Chapter NR 460

NR 460.05(6)(f)5. 5. Except as provided in subd. 2., the results of continuous monitoring by a COMS that indicate that the opacity at the time visual observations were made was not in excess of the emission standard are probative but not conclusive evidence of the actual opacity of an emission, provided that the affected source proves that, at the time of the alleged violation, the instrument used was properly maintained, as specified in s. NR 460.07 (3), and met Performance Specification 1 in Appendix B of 40 CFR part 60, incorporated by reference in s. NR 484.04 (21), and that the resulting data have not been altered in any way.

NR 460.05(6)(g) (g) Finding of compliance. The department shall make a finding concerning an affected source’s compliance with an opacity or visible emission standard upon obtaining all the compliance information required by the relevant standard, including the written reports of the results of the performance tests required by s. NR 460.06, the results of Method 9 of Appendix A of 40 CFR part 60, incorporated by reference in s. NR 484.04 (13), or another required opacity or visible emission test method, the observer certification required by par. (e), and the continuous opacity monitoring system results, whichever are applicable, and any information available to the department needed to determine whether proper operation and maintenance practices are being used.

NR 460.05(7) (7) Extension of compliance with emission standards.

NR 460.05(7)(a) (a) Until a compliance date extension has been granted by the administrator or the department under this subsection or 40 CFR 63.6 (i), the owner or operator of an affected source subject to the requirements of this section shall comply with all applicable requirements of 40 CFR part 63 and chs. NR 460 to 469.

NR 460.05(7)(b) (b) Pursuant to section 112 (i) (6) of the act (42 USC 7412 (i) (6)), if the owner or operator of an existing source has installed BACT, as defined in section 169 (3) of the act (42 USC 7479 (3)), or technology required to meet a LAER, as defined in section 171 of the act (42 USC 7501), prior to the promulgation of an emission standard in 40 CFR part 63 applicable to the source and the same pollutant or stream of pollutants controlled pursuant to the BACT or LAER installation, the department may grant the owner or operator an extension of the compliance date with the emission standard that will apply until the date 5 years after the date on which the installation was achieved, as determined by the department.

NR 460.05 Note Note: BACT and LAER are more broadly defined under s. 285.01 (12) and (23), Stats.

NR 460.05(7)(c) (c)

NR 460.05(7)(c)1. 1.

NR 460.05(7)(c)1.a. a. The owner or operator of an existing source who is unable to comply with a relevant standard established under 40 CFR part 63 pursuant to section 112 (d) of the act (42 USC 7412 (d)) may request that the department grant an extension allowing the source up to one additional year to comply with the standard, if the additional period is necessary for the installation of controls. The owner or operator of an affected source who has requested a compliance date extension under this subsection or 40 CFR 63.6 (i) and who is otherwise required to obtain a part 70 permit shall apply for the permit or apply to have the source’s part 70 permit revised to incorporate the conditions of the compliance date extension. The conditions of a compliance date extension granted under this subsection will be incorporated into the affected source’s part 70 permit.

NR 460.05 Note Note: Under 40 CFR 63.6 (i) (4) (i) (A), the administrator may provide an additional extension of up to 3 years for mining waste operations, if the 1-year extension of the compliance date is insufficient to dry and cover mining waste in order to reduce emissions of any hazardous air pollutant.

NR 460.05(7)(c)1.b. b. Any request under this subsection for an extension of compliance with a relevant standard shall be submitted in writing to the department no later than 120 days prior to the affected source’s compliance date, as specified in subs. (2) and (3), except as provided for in subd. 1. c. Non-frivolous requests submitted under this subsection will stay the applicability of the rule as to the emission points in question until the time the request is granted or denied. A denial will be effective as of the date of denial. Emission standards established under 40 CFR part 63 may specify alternative dates for the submittal of requests for an extension of compliance if alternatives are appropriate for the source categories affected by those standards.

NR 460.05(7)(c)1.c. c. An owner or operator may submit a compliance extension request after the date specified in subd. 1. b. provided the need for the compliance extension arose after that date, and before the otherwise applicable compliance date, and the need arose due to circumstances beyond reasonable control of the owner or operator. This request shall include, in addition to the information required in par. (e) 1., a statement of the reasons additional time is needed and the date when the owner or operator first learned of the problems. Non-frivolous requests submitted under this subsection will stay the applicability of the rule as to the emission points in question until the time the request is granted or denied. A denial will be effective as of the original compliance date.

