NR 445.11 HistoryHistory: CR 02-097: cr. Register June 2004 No. 582, eff. 7-1-04; CR 07-076: am. Tables D and E Register July 2008 No. 631, eff. 8-1-08; reprinted to insert line numbers per CR 07-076 Register August 2008 No. 632. NR 445.12(1)(1) Criteria for approval. The owner or operator of a source subject to this chapter may apply for and the department may approve a variance from any of the provisions identified in pars. (a) and (b) if the applicant demonstrates to the satisfaction of the department that applicable provisions are met as follows: NR 445.12(1)(a)1.1. Compliance with the LAER control requirement for which the variance has been requested would be economically infeasible. NR 445.12(1)(a)2.2. Residual emissions of the hazardous air contaminant in question would not cause significant harm to the environment or public health. NR 445.12(1)(a)3.3. The source’s emissions would be controlled to a level that is the best available control technology. NR 445.12(1)(b)(b) An applicant for a variance from the emission limitation of s. NR 445.07 (1) (a) for a contaminant having a standard based on an annual time period shall demonstrate all of the following to the satisfaction of the department: NR 445.12(1)(b)1.1. All direct or portable sources owned or operated in the state by the owner or operator of the air contaminant source for which a variance is requested are in, or are on a schedule for, compliance with all other applicable requirements of chs. NR 400 to 499. NR 445.12(1)(b)2.2. The emission limitation from which variance is sought is technologically or economically infeasible to meet due to conditions or special circumstances at the source, including adverse environmental or energy impacts. NR 445.12(1)(b)3.3. Residual emissions of the hazardous air contaminant would not cause significant harm to public health. NR 445.12(1)(b)4.4. Good faith efforts have been made to comply with s. NR 445.07 (1) (a) and all reasonably available alternative operating procedures and interim control measures to minimize emissions of the hazardous air contaminant will be utilized during the duration of the variance. NR 445.12(2)(2) Consultation. The department shall consult with the department of health services to determine that residual emissions would not cause significant harm under sub. (1) (a) 2. or (b) 3. prior to establishing an emission limitation in a permit or order under this section. NR 445.12(3)(3) Application forms. Application for a variance under this section shall be submitted on the application forms required for a construction permit, an operation permit, an amendment to an application, renewal of the operation permit, or for a significant revision under s. NR 407.13, as applicable. NR 445.12 NoteNote: Application forms for sub. (3) may be obtained from, and submitted to, the regional and area offices of the department or:
Wisconsin Department of Natural Resources
Bureau of Air Management
PO Box 7921
Madison WI 53707-7921
Attention: NR 445 Variance Applications.
NR 445.12(4)(4) Notice and hearing. The department shall publish a notice of, and hold a public hearing on, any preliminary determination to approve a variance request under this section. NR 445.12(5)(5) Action on applications. The department shall grant, conditionally grant or deny a variance request within 90 business days after the close of the public comment period on the request. NR 445.12(6)(6) Review and revision. The department shall review any variance granted under this section on a 5 year basis. Following its review and after notice and an opportunity for a public hearing and public comment, the department may modify, extend or rescind the variance. NR 445.12 HistoryHistory: CR 02-097: cr. Register June 2004 No. 582, eff. 7-1-04; correction in (2) made under s. 13.92 (4) (b) 6., Stats., Register August 2008 No. 632. NR 445.13NR 445.13 Review of hazardous air contaminant requirements. NR 445.13(1)(1) Periodic reports. The department, in consultation with the department of health services, shall prepare a periodic report for the natural resources board that reviews information related to listing, de-listing, and setting regulatory thresholds, standards and control requirements for hazardous air contaminants under this chapter. The report shall include all of the following: NR 445.13(1)(a)(a) A review of available information about the likely sources of emissions of and an assessment of whether the criteria set forth in sub. (2) (b) are likely to apply to the hazardous air contaminants identified under this subsection. NR 445.13(2)(a)(a) The department shall determine that a substance is a hazardous air contaminant that may be listed in Table A, B or C of s. NR 445.07 if the substance can, due to inhalation, cause an adverse health effect and it meets one or more of the following conditions: NR 445.13(2)(a)1.1. The substance is classified as a known carcinogen or reasonably anticipated to be carcinogenic by both the International Agency for Research on Cancer and the National Toxicology Program. NR 445.13(2)(a)2.2. The substance has a threshold limit value established by the American Conference of Governmental Industrial Hygienists. NR 445.13(2)(a)3.3. The substance has a reference concentration