NR 460.03 HistoryHistory: Cr. Register, March, 1997, No. 495, eff. 4-1-97; CR 05-039: renum. (2) (n), (o) and (3) (e) to be (2) (o), (p) and (3) (f), cr. (2) (n) and (3) (e) Register February 2006 No. 602, eff. 3-1-06; CR 05-116: cr. (3) (g), (h) and (i) Register November 2006 No. 611, eff. 12-1-06. NR 460.04NR 460.04 Prohibited activities and circumvention. NR 460.04(1)(a)(a) No owner or operator subject to the provisions of chs. NR 460 to 469 may operate any affected source in violation of the requirements of chs. NR 460 to 469. Affected sources subject to and in compliance with either an extension of compliance or an exemption from compliance are not in violation of the requirements of chs. NR 460 to 469. An extension of compliance may be granted by the administrator under 40 CFR part 63, by the department or by the president under section 112 (i) (4) of the Act (42 USC 7412 (i) (4)). NR 460.04(1)(b)(b) No owner or operator subject to the provisions of chs. NR 460 to 469 may fail to keep records, notify, report or revise reports as required under chs. NR 460 to 469. NR 460.04(1)(b)2.2. If a part 70 permit has been issued to that source, whether the permit has been revised or modified to incorporate the emission standard. NR 460.04(2)(2) Circumvention. No owner or operator subject to the provisions of chs. NR 460 to 469 may build, erect, install or use any article, machine, equipment or process to conceal an emission that would otherwise constitute noncompliance with a relevant standard. Concealment includes, but is not limited to, all of the following: NR 460.04(2)(a)(a) The use of diluents to achieve compliance with a relevant standard based on the concentration of a pollutant in the effluent discharged to the atmosphere. NR 460.04(2)(b)(b) The use of gaseous diluents to achieve compliance with a relevant standard for visible emissions. NR 460.04(2)(c)(c) Fragmentation after November 15, 1990 which divides ownership of an operation within the same facility among various owners where there is no real change in control. The owner and operator may not use fragmentation or phasing of reconstruction activities to avoid becoming subject to new source requirements. NR 460.04 HistoryHistory: Cr. Register, March, 1997, No. 495, eff. 4-1-97; CR 05-039: renum. (1) (a) (intro.) to be (1) (a) and am., r. (1) (a) 1. to 3., (c) and (d), am. (2) (c) Register February 2006 No. 602, eff. 3-1-06. NR 460.05NR 460.05 Compliance with standards and maintenance requirements. NR 460.05(1)(a)(a) The requirements in this section apply to the owner or operator of affected sources for which any relevant standard has been established pursuant to section 112 of the Act (42 USC 7412) and the applicability of the requirements is set out in accordance with 40 CFR 63.1 (a) (4) unless one of the following applies: NR 460.05(1)(a)1.1. The administrator or the department has granted an extension of compliance consistent with sub. (7). NR 460.05(1)(a)2.2. The president of the United States has granted an exemption from compliance with any relevant standard in accordance with section 112 (i) (4) of the Act (42 USC 7412 (i) (4)). NR 460.05(1)(b)(b) If an area source, that otherwise would be subject to an emission standard or other requirement established under 40 CFR part 63 or under chs. NR 460 to 469 if it were a major source, subsequently increases its emissions of hazardous air pollutants, or its potential to emit hazardous air pollutants, such that the source is a major source, the source shall be subject to the relevant emission standard or other requirement. NR 460.05(2)(2) Compliance dates for new and reconstructed sources. NR 460.05(2)(a)(a) Except as specified in pars. (c) and (d), the owner or operator of a new or reconstructed affected source for which construction or reconstruction commences after proposal of a relevant standard that has an initial startup before the effective date of a relevant standard established under 40 CFR part 63 pursuant to section 112 (d), (f) or (h) of the Act (42 USC 7412 (d), (f) or (h)) shall comply with the standard not later than the standard’s effective date. NR 460.05(2)(b)(b) Except as specified in pars. (c) and (d), the owner or operator of a new or reconstructed source that has an initial startup after the effective date of a relevant standard established under 40 CFR part 63 pursuant to section 112 (d), (f) or (h) of the act (42 USC 7412 (d), (f) or (h)) shall comply with the standard upon startup of the source. NR 460.05(2)(c)(c) The owner or operator of an affected source for which construction or reconstruction is commenced after the proposal date of a relevant standard established under 40 CFR part 63 pursuant to section 112 (d), (f) or (h) of the act (42 USC 7412 (d), (f) or (h)) but before federal promulgation of the standard shall comply with the relevant emission standard not later than the date 3 years after the federal promulgation date if: NR 460.05(2)(c)1.1. The promulgated standard, that is, the relevant standard, is more stringent than the proposed standard; for purposes of this subdivision, a finding that controls or compliance methods are “more stringent” shall include control technologies or performance criteria and compliance or compliance assurance methods that are different but are substantially equivalent to those required by the promulgated rule, as determined by the administrator or his or her authorized representative. NR 460.05(2)(c)2.2. The owner or operator complies with the standard as proposed during the 3-year period immediately after the effective date. NR 460.05(2)(d)(d) The