Section NR 409.01 - Applicability; purpose; and scope(1) APPLICABILITY. (a) Each of the following emissions units is an affected unit and any source that includes such a unit shall be an affected source subject to the requirements of the acid rain program: 1. A unit listed in Table 1 of 40 CFR 73.10(a).2. An existing unit that is identified in Table 2 or 3 of 40 CFR 73.10 and any other existing utility unit, except a unit excluded under par. (b).3. A utility unit, except a unit excluded under par. (b), that:b. Did not serve a generator with a nameplate capacity greater than 25 MWe on November 15, 1990 but serves such a generator after November 15, 1990.c. Was a simple cycle combustion turbine on November 15, 1990 but adds or uses auxiliary firing after November 15, 1990.d. Was an exempt cogeneration facility under par. (b) 4. but during any 3 calendar year period after November 15, 1990 sold, to a utility power distribution system, an annual average of more than one-third of its potential electrical out-put capacity and more than 219,000 MWe-hrs electric output, on a gross basis.e. Was an exempt qualifying facility under par. (b) 5. but, at any time after the later of November 15, 1990 or the date the facility commences commercial operation, fails to meet the definition of a qualifying facility as defined in s. NR 409.02.f. Was an exempt independent power production facility under par. (b) 6. but, at any time after the later of November 15, 1990 or the date the facility commences commercial operation, fails to meet the definition of independent power production facility.g. Was an exempt solid waste incinerator under par. (b) 7. but during any 3 calendar year period after November 15, 1990 consumes 20% or more of the total heat input, expressed on a Btu basis, as fossil fuel.(b) The following types of utility units are exempt from the requirements of this chapter and the acid rain program: 1. A simple cycle combustion turbine that commenced operation before November 15, 1990.2. Any unit that commenced commercial operation before November 15, 1990 and that did not, as of November 15, 1990, and does not serve a generator with a nameplate capacity of greater than 25 MWe.3. Any unit that, during 1985, did not serve a generator that produced electricity for sale and that did not, as of November 15, 1990, and does not serve a generator that produces electricity for sale.4. A cogeneration unit which: a. For a unit that commenced construction on or prior to November 15, 1990, was constructed for the purpose of supplying equal to or less than one-third its potential electrical output capacity or equal to or less than 219,000 MWe-hrs actual electric output on an annual basis to any utility power distribution system for sale on a gross basis. If the purpose of construction is not known, it is presumed to be consistent with the actual operation from 1985 to 1987. However, if in any 3 calendar year period after November 15, 1990, the unit sells to a utility power distribution system an annual average of more than one-third of its potential electrical output capacity and more than 219,000 MWe-hrs actual electric output on a gross basis, that unit is an affected unit, subject to the requirements of this chapter and the acid rain program.b. For a unit that commenced construction after November 15, 1990, supplies equal to or less than one-third its potential electrical output capacity or equal to or less than 219,000 MWe-hrs actual electric output on an annual basis to any utility power distribution system for sale on a gross basis. However, if in any 3 calendar year period after November 15, 1990, the unit sells to a utility power distribution system an annual average of more than one-third of its potential electrical output capacity and more than 219,000 MWe-hrs actual electric output on a gross basis, that unit is an affected unit, subject to the requirements of this chapter and the acid rain program.5. A qualifying facility that: a. Has, as of November 15, 1990, one or more qualifying power purchase commitments to sell at least 15% of its total planned net output capacity; andb. Consists of one or more units designated by the owner or operator with total installed net output capacity not exceeding 130% of the total planned net output capacity. If the emissions rates of the units are not the same, the administrator may exercise discretion to designate which units are exempt.6. An independent power production facility that:a. Has, as of November 15, 1990, one or more qualifying power purchase commitments to sell at least 15% of its total planned net output capacity; andb. Consists of one or more units designated by the owner or operator with total installed net output capacity not exceeding 130% of its total planned net output capacity. If the emissions rates of the units are not the same, the administrator may exercise discretion to designate which units are exempt.7. A solid waste incinerator, if more than 80%, on a Btu basis, of the annual fuel consumed at the incinerator is other than fossil fuels. For a solid waste incinerator which began operation before January 1, 1985, the average annual fuel consumption of non-fossil fuels for calendar years 1985 to 1987 shall be greater than 80% for an incinerator to be exempt. For a solid waste incinerator which began operation after January 1, 1985, the average annual fuel consumption of non-fossil fuels for the first 3 years of operation shall be greater than 80% for an incinerator to be exempt. If, during any 3 calendar year period after November 15, 1990, the incinerator consumes 20% or more of the total heat input, expressed on a Btu basis, as fossil fuel, the incinerator is an affected source under this chapter and the acid rain program.8. A unit that is not a utility unit.9. A unit for which an exemption under s. NR 409.04 or 409.05 is in 409.055 effect. Although the unit is not an affected unit, the unit shall be subject to the requirements of s. NR 409.04, 409.05 or 409.055, as applicable to the exemption.(c) For a determination of applicability, a certifying official of an owner or operator of any unit may petition the administrator under 40 CFR 72.6(c). The administrator's determination of applicability shall be binding upon the department, unless the petition is found to have contained significant errors or omissions.(d) All references to 40 CFR part 72, 40 CFR part 73, 40 CFR part 74, 40 CFR part 75, 40 CFR part 76, 40 CFR part 77 and 40 CFR part 78 in this chapter mean those parts of the code of federal regulations as in effect on July 1, 1998, except that in the case of CFR appendices incorporated by reference in ch. NR 484, if a more recent date is specified in the applicable section of ch. NR 484, that date shall apply.(2) PURPOSE. The purpose of this chapter is to establish certain general provisions and the acid rain portion of the operation permit program requirements for affected sources and affected units under the acid rain program, pursuant to title IV of the clean air act (42 USC 7651 to 7651 o), 40 CFR part 72 and s. 285.65(12), Stats.(3) SCOPE. The regulations under this chapter set forth certain generally applicable provisions under the acid rain program. The regulations also set forth requirements for obtaining and revising the acid rain portion of an operation permit issued by the department. The requirements under this chapter supplement, and in some cases modify, the requirements under chs. NR 406 and 407 as such requirements apply to affected sources under the acid rain program.Wis. Admin. Code Department of Natural Resources NR 409.01
Cr. Register, September, 1986, No. 369, eff. 10-1-86; am. (2), Register, May, 1992, No. 437, eff. 6-1-92; am. Register, December, 1993, No. 456, eff. 1-1-94; renum. (1) to NR 406.15(1), r. (2), cr. (1), (2), (3), Register, April, 1995, No. 472, eff. 5-1-95; cr. (1) (b) 9. and (d), am. (1) (c), Register, November, 1999, No. 527, eff. 12-1-99; correction in (2) made under s. 13.93(2m) (b) 7, Stats., Register, November, 1999, No. 527.