 436.06 History History: Renum. NR 154.02 (4) and am. Register, September, 1986, No. 369, eff. 10-1-86; am. (1) (intro.), (3) (b) (intro.), (4) (b) (intro.), 2., Register, December, 1996, No. 492, eff. 1-1-97; am. (3) (b) 2., Register, October, 1999, No. 526, eff. 11-1-99.

NR 436.07 NR 436.07 Duty to comply with applicable provisions. The issuance or granting of any order or variance under this chapter does not relieve any person of the duty to comply with all other applicable federal, state and local laws and rules.

NR 436.07 History History: Renum. NR 154.02 (5) and am. Register, September, 1986, No. 369, eff. 10-1-86; am. Register, May, 1992, No. 437, eff. 6-1-92.