NR 460.05(7)(c)2. 2. The owner or operator of an existing source unable to comply with a relevant standard established under 40 CFR part 63 pursuant to section 112 (f) of the Act (42 USC 7412 (f)) may request that the department grant an extension allowing the source up to 2 years after the standard’s effective date to comply with the standard. The department may grant an extension if it finds that the additional period is necessary for the installation of controls and that steps will be taken during the period of the extension to assure that the health of persons will be protected from imminent endangerment. Any request for an extension of compliance with a relevant standard under this subsection shall be submitted in writing to the department not later than 90 calendar days after the effective date of the relevant standard.

NR 460.05(7)(d) (d) The owner or operator of an existing source that has installed BACT or technology required to meet LAER, as specified in par. (b), prior to the promulgation of a relevant emission standard in 40 CFR part 63 may request that the department grant an extension allowing the source 5 years from the date on which the installation was achieved, as determined by the department, to comply with the standard. Any request for an extension of the compliance date for a relevant standard under this subsection shall be submitted in writing to the department not later than 120 days after the promulgation date of the standard. The department may grant an extension if it finds that the installation of BACT or technology to meet LAER controls the same pollutant or stream of pollutants that would be controlled at that source by the relevant emission standard.

NR 460.05(7)(e) (e) The request for a compliance date extension under par. (c) shall include all of the following information:

NR 460.05(7)(e)1. 1. A description of the controls to be installed to comply with the standard.

NR 460.05(7)(e)2. 2. A compliance schedule, including the date by which each step toward compliance will be reached. At a minimum, the list of dates shall include all of the following:

NR 460.05(7)(e)2.a. a. The date by which on-site construction, installation of emission control equipment or a process change is planned to be initiated.

NR 460.05(7)(e)2.b. b. The date by which final compliance is to be achieved.

NR 460.05(7)(em) (em) The request for a compliance extension under par. (d) shall include all information needed to demonstrate to the department’s satisfaction that the installation of BACT or technology to meet LAER controls the same pollutant or stream of pollutants that would be controlled at that source by the relevant emission standard.

NR 460.05(7)(f) (f) Advice on requesting an extension of a compliance date may be obtained from the department.

NR 460.05(7)(g) (g) Based on the information provided in any request made under pars. (c) to (em), or other information, the department may grant an extension of the compliance date for an emission standard, as specified in pars. (c) and (d).

NR 460.05(7)(h) (h) An extension shall be in writing and shall do all of the following:

NR 460.05(7)(h)1. 1. Identify each affected source covered by the extension.

NR 460.05(7)(h)2. 2. Specify the termination date of the extension.

NR 460.05(7)(h)3. 3. Specify the dates by which steps toward compliance are to be taken, if appropriate.

NR 460.05(7)(h)4. 4. Specify other applicable requirements to which the compliance extension applies, such as performance tests.

NR 460.05(7)(h)5. 5. Specify any additional conditions that the department deems necessary to assure any of the following:

NR 460.05(7)(h)5.a. a. Under par. (c), the installation of the necessary controls and protection of human health during the extension period.

NR 460.05(7)(h)5.b. b. Under par. (d), the proper operation and maintenance of the installed controls during the extension period.

NR 460.05(7)(i) (i) The owner or operator of an existing source that has been granted a compliance date extension under par. (g) may be required to submit to the department progress reports indicating whether the steps toward compliance outlined in the compliance schedule have been reached. The contents of the progress reports and the dates by which they shall be submitted shall be specified in the written compliance date extension granted under par. (h).

NR 460.05(7)(j) (j)

NR 460.05(7)(j)1. 1. The department shall notify the owner or operator in writing of approval or intention to deny approval of a request for an extension of compliance within 30 calendar days after receipt of sufficient information to evaluate a request submitted under par. (c) 1. or (d). The department shall notify the owner or operator in writing of the status of the application, that is, whether the application contains sufficient information to make a determination within 30 calendar days after receipt of the original application and within 30 calendar days after receipt of any supplementary information that is submitted. The 30-day approval or denial period shall begin after the owner or operator has been notified in writing that the application is complete.