owner or operator of an affected source for which construction or reconstruction is commenced after the proposal date of a relevant standard established pursuant to section 112 (d) of the Act (42 USC 7412 (d)) but before the proposal date of a relevant standard established pursuant to section 112 (f) (42 USC 7412 (f)) may not be required to comply with the section 112 (f) emission standard until the date 10 years after the date construction or reconstruction is commenced, except that, if the section 112 (f) standard is promulgated more than 10 years after construction or reconstruction is commenced, the owner or operator shall comply with the standard as provided in pars. (a) and (b). NR 460.05(2)(e)(e) The owner or operator of a new MACT source that is subject to the compliance requirements of par. (c) or (d) shall notify the department in accordance with s. NR 460.08 (4). NR 460.05(2)(f)(f) When an area source becomes a major source by the addition of equipment or operations that meet the definition of new affected source in the relevant standard, the portion of the existing facility that is a new affected source shall comply with all requirements of that standard applicable to new MACT sources. The source owner or operator shall comply with the relevant standard upon startup. NR 460.05(3)(a)(a) After the effective date of a relevant standard established under 40 CFR part 63 pursuant to section 112 (d) or (h) of the act (42 USC 7412 (d) or (h)), the owner or operator of an existing source shall comply with the standard by the compliance date established in the applicable subparts of 40 CFR part 63. NR 460.05 NoteNote: Except as otherwise provided for in section 112 of the act (42 USC 7412), the compliance date established for an existing source in an applicable subpart of 40 CFR part 63 will not exceed 3 years after the effective date of the standard. NR 460.05(3)(b)(b) If an existing source is subject to a standard established under 40 CFR part 63 pursuant to section 112 (f) of the Act (42 USC 7412 (f)), the owner or operator shall comply with the standard by the date 90 days after the standard’s effective date, or by the date specified in an extension granted to the source by the department under sub. (7) (c) 2., whichever is later. NR 460.05(3)(c)(c) Except as provided in sub. (2) (f), the owner or operator of an area source that increases its emissions of, or its potential to emit, hazardous air pollutants such that the source becomes a major source shall be subject to relevant standards for existing sources. These sources shall comply by the date specified in the standards for existing area sources that become major sources. If no compliance date is specified in the standard, the source shall have a period of time to comply with the relevant emission standard that is equivalent to the compliance period specified in the relevant standard for sources in existence at the time the standard becomes effective. NR 460.05(3m)(3m) Determination of whether a relocated source is reconstructed or existing. As indicated in s. NR 460.02 (10), the removal of all equipment comprising an affected source from an existing location and reinstallation of the equipment at a new location does not constitute construction. The owner or operator of an existing affected source that is relocated may elect not to reinstall minor ancillary equipment including, but not limited to, piping, ductwork and valves. However, removal and reinstallation of an affected source will be construed as reconstruction if it satisfies the criteria for reconstruction as defined in s. NR 460.02 (32). The costs of replacing minor ancillary equipment shall be considered in determining whether the existing affected source is reconstructed. NR 460.05(4)(a)1.1. At all times, including periods of startup, shutdown and malfunction, the owner or operator shall operate and maintain any affected source, including associated air pollution control and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. During a period of startup, shutdown or malfunction, the general duty to minimize emissions requires that the owner or operator reduce emissions from the affected source to the greatest extent which is consistent with safety and good air pollution control practices. The general duty to minimize emissions during a period of startup, shutdown or malfunction does not require the owner or operator to achieve emission levels that would be required by the applicable standard at other times if this is not consistent with safety and good air pollution control practices, nor does it require the owner or operator to make any further efforts to reduce emissions if levels required by the applicable standard have been achieved. Determination of whether the operation and maintenance procedures are being used will be based on information available to the department, which may include monitoring results; review of operation and maintenance procedures, including the startup, shutdown and malfunction plan required in par. (c); review of operation and maintenance records; and inspections of the source. NR 460.05(4)(a)2.2. Malfunctions shall be corrected as soon as practicable after their occurrence. To the extent that an unexpected event arises during a startup, shutdown or malfunction, an owner or operator shall comply by minimizing emissions during any startup, shutdown and malfunction event consistent with safety and good air pollution control practices. NR 460.05(4)(a)3.3. Operation and maintenance requirements established pursuant to section 112 of the act (42 USC 7412) are