established by the United States environmental protection agency with an uncertainty factor of 300 or less. NR 445.13(2)(b)(b) Except as provided for in pars. (c) and (d), the department shall list in Table A, B or C of s. NR 445.07 a substance determined under par. (a) to be a hazardous air contaminant if it also determines that none of the following apply to the contaminant: NR 445.13(2)(b)1.1. The only critical inhalation effect listed for the substance by the American Conference of Governmental Industrial Hygienists is asphyxiation. NR 445.13(2)(b)2.2. The substance possesses an explosive nature requiring safety procedures that preclude ambient concentrations that would present toxicity concerns. NR 445.13(2)(b)3.3. The substance has a threshold limit value of greater than or equal to 100 parts per million. NR 445.13(2)(b)4.4. The substance has a threshold limit value of greater than or equal to 10 milligrams per cubic meter. NR 445.13(2)(c)(c) Paragraph (b) notwithstanding, the department may consider any of the following in determining whether to list a hazardous air contaminant in Table A, B or C of s. NR 445.07: NR 445.13(2)(c)1.1. Other regulations that may provide adequate protection for public health or welfare. NR 445.13(2)(c)2.2. That additional information is necessary to fully assess the need to list the hazardous air contaminant in Table A, B or C. NR 445.13(2)(d)(d) Paragraph (b) notwithstanding, the department shall consider all of the following in determining whether to list a hazardous air contaminant in Table A, B or C of s. NR 445.07: NR 445.13(2)(d)1.1. An evaluation of sources in Wisconsin that release, or are likely to release, the contaminant. NR 445.13(2)(d)2.2. An evaluation of the expected population exposure to the contaminant and the related risks. NR 445.13(2)(d)3.3. An evaluation of alternative control strategies, including emission limitations, that includes consideration of costs. NR 445.13(3)(3) Reevaluation of listing decision. The owner or operator of an affected source or other interested party may submit a written request to, and the department may, reevaluate a determination to list or not to list a substance as a hazardous air contaminant in this chapter. The request shall provide new or additional information for the department’s consideration. In conducting a reevaluation, the department shall consider the criteria set forth in sub. (2) (b) and (c) and other information that it deems relevant. NR 445.13 HistoryHistory: CR 02-097: cr. Register June 2004 No. 582, eff. 7-1-04; correction in (1) (intro.) made under s. 13.92 (4) (b) 6., Stats., Register August 2008 No. 632. NR 445.14NR 445.14 Hazardous air contaminant studies. NR 445.14(1)(1) The department may conduct studies of individual substances or categories or sources of substances if it determines that unique complexities may warrant alternative approaches to those listed in this chapter, or if the department otherwise needs additional information to determine whether to list the contaminant in Table A, B or C of s. NR 445.07. NR 445.14 NoteNote: Unique complexities may be the result of the nature of the emissions, the sources of emissions, the management of emissions or other factors. The studies will not include a re-evaluation of the classification of the substance as reported by the American Conference of Government Industrial Hygienists, the United States environmental protection agency, the International Agency for Research on Cancer, or the National Toxicology Program.
NR 445.14(2)(2) The department staff shall, in consultation with affected industry, public health officials and other interested parties, undertake 2 separate studies of the emissions of amorphous and crystalline silica and wood dust. The studies shall evaluate the sources and amounts of emissions and alternative strategies for minimizing public health risks. The department staff shall report progress on the studies to the natural resources board by July 1, 2006. NR 445.14(3)(3) The department shall evaluate the listing of substances added to this chapter on July 1, 2004, using the criteria set forth in s. NR 445.13 (2) (d) prior to listing additional substances in Table A, B or C of s. NR 445.07. NR 445.14 HistoryHistory: CR 02-097: cr. Register June 2004 No. 582, eff. 7-1-04. NR 445.15NR 445.15 Additional provisions related to the control of hazardous air contaminants. NR 445.15(1)(1) The department staff shall consult with the department of health services prior to incorporating an alternative emission limit under s. NR 445.07 (1) (b) in an order or a permit. NR 445.15(2)(a)(a) If it is determined that emissions of a hazardous air contaminant from a facility do not comply with an applicable emission requirement for that contaminant, the owner or operator will not be out of compliance with respect to that contaminant if the owner or operator satisfies all of the following: NR 445.15(2)(a)1.1. Exercised due diligence and followed the procedures and other provisions in this subchapter for identifying and quantifying hazardous air contaminants. NR 445.15 NoteNote: Examples of procedures in this subchapter include stack thresholds, risk-based modeling and applicability criteria for sources of incidental emissions.