NR 460.05(7)(j)2. 2. When notifying the owner or operator that an application is not complete, the department shall specify the information needed to complete the application and provide notice of opportunity for the applicant to present, in writing, within 30 calendar days after notification of the incomplete application, additional information or arguments to the department to enable further action on the application.

NR 460.05(7)(j)3. 3. Before denying any request for a compliance date extension, the department shall notify the owner or operator in writing of the department’s intention to issue the denial, together with all of the following:

NR 460.05(7)(j)3.a. a. Notice of the information and findings on which the intended denial is based.

NR 460.05(7)(j)3.b. b. Notice of opportunity for the owner or operator to present in writing, within 15 calendar days after notification of the intended denial, additional information or arguments to the department before further action on the request.

NR 460.05(7)(j)4. 4. The department’s final determination to deny any request for an extension shall be in writing and shall set forth the specific grounds on which the denial is based. The final determination shall be made within 30 calendar days after presentation of additional information or argument, if the application is complete, or within 30 calendar days after the final date specified for the presentation if no presentation is made.

NR 460.05(7)(k) (k)

NR 460.05(7)(k)1. 1. The department shall notify the owner or operator in writing of approval or intention to deny approval of a request for a compliance date extension within 30 calendar days after receipt of sufficient information to evaluate a request submitted under par. (c) 2. The 30-day approval or denial period will begin after the owner or operator has been notified in writing that the application is complete. The department shall notify the owner or operator in writing of the status of the application, that is, whether the application contains sufficient information to make a determination, within 15 calendar days after receipt of the original application and within 15 calendar days after receipt of any supplementary information that is submitted.

NR 460.05(7)(k)2. 2. When notifying the owner or operator that an application is not complete, the department shall specify the information needed to complete the application and provide notice of opportunity for the applicant to present, in writing, within 15 calendar days after notification of the incomplete application, additional information or arguments to the department to enable further action on the application.

NR 460.05(7)(k)3. 3. Before denying any request for a compliance date extension, the department shall notify the owner or operator in writing of the department’s intention to issue the denial, together with all of the following:

NR 460.05(7)(k)3.a. a. Notice of the information and findings on which the intended denial is based.

NR 460.05(7)(k)3.b. b. Notice of opportunity for the owner or operator to present in writing, within 15 calendar days after notification of the intended denial, additional information or arguments to the department before further action on the request.

NR 460.05(7)(k)4. 4. A final determination to deny any request for an extension shall be in writing and shall set forth the specific grounds on which the denial is based. The final determination shall be made within 30 calendar days after presentation of additional information or argument, if the application is complete, or within 30 calendar days after the final date specified for the presentation if no presentation is made.

NR 460.05(7)(L) (L) The department may terminate an extension of compliance at an earlier date than specified if any specification under par. (h) 3. or 4. is not met.

NR 460.05(7)(L)1. 1. Upon making a determination to terminate, the department shall notify, in writing, the owner or operator of the department’s determination to terminate, together with both of the following:

NR 460.05(7)(L)1.a. a. Notice of the reason for termination.

NR 460.05(7)(L)1.b. b. Notice of opportunity for the owner or operator to present in writing, within 15 calendar days after notification of the determination to terminate, additional information or arguments to the department before further action on the termination.

NR 460.05(7)(L)2. 2. A termination of an extension of compliance shall be in writing and shall set forth the specific grounds on which the termination is based. The termination shall be made within 30 calendar days after presentation of additional information or arguments, or within 30 calendar days after the final date specified for the presentation if no presentation is made.