enforceable independent of emissions limitations or other requirements in relevant standards. NR 460.05(4)(c)1.1. The owner or operator of an affected source shall develop a written startup, shutdown and malfunction plan that meets the requirements of s. NR 439.11 and describes, in detail, procedures for operating and maintaining the source during periods of startup, shutdown and malfunction and a program of corrective action for malfunctioning process, air pollution control and monitoring equipment used to comply with the relevant standard. The startup, shutdown and malfunction plan does not need to address any scenario that would not cause the source to exceed an applicable emission limitation in the relevant standard. This plan shall be developed by the owner or operator by the source’s compliance date for that relevant standard. The plan shall be designed to achieve all of the following: NR 460.05(4)(c)1.a.a. Ensure that, at all times, the owner or operator operates and maintains each affected source, including associated air pollution control and monitoring equipment, in a manner which satisfies the general duty to minimize emissions established by par. (a) 1. NR 460.05(4)(c)1.b.b. Ensure that owners or operators are prepared to correct malfunctions as soon as practicable after their occurrence in order to minimize excess emissions of hazardous air pollutants. NR 460.05(4)(c)1.c.c. Reduce the reporting burden associated with periods of startup, shutdown and malfunction, including corrective action taken to restore malfunctioning process and air pollution control equipment to its normal or usual manner of operation. NR 460.05(4)(c)3.3. When actions taken by the owner or operator during a startup or shutdown, and the startup or shutdown causes the source to exceed any applicable emission limitation in the relevant emission standards, or during a malfunction, including actions taken to correct a malfunction, are consistent with the procedures specified in the affected source’s startup, shutdown and malfunction plan, the owner or operator shall keep records for that event which demonstrate that the procedures specified in the plan were followed. These records may take the form of a checklist, or other effective form of recordkeeping that confirms conformance with the startup, shutdown and malfunction plan and describes the actions taken for that event. In addition, the owner or operator shall keep records of these events as specified in s. NR 460.09 (2), including records of the occurrence and duration of each startup or shutdown, if the startup or shutdown causes the source to exceed any applicable emission limitation in the relevant emission standards, and of the occurrence and duration of each malfunction of operation and each malfunction of the air pollution control and monitoring equipment. Furthermore, the owner or operator shall confirm that actions taken during the relevant reporting period during periods of startup, shutdown and malfunction were consistent with the affected source’s startup, shutdown and malfunction plan in the semiannual, or more frequent, startup, shutdown and malfunction report required in s. NR 460.09 (4) (e). NR 460.05(4)(c)4.4. If an action taken by the owner or operator during a startup, shutdown or malfunction, including an action taken to correct a malfunction, is not consistent with the procedures specified in the affected source’s startup, shutdown and malfunction plan, and the source exceeds any applicable emission limitation in the relevant emission standard, then the owner or operator shall record the actions taken for that event and shall report the actions taken within 2 working days after commencing actions inconsistent with the plan, followed by a letter within 7 working days after the end of the event, in accordance with s. NR 460.09 (4) (e), unless the owner or operator makes alternative reporting arrangements in advance with the department. NR 460.05(4)(c)5.5. The owner or operator shall maintain at the affected source a current startup, shutdown and malfunction plan and shall make the plan available upon request for inspection and copying by the department. In addition, if the startup, shutdown and malfunction plan is subsequently revised as provided in subd. 8., the owner or operator shall maintain at the affected source each previous version of the startup, shutdown and malfunction plan, and shall make each previous version available for inspection and copying by the department for a period of 5 years after revision of the plan. If at any time after adoption of a startup, shutdown and malfunction plan the affected source ceases operation or is otherwise no longer subject to the provisions of 40 CFR part 63, the owner or operator shall retain a copy of the most recent plan for 5 years from the date the source ceases operation or is no longer subject to 40 CFR part 63 and shall make the plan available upon request for inspection and copying by the department. The department may at any time request in writing that the owner or operator submit a copy of any startup, shutdown and malfunction plan, or a portion of the plan, which is maintained at the affected source or in the possession of the owner or operator. Upon receipt of a request, the owner or operator shall promptly submit a copy of the requested plan, or a portion of the plan, to the department. The owner or operator may elect to submit the required copy of any startup, shutdown and malfunction plan to the department in an electronic format. If the owner or operator claims that any portion of a startup, shutdown and