Sec. NR 407.09 - Permit content

ยง NR 407.09. Permit content

(1) STANDARD PERMIT REQUIREMENTS. Each permit issued under this chapter shall include, at a minimum, the following elements:

(a) Emission limitations and standards, including those operational requirements and limitations that are applied to assure compliance with all applicable requirements at the time of permit issuance, as follows:

1. The origin of and authority for each limitation, standard or requirement shall be specified and referenced and any difference in form as compared to the applicable requirement upon which the limitation, standard or requirement is based shall be identified.

2. Where an applicable requirement of the Act is more stringent than an applicable requirement of the acid rain program, both provisions shall be incorporated into the permit and shall be enforceable by the department and by EPA.

(b) The duration of the permit as follows:

1. The term of a part 70 source operation permit may not exceed 5 years.

2. The term of an operation permit issued to an affected source shall be fixed at 5 years.

3. The term of a non-part 70 source operation permit does not expire unless the department specifies an expiring term in the permit upon considering any of the following:

a. Ongoing or recurring non-compliance or enforcement action taken by the department or the administrator.

b. A request by the permittee.

c. A determination by the department.

4. The term specified by the department under subd. 3. for a non-part 70 source shall be at least 5 years from the date of the last issued initial or renewed operation permit. When establishing an expiration date, the department shall provide adequate time for the permit holder to prepare and submit a renewal application consistent with the timelines in s. NR 407.04(2).

(c) Monitoring, related recordkeeping and reporting requirements, as follows:

1. All applicable monitoring requirements, including:

a. All emissions monitoring, analysis procedures and test methods required under the applicable requirements.

b. Where the applicable requirement does not require periodic testing or instrumental or noninstrumental monitoring, periodic monitoring or testing sufficient to yield reliable data from the relevant time period that are representative of the stationary source's compliance with the permit. Monitoring or testing requirements shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement. Monitoring may consist of recordkeeping sufficient to meet the requirements of this subd. 1. b. Permits for non-part 70 sources shall contain the requirements in this subd. 1. b. only for those air contaminants emitted from an emissions unit, operation, or activity where the actual emissions exceed the levels in Table 3 in s. NR 407.05. Actual emissions used for this determination shall be those reported under ch. NR 438 for the most recent year prior to when the permit or renewal is issued.

c. As necessary, requirements concerning the use, maintenance, calibration and, where appropriate, installation of monitoring equipment or methods.

2. All applicable recordkeeping requirements in s. NR 439.04.

3. Reporting requirements consistent with all applicable requirements and including the following:

a. Submittal of reports required under s. NR 439.03(1) (b).

b. Prompt reporting of deviations from and violations of permit terms and conditions in accordance with s. NR 439.03(4), (5) and (6).

(d) A severability clause that states that, in the event of a successful challenge to any portion of the permit, all other portions of the permit remain valid and effective.

(e) A provision requiring the payment of fees required under ch. NR 410.

(f) Provisions stating the following:

1. The permittee has the duty to comply with all conditions of the permit. Any noncompliance with the operation permit constitutes a violation of the statutes and is grounds for enforcement action; for permit suspension, revocation or revision; or for denial of a permit renewal application.

2. It is not a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the permit.

3. The permit may be revised, revoked or suspended for cause under this chapter. The filing of a request by the permittee for a permit revision or for revocation, or the filing of notification of planned changes under s. NR 407.025 or of anticipated noncompliance, does not stay any permit condition.

4. The permit does not convey any property rights of any sort, or any exclusive privilege.

5. The permittee shall furnish to the department, within a reasonable time specified by the department, any information that the department may request in writing to determine whether cause exists to revise, revoke or suspend the permit or to determine compliance with the permit. Upon request, the permittee shall also furnish to the department copies of records required to be kept pursuant to the permit.

(2) SPECIAL PERMIT REQUIREMENTS. Each permit issued under this chapter shall include the following elements if they are applicable to a stationary source:

(a) For affected sources, conditions prohibiting emissions exceeding any allowances that the source lawfully holds under the acid rain program, including allowances allocated directly to the source through the acid rain program, and allowances obtained through the emissions trading provisions of the acid rain program, subject to the following qualifications:

1. No permit revision may be required for increases in emissions that are authorized by allowances acquired pursuant to the acid rain program, provided that the increases do not require a permit revision under any other applicable requirement.

2. No limit may be placed on the number of allowances that may be held by the stationary source.

3. A stationary source may not use allowances as a defense to noncompliance with any applicable requirement other than the requirements of the acid rain program.

4. Any acid rain allowance shall be accounted for according to the procedures established in the acid rain program.

(b) For those stationary sources which identify reasonably anticipated alternate operating scenarios in their applications, terms and conditions covering reasonably anticipated alternate operating scenarios that are approved by the department. The terms and conditions shall require all of the following:

1. The permittee, contemporaneously with making a change from one operating scenario to another, shall record in a log at the permitted facility a record of the scenario under which it is operating.