NR 460.05 History History: Cr. Register, March, 1997, No. 495, eff. 4-1-97; corrections in (4) (c) 4., (6) (b) 1. b. and c., (d) 1. b., (f) 2., 5., and (g) made under s. 13.93 (2m) (b) 7., Stats., Register March 2002 No. 555; CR 05-039: am. (1) (a) (intro.), (2) (a), (c) 1., (d), (f), (3) (b), (4) (a) 1., 2., (c) 1., 3. to 6., 7. (intro.), b., c., and 8., (5), (6) (a), (7) (c) 1. b., 2., (j) 1. and (L), r. and recr. (1) (a) 1. and 2., renum. (3) (c) 1., (7) (e) 2. b. and d. to be (3) (c), (7) (e) 2. a. and b. and am. (3) (c) and (7) (e) 2. a., r. (3) (c) 2., (4) (b), (7) (e) 2. a. and c., 3. and 4., cr. (3m), (4) (c) 7. d. and 9., (7) (c) 1. c., (L) 1. and 2., Register February 2006 No. 602, eff. 3-1-06; CR 07-105: am. (4) (a) 2., (c) 1. (intro.), 3. to 5., 9., r. (4) (c) 2. Register December 2008 No. 636, eff. 1-1-09.

NR 460.06 NR 460.06 Performance testing requirements.

NR 460.06(1) (1) Applicability and performance test dates.

NR 460.06(1)(a) (a) Unless otherwise specified, this section applies to the owner or operator of an affected source required to do performance testing, or another form of compliance demonstration, under a relevant standard.

NR 460.06(1)(b) (b) Except as provided in par. (d), if required to do performance testing by a relevant standard, and unless a waiver of performance testing is obtained under this section or the conditions of sub. (5) apply, the owner or operator of the affected source shall perform the tests within 180 days of the compliance date.

NR 460.06(1)(c) (c) Except as provided in par. (d), when an emission standard promulgated under 40 CFR part 63 is more stringent than the standard as proposed, the owner or operator of a new or reconstructed source subject to that standard for which construction or reconstruction is commenced between the proposal and promulgation dates of the standard shall comply with performance testing requirements within 180 days after the standard’s effective date, or within 180 days after startup of the source, whichever is later. If the promulgated standard is more stringent than the proposed standard, the owner or operator may choose to demonstrate compliance with either the proposed or the promulgated standard. If the owner or operator chooses to comply with the proposed standard initially, the owner or operator shall conduct a second performance test within 3 years and 180 days after the effective date of the standard, or after startup of the source, whichever is later, to demonstrate compliance with the promulgated standard.

NR 460.06(1)(d) (d) If a force majeure is about to occur, occurs or has occurred for which the affected owner or operator intends to assert a claim of force majeure, all of the following apply:

NR 460.06(1)(d)1. 1. The owner or operator shall notify the department in writing as soon as practicable following the date the owner or operator first knew, or, through due diligence, should have known that the event may cause or caused a delay in testing beyond the regulatory deadline specified in pars. (b) and (c), chs. NR 462 to 469 or a permit, but the notification shall occur before the performance test deadline unless the initial force majeure or a subsequent force majeure delays the notice, in which case the notification shall occur as soon as practicable.

NR 460.06(1)(d)2. 2. The owner or operator shall provide to the department a written description of the force majeure and a rationale for attributing the delay in testing beyond the regulatory deadline to the force majeure, describe the measures taken or to be taken to minimize the delay and identify a date by which the owner or operator proposes to conduct the performance test. The performance test shall be conducted as soon as practicable after the force majeure occurs.

NR 460.06(1)(d)3. 3. The decision as to whether or not to grant an extension to the performance test deadline is solely within the discretion of the department. The department shall notify the owner or operator in writing of approval or disapproval of the request for an extension as soon as practicable.

NR 460.06(1)(d)4. 4. Until an extension of the performance test deadline has been approved by the department under subd. 3., the owner or operator of the affected facility remains strictly subject to the requirements of chs. NR 460 to 469 and all applicable permits.

NR 460.06(2) (2) Department oversight of performance testing. Performance tests shall be conducted in accordance with s. NR 439.07 (2) to (4) and (6).

NR 460.06(3) (3) Performance testing facilities. If required to do performance testing, the owner or operator of each new MACT source and, at the request of the department, the owner or operator of each existing source, shall provide all of the following performance testing facilities:

NR 460.06(3)(a) (a) Sampling ports adequate for test methods applicable to the source. This includes all of the following:

NR 460.06(3)(a)1. 1. Constructing the air pollution control system such that volumetric flow rates and pollutant emission rates can be accurately determined by applicable test methods and procedures.