malfunction plan is confidential business information entitled to protection from disclosure under 114 (c) of the Act (42 USC 7414 (c)) or 40 CFR 2.301, the material which is claimed as confidential shall be clearly designated in the submission. NR 460.05(4)(c)6.6. To satisfy the requirements of this section to develop a startup, shutdown and malfunction plan, the owner or operator may use the affected source’s standard operating procedures manual, or an occupational safety and health administration or other plan, provided the alternative plans meet all the requirements of this section and are made available for inspection or submitted when requested by the department. NR 460.05(4)(c)7.7. Based on the results of a determination made under par. (a) 1., the department may require that an owner or operator of an affected source make changes to the startup, shutdown and malfunction plan for that source. The department shall require appropriate revisions to a startup, shutdown and malfunction plan, if the department finds that the plan does any of the following: NR 460.05(4)(c)7.a.a. Does not address a startup, shutdown or malfunction event that has occurred. NR 460.05(4)(c)7.b.b. Fails to provide for the operation of the source, including associated air pollution control and monitoring equipment, during a startup, shutdown or malfunction event in a manner consistent with the general duty to minimize emissions established by par. (a) 1. NR 460.05(4)(c)7.c.c. Does not provide adequate procedures for correcting malfunctioning process and air pollution control and monitoring equipment as quickly as practicable. NR 460.05(4)(c)8.8. The owner or operator may periodically revise the startup, shutdown and malfunction plan for the affected source as necessary to satisfy the requirements of 40 CFR part 63 or to reflect changes in equipment or procedures at the affected source. Unless the department provides otherwise, the owner or operator may make the revisions to the startup, shutdown and malfunction plan without prior approval by the administrator or the department. However, each revision to a startup, shutdown and malfunction plan shall be reported in the semiannual report required by s. NR 460.09 (4) (e). If the startup, shutdown and malfunction plan fails to address or inadequately addresses an event that meets the characteristics of a malfunction but was not included in the startup, shutdown and malfunction plan at the time the owner or operator developed the plan, the owner or operator shall revise the startup, shutdown and malfunction plan within 45 days after the event to include detailed procedures for operating and maintaining the source during similar malfunction events and a program of corrective action for similar malfunctions of process or air pollution control and monitoring equipment. In the event that the owner or operator makes any revision to the startup, shutdown and malfunction plan which alters the scope of the activities at the source which are deemed to be a startup, shutdown or malfunction, or otherwise modifies the applicability of any emission limit, work practice requirement, or other requirement in a standard established under 40 CFR part 63, the revised plan may not take effect until after the owner or operator has provided a written notice describing the revision to the department. NR 460.05(4)(c)9.9. The title V permit for an affected source shall require that the owner or operator develop a startup, shutdown and malfunction plan which conforms to the provisions of this chapter, but may do so by citing the relevant chapter or the relevant parts of this subsection. However, any revisions made to the startup, shutdown and malfunction plan in accordance with the procedures established by this chapter may not be deemed to constitute permit revisions under ch. NR 406 or 407 and the elements of the startup, shutdown and malfunction plan may not be considered an applicable requirement as defined in ss. NR 406.02 and 407.02. Moreover, none of the procedures specified by the startup, shutdown and malfunction plan for an affected source shall be deemed to fall within the permit shield provision in section 504 (f) of the Act (42 USC 7661c (f)). NR 460.05(5)(5) Compliance with nonopacity emission standards. The nonopacity emission standards in 40 CFR part 63 or in chs. NR 460 to 469 shall apply at all times except during periods of startup, shutdown and malfunction, and as otherwise specified in an applicable subpart of 40 CFR part 63 or in an applicable provision of chs. NR 460 to 469. If a startup, shutdown or malfunction of one portion of an affected source does not affect the ability of particular emission points within other portions of the affected source to comply with the nonopacity emission standards set forth in this chapter, then those emission points shall still be required to comply with the nonopacity emission standards in 40 CFR part 63 or in chs. NR 460 to 469. NR 460.05(6)(6) Compliance with opacity and visible emission standards. NR 460.05(6)(a)(a) Applicability. The opacity and visible emission standards in 40 CFR part 63 and in chs. NR 460 to 469 shall apply at all times except during periods of startup, shutdown and malfunction, and as otherwise specified in an applicable subpart of 40 CFR part 63 or in an applicable provision of chs. NR 460 to 469. If a startup, shutdown or malfunction of one portion of an affected source does not affect the ability of particular emission points within other portions of the affected source to comply with the opacity and visible emission standards in 40 