NR 445.15(2)(a)2.2. Based on the results of subd. 1., either concluded that no emission requirements applied to that contaminant or complied with all emission requirements that applied to that contaminant. NR 445.15(2)(a)3.3. Within 21 calendar days of making the determination that a hazardous air contaminant does not comply with an applicable emission requirement for that contaminant, submits the determination in writing to the department. NR 445.15(2)(a)4.4. By the later of the deadlines in s. NR 445.08 (6) or 90 calendar days after making the determination of noncompliance, certifies that the facility meets provisions applicable for the hazardous air contaminant. NR 445.15(2)(b)(b) After receipt of a written request, the department may, in writing, extend the deadline for achieving compliance with the deadline in par. (a) 4. NR 445.15 NoteNote: The address for submittal of information and requests for an extension from the deadline in par. (a) 4. is:
Wisconsin Department of Natural Resources
Bureau of Air Management
PO Box 7921
Madison WI 53707-7921
Attention: NR 445 Safe Harbor Determinations.
NR 445.15(2)(c)(c) Notwithstanding par. (a), the department retains the authority to order the owner or operator to come into compliance with applicable requirements within a specific time period shorter than the 90 calendar days whenever compliance in the shorter period of time is feasible and necessary to protect public health and the environment. NR 445.15(3)(3) The department shall review emissions reported under ch. NR 438 from sources of the contaminants listed in s. NR 410.04 (2) (b) 5. If the department determines that emissions are of such quantity, concentration or duration that a concentration greater than 2.4% of the contaminant’s threshold limit value-time weighted average established by the American Conference of Governmental Industrial Hygienists, in the Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices for 2000, incorporated by reference in s. NR 484.11 (2) (c), is expected to occur off of the source’s property, it may establish a limitation in a permit or order that will ensure the source does not cause concentrations off of the source’s property that exceed 2.4% of the threshold limit value-time weighted average for any consecutive 24-hour averaging period. NR 445.15(4)(4) The department staff shall consult with the department of health services prior to establishing an emission limit, in a permit or order, for any hazardous air contaminant that is not listed in Table A, B or C of s. NR 445.07. NR 445.15(5)(5) The department may establish emission limitations for hazardous air contaminants for sources in permits or general or special orders issued by the department. NR 445.15 HistoryHistory: CR 02-097: renum. from NR 445.06 (1) and (4) and NR 445.07 (5), am. (1) and (4), cr. (2) and (3) Register June 2004 No. 582, eff. 7-1-04; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register July 2008 No. 631; corrections in (1) and (4) made under s. 13.92 (4) (b) 6., Stats., Register August 2008 No. 632. NR 445.16NR 445.16 Notice of hazardous substance air spills. Persons possessing or controlling a hazardous substance shall immediately notify the department of any hazardous emission not in conformity with a permit or allowed by the department under chs. NR 400 to 499. Notice shall be given as required by s. 292.11, Stats., and ch. NR 706. NR 445.16 NoteNote: The owner or operator of a facility is responsible for determining whether a substance released (or spilled) is considered a hazardous substance as defined in s. 292.01 (5), Stats., and whether that hazardous substance was released to the environment. Section NR 706.05 (1) (a) contains language that assists in making such a determination. If the facility owner or operator determines that a release of a hazardous substance to the environment has occurred, the spills law, s. 292.11, Stats. and the rules contained in ch. NR 706 apply. Both ch. 292, Stats., and ch. NR 706 contain exemptions to the spill reporting requirements. In addition, s. NR 706.07 (2) (b) 1., 2., 3. and 4. contain language specifying when those exemptions do not apply, including impacts or threats to the environment, human health or safety. Other regulations, permits, and reporting requirements, including s. NR 439.03 (4) and ch. NR 438, may also apply to the hazardous substance release. NR 445.16 HistoryHistory: Renum. from NR 154.06 and am., Register, September, 1986, No. 369, eff. 10-1-86; renum. from NR 445.05, Register, September, 1988, No. 393, eff. 10-1-88; correction made under s. 13.93 (2m) (b) 7. Stats., Register, September, 1988, No. 393; am., Register, November, 1999, No. 527, eff. 12-1-99; CR 02-097: renum. from NR 445.08 Register June 2004 No. 582, eff. 7-1-04.