NR 460.06(3)(a)2. 2. Providing a stack or duct free of cyclonic flow during performance tests, as demonstrated by applicable test methods and procedures.

NR 460.06(3)(b) (b) Safe sampling platforms.

NR 460.06(3)(c) (c) Safe access to sampling platforms.

NR 460.06(3)(d) (d) Utilities for sampling and testing equipment.

NR 460.06(3)(e) (e) Any other facilities that the department deems necessary for safe and adequate testing of a source.

NR 460.06(4) (4) Conduct of performance tests.

NR 460.06(4)(a) (a) Performance tests shall be conducted under such conditions as the department specifies to the owner or operator based on normal, representative performance of the affected source. Operations during periods of startup, shutdown and malfunction do not constitute representative conditions for the purpose of a performance test, nor will emissions in excess of the level of the relevant standard during periods of startup, shutdown and malfunction be considered a violation of the relevant standard unless otherwise specified in the relevant standard or a determination of noncompliance is made under s. NR 460.05 (4). Upon request, the owner or operator shall make available to the department such records as may be necessary to determine the conditions of performance tests.

NR 460.06(4)(b) (b) Performance tests shall be conducted and data shall be reduced in accordance with the test methods and procedures in this section, in each relevant standard, and, if required, in applicable appendices of parts 51, 60, 61 and 63 of title 40 of the code of federal regulations, incorporated by reference in s. NR 484.04 (9), (13), (21), (23) and (25), unless any of the following actions is taken:

NR 460.06(4)(b)1. 1. The department specifies or approves, in specific cases, the use of a test method with minor changes in methodology. Changes may be approved in conjunction with approval of the site-specific test plan specified in sub. (2).

NR 460.06(4)(b)2. 2. The department approves the use of an intermediate change or alternative, or the administrator approves the use of a major change or alternative to a test method, the results of which the department or administrator has determined to be adequate for indicating whether a specific affected source is in compliance.

NR 460.06 Note Note: Under 40 CFR 63.91 (g) only EPA can approve major alternatives to test methods.

NR 460.06(4)(b)3. 3. The department approves shorter sampling times or smaller sample volumes when necessitated by process variables or other factors.

NR 460.06(4)(b)4. 4. The department waives the requirement for performance tests because the owner or operator of an affected source has demonstrated by other means to the department’s satisfaction that the affected source is in compliance with the relevant standard.

NR 460.06(4)(c) (c) Unless otherwise specified in a relevant standard or test method, each performance test shall consist of 3 separate runs using the applicable test method. Each run shall be conducted for the time and under the conditions specified in the relevant standard. For the purpose of determining compliance with a relevant standard, the arithmetic mean of the results of the 3 runs shall apply. Upon receiving approval from the department, results of a test run may be replaced with results of an additional test run in the event that any of the following occurs:

NR 460.06(4)(c)1. 1. A sample is accidentally lost after the testing team leaves the site.

NR 460.06(4)(c)2. 2. Conditions occur in which one of the 3 runs must be discontinued because of forced shutdown.

NR 460.06(4)(c)3. 3. Extreme meteorological conditions occur.

NR 460.06(4)(c)4. 4. Other circumstances occur that are beyond the owner or operator’s control.

NR 460.06(5) (5) Use of an alternative test method.

NR 460.06(5)(a) (a) Until authorized to use an intermediate or major change or alternative to a test method, the owner or operator of an affected source remains subject to the requirements of this section and the relevant standard.

NR 460.06 Note Note: Under 40 CFR 63.91 (g) only EPA can approve major alternatives to test methods.

NR 460.06(5)(b) (b) The owner or operator of an affected source required to do performance testing by a relevant standard may use an alternative test method from that specified in the standard provided that the owner or operator does all of the following:

NR 460.06(5)(b)1. 1. Notifies the department of his or her intention to use an alternative test method at least 60 days before the performance test is scheduled to begin.

NR 460.06(5)(b)2. 2. Uses Method 301 in Appendix A of 40 CFR part 63, incorporated by reference in s. NR 484.04 (25), to validate the alternative test method. This may include the use of specific procedures of Method 301 if use of the procedures is sufficient to validate the alternative test method.