CFR part 63 or in chs. NR 460 to 469, then those emission points shall still be required to comply with the opacity and visible emission standards in 40 CFR part 63 or in chs. NR 460 to 469. NR 460.05(6)(b)1.a.a. Whenever a continuous opacity monitoring system (COMS) is required to be installed to determine compliance with numerical opacity emission standards in 40 CFR part 63 and in chs. NR 460 to 469, compliance with opacity emission standards in 40 CFR part 63 and in chs. NR 460 to 469 shall be determined by using the results from the COMS. NR 460.05(6)(b)1.b.b. Whenever an opacity emission test method is not specified, compliance with opacity emission standards in 40 CFR part 63 and in chs. NR 460 to 469 shall be determined by conducting observations in accordance with Method 9 in Appendix A of 40 CFR part 60, incorporated by reference in s. NR 484.04 (13), or the method specified in par. (f) 2. NR 460.05(6)(b)2.2. If an affected source undergoes opacity or visible emission testing at startup to obtain an operation permit under ch. NR 407, the results of the testing may be used to demonstrate compliance with a relevant standard if all of the following occur: NR 460.05(6)(b)2.a.a. The opacity or visible emission test was conducted within a reasonable amount of time before a performance test is required to be conducted under the relevant standard. NR 460.05(6)(b)2.b.b. The opacity or visible emission test was conducted under representative operating conditions for the source. NR 460.05(6)(b)2.c.c. The opacity or visible emission test was conducted and the resulting data were reduced using EPA-approved test methods and procedures, as specified in s. NR 460.06 (4). NR 460.05(6)(c)(c) Notification of opacity or visible emission observations. The owner or operator of an affected source shall notify the department in writing of the anticipated date for conducting opacity or visible emission observations in accordance with s. NR 460.08 (6), if the observations are required for the source by a relevant standard. NR 460.05(6)(d)(d) Conduct of opacity or visible emission observations. When a relevant standard under 40 CFR part 63 includes an opacity or visible emission standard, the owner or operator of an affected source shall comply with the following: NR 460.05(6)(d)1.1. For the purpose of demonstrating initial compliance, opacity or visible emission observations shall be conducted concurrently with the initial performance test required in s. NR 460.06 unless one of the following conditions applies: NR 460.05(6)(d)1.a.a. If no performance test under s. NR 460.06 is required, opacity or visible emission observations shall be conducted within 60 days after achieving the maximum production rate at which a new or reconstructed source will be operated, but not later than 120 days after initial startup of the source, or within 120 days after the effective date of the relevant standard in the case of new MACT sources that start up before the standard’s effective date. If no performance test under s. NR 460.06 is required, opacity or visible emission observations shall be conducted within 120 days after the compliance date for an existing or modified source. NR 460.05(6)(d)1.b.b. If visibility or other conditions prevent the opacity or visible emission observations from being conducted concurrently with the initial performance test required under s. NR 460.06, or within the time period specified in subd. 1. a., the source’s owner or operator shall reschedule the opacity or visible emission observations as soon after the initial performance test, or time period, as possible, but not later than 30 days thereafter, and shall advise the department of the rescheduled date. The rescheduled opacity or visible emission observations shall be conducted, to the extent possible, under the same operating conditions that existed during the initial performance test conducted under s. NR 460.06. The visible emissions observer shall determine whether visibility or other conditions prevent the opacity or visible emission observations from being made concurrently with the initial performance test in accordance with procedures contained in Method 9 or Method 22 in Appendix A of 40 CFR part 60, incorporated by reference in s. NR 484.04 (13). NR 460.05(6)(d)2.2. For the purpose of demonstrating initial compliance, the minimum total time of opacity observations shall be 3 hours, 30 6-minute averages, for the performance test or other required set of observations, including fugitive-type emission sources subject only to an opacity emission standard. NR 460.05(6)(d)3.3. The owner or operator of an affected source to which an opacity or visible emission standard in 40 CFR part 63 applies shall conduct opacity or visible emission observations in accordance with the provisions of this section, record the results of the evaluation of emissions, and report to the department the opacity or visible emission results in accordance with the provisions of s. NR 460.09 (4). NR 460.05(6)(d)4.4. Opacity readings of portions of plumes that contain condensed, uncombined water vapor may not be used for purposes of determining compliance with opacity emission standards. NR 460.05(6)(e)(e) Availability of records. The owner or operator of an affected source shall make available, upon request by the department, records that the department deems necessary to determine the conditions under which the visual observations were made and shall provide evidence indicating proof of current visible emission observer certification.
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