2. The source shall comply with all applicable requirements for each alternate operating scenario.

(c) For sources for which an internal offset has been approved by the department under s. NR 425.05, terms and conditions, if the permit applicant requests them, for the trading of emissions increases and decreases in the permitted facility, to the extent that the applicable requirements and internal offset approval allow for such trading without a case-by-case approval of each emissions trade.

(d) For stationary sources that have previously been issued an air pollution control permit, provisions consistent with any condition in that permit if the provisions are still applicable to that stationary source. Conditions which may be considered still applicable include, but are not limited to, the following:

1. Any best available control technology or lowest achievable emission rate limitations established under ch. NR 405, 408 or 445 or pursuant to parts C or D of title I of the Act (42 USC 7470 to 7492 or 7501 to 7515).

2. Any conditions that a permittee requested in order to avoid being considered a major source or major modification under ch. NR 405 or 408 or to avoid any other requirement that would otherwise be applicable to the source.

3. Any source-specific emission limits contained in a permit under any applicable requirement.

(3) FEDERALLY ENFORCEABLE REQUIREMENTS.

(a) Except as provided in par. (b), all terms and conditions in an operation permit for a part 70 source, including any provisions designed to limit a stationary source's potential to emit, are enforceable by the administrator under section 113 (a) of the Act (42 USC 7413(a)) and citizens under section 304 of the Act (42 USC 7604).

(b) Notwithstanding par. (a), the department shall specifically designate as not federally enforceable under the Act any terms and conditions included in the permit that are not required under the Act, under any of the Act's applicable requirements or under the state implementation plan.

(4) COMPLIANCE REQUIREMENTS.

(a) All operation permits shall contain the following provisions with respect to compliance:

1. Compliance testing, monitoring, reporting and recordkeeping requirements sufficient to assure compliance with the terms and conditions of the permit. Any document required under an operation permit and submitted to the department, including reports, shall contain a certification by a responsible official that meets the requirements of s. NR 407.05(4) (j).

2. Inspection and entry requirements in accordance with ss. 285.13(6) and 285.19, Stats., and s. NR 439.05.

3. Requirements for certifying compliance with terms and conditions contained in the permit, including emission limitations, standards and work practices. Permits shall include each of the following:

a. The required frequency of submission of compliance certifications, which shall be not less than annually or more frequently if specified in the applicable requirement or by the department.

b. Means for assessing or monitoring the compliance of the source with its emissions limitations, standards and work practices, except that for non-part 70 sources, the means need only be included to the extent needed to comply with sub. (1) (c).

c. A requirement that the compliance certification include the information listed in s. NR 439.03(8).

d. A requirement that all compliance certifications for part 70 sources be submitted to the administrator as well as to the department.

e. Additional provisions as may be required pursuant to sections 114 (a) (3) and 504 (b) of the Act (42 USC 7414(a) (3) and 7661c(b)).

(b) All operation permits for stationary sources which are not proposed to be in compliance with all applicable requirements at the time of permit issuance shall contain a compliance schedule as described in s. 285.64(1) (a) 1, Stats., and a schedule for submission of progress reports, consistent with the applicable compliance schedule. The progress reports shall be submitted at least semiannually, or more frequently if specified in the applicable requirement or by the department. Progress reports shall contain the following:

1. The dates specified in the permit for achieving the activities, milestones or compliance required in the compliance schedule, and the dates when the activities, milestones or compliance were achieved.

2. An explanation of why any dates in the compliance schedule were not or will not be met, and any preventive or corrective measures adopted.

(5) PERMIT SHIELD.

(a) An operation permit shall include a provision pursuant to and consistent with s. 285.62(10) (b), Stats.

(b) Neither s. 285.62(10) (b), Stats., nor any condition in a permit may alter or affect the following:

1. The authority of the administrator under section 303 of the Act (42 USC 7603).

2. The liability of an owner or operator of a stationary source for any violation of applicable requirements prior to or at the time of permit issuance.

3. The applicable requirements of the acid rain program.

4. The ability of EPA to obtain information from a source pursuant to section 114 of the Act (42 USC 7414).

(Cr. Register, December, 1993, No. 456, eff. 1-1-94; correction in (4) (a) 3. c. made under s. 13.93(2m) (b) 7, Stats., Register, April, 1995, No. 472; am. (4) (a) 3. c., Register, December, 1995, No. 480, eff. 1-1-96; am. (2) (b), Register, December, 1996, No. 492, eff. 1-1-97; am. (1) (f) 1., (4) (a) 1. and (b) (intro.), Register, December, 1997, No. 504, eff. 1-1-98; CR 02-097: am. (1) (c) 1. b., Register June 2004 No. 582, eff. 7-1-04; CR 09-020: am. (1) (a) 2., (2) (d) 1., (3), (4) (a) 3. e., (5) (b) 1. and 4. Register January 2010 No. 649, eff. 2-1-10. Amended by, CR 15-005: am. (1) (b) 1., cr. (1) (b) 3., 4., am. (1) (c) 1. b. Register November 2015 No. 719, eff. 12/1/2015.)

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