Chapter NR 409

NR 409.02(52)(c) (c) Any purchaser of power from an affected unit under a life-of-the-unit, firm power contractual arrangement. However, unless expressly provided for in a leasehold agreement, owner does not include a passive lessor, or a person who has an equitable interest through the lessor, whose rental payments are not based, either directly or indirectly, upon the revenues or income from the affected unit.

NR 409.02(52)(d) (d) With respect to any allowance tracking system general account, any person identified in the submission required by 40 CFR 73.31 (c) that is subject to the binding agreement for the authorized account representative to represent that person’s ownership interest with respect to allowances.

NR 409.02(53) (53) “Owner or operator” means any person who is an owner or who operates, controls or supervises an affected unit or affected source and shall include, but not be limited to, any holding company, utility system or plant manager of an affected unit or affected source.

NR 409.02(54) (54) “Permit revision” means a significant permit revision, fast track revision, administrative permit revision, automatic permit revision or permit revision by the department, as provided in s. NR 409.12.

NR 409.02(55) (55) “Phase I” means the acid rain program period beginning January 1, 1995 and ending December 31, 1999.

NR 409.02(56) (56) “Phase II” means the acid rain program period beginning January 1, 2000 and continuing into the future.

NR 409.02(56m) (56m) ‘‘Plug-in combustion controls” means the replacement, in a cell burner boiler, of existing cell burners by low NOx burners or low NOx burners with overfire air.

NR 409.02(57) (57) “Potential electrical output capacity” means the MWe capacity rating for the units which shall be equal to 33% of the maximum design heat input capacity of the steam generating unit, as calculated according to Appendix D of 40 CFR part 72, incorporated by reference in s. NR 484.04 (26).

NR 409.02(58) (58) “Power distribution system” means the portion of an electricity grid owned or operated by a utility that is dedicated to delivering electric energy to customers.

NR 409.02(59) (59) “Power purchase commitment” means a commitment or obligation of a utility to purchase electric power from a facility pursuant to any of the following:

NR 409.02(59)(a) (a) A power sales agreement.

NR 409.02(59)(b) (b) A state regulatory authority order requiring a utility to:

NR 409.02(59)(b)1. 1. Enter into a power sales agreement with the facility;

NR 409.02(59)(b)2. 2. Purchase from the facility; or

NR 409.02(59)(b)3. 3. Enter into arbitration concerning the facility for the purpose of establishing terms and conditions of the utility’s purchase of power.

NR 409.02(59)(c) (c) A letter of intent or similar instrument committing to purchase power, either actual electrical output or generator output capacity, from the source at a previously offered or lower price and a power sales agreement applicable to the source executed within the time frame established by the terms of the letter of intent but no later than November 15, 1993 or, where the letter of intent does not specify a time frame, a power sales agreement applicable to the source executed on or before November 15, 1993.

NR 409.02(59)(d) (d) A utility competitive bid solicitation that has resulted in the selection of the qualifying facility or independent power production facility as the winning bidder.

NR 409.02(60) (60) “Power sales agreement” means a legally binding agreement between a qualifying facility, independent power production facility or firm associated with the facility and a regulated electric utility that establishes the terms and conditions for the sale of power from the facility to the utility.

NR 409.02(61) (61) “Primary fuel or primary fuel supply” means the main fuel type, expressed in mmBtu, consumed by an affected unit for the applicable calendar year.

NR 409.02(61m) (61m) ‘‘Primary vendor” means the vendor of the NOx emission control system who has primary responsibility for providing the equipment, service and technical expertise necessary for detailed design, installation and operation of the controls, including process data, mechanical drawings, operating manuals or any combination thereof.

NR 409.02(62) (62) “Qualifying cogeneration facility” means a facility which produces electric energy and steam or forms of useful energy, such as heat which is used for industrial, commercial, heating or cooling purposes which:

NR 409.02(62)(a) (a) The federal energy regulatory commission determines, by rule, meets the requirements of this type of facility, including requirements for minimum size, fuel use, and fuel efficiency; and

NR 409.02(62)(b) (b) Is owned by a person not primarily engaged in the generation or sale of electric power, other than electric power solely from cogeneration facilities or small power production facilities.

NR 409.02(63) (63) “Qualifying facility” means a qualifying small power production facility or qualifying cogeneration facility.

NR 409.02(64) (64) “Qualifying phase I technology” means a technological system of continuous emission reduction that is demonstrated to achieve at least a 90% reduction in emissions of sulfur dioxide relative to the emissions that would have resulted from the use of fossil fuels that were not subject to treatment prior to combustion, as provided in 40 CFR 72.42.

NR 409.02(65) (65) “Qualifying power purchase commitment” means a power purchase commitment in effect as of November 15, 1990 without regard to changes to that commitment so long as:

NR 409.02(65)(a) (a) The identity of the electric output purchaser, the identity of the steam purchaser and the location of the facility, remain unchanged as of the date the facility commences commercial operation; and

NR 409.02(65)(b) (b) The terms and conditions of the power purchase commitment are not changed in such a way as to allow the costs of compliance with the acid rain program to be shifted to the purchaser.

NR 409.02(66) (66) “Qualifying repowering technology” means:

NR 409.02(66)(a) (a) Replacement of an existing coal-fired boiler with one of the clean coal technologies; or

NR 409.02(66)(b) (b) Any oil-fired or gas-fired unit that has been awarded clean coal technology demonstration funding as of January 1, 1991, by the U. S. department of energy.

NR 409.02(67) (67) “Qualifying small power production facility” means a facility which is an eligible solar, wind, waste or geothermal facility, or a facility which:

NR 409.02(67)(a) (a) Produces electric energy solely by the use, as a primary energy source, of biomass, waste, renewable resources, geothermal resources or any combination of these; and

NR 409.02(67)(b) (b) Has a power production capacity which, together with any other facilities located at the same site, as determined by the federal energy regulatory commission, is not greater than 80 MWe.

NR 409.02(67m) (67m) ‘‘Reburning” means reducing the coal and combustion air to the main burners and injecting a reburn fuel, such as gas or oil, to create a fuel-rich secondary combustion zone above the main burner zone and final combustion air to create a fuel-lean burnout zone; the formation of NOx is inhibited in the main burner zone due to the reduced combustion intensity, and NOx is destroyed in the fuel-rich secondary combustion zone by conversion to molecular nitrogen.

NR 409.02(68) (68) “Receive” or “receipt of” means the date the administrator or department comes into possession of information or correspondence, whether sent in writing or by authorized electronic transmission, as indicated in an official correspondence log, or by a notation made on the information or correspondence, by the administrator or department in the regular course of business.

NR 409.02(69) (69) “Recordation”, “record” or “recorded” means, with regard to allowances, the transfer of allowances by the administrator from one allowance tracking system account or subaccount to another.

NR 409.02(70) (70) “Reduced utilization” means a reduction, during any calendar year in phase I, in the heat input, expressed in millions of Btus for the calendar year, at a phase I unit below the unit’s baseline, where the reduction subjects the unit to the requirement to file a reduced utilization plan under 40 CFR 72.43.

NR 409.02(71) (71) “Reduced utilization plan” means a compliance plan submitted by the designated representative under 40 CFR 72.43 for the purpose of identifying an affected unit’s method of complying with the applicable sulfur dioxide and nitrogen oxides emission limitations.

NR 409.02(72) (72) “Repowering extension plan” means a compliance plan submitted by the designated representative under 40 CFR 72.44 for the purpose of identifying an affected unit’s method of complying with the applicable sulfur dioxide emission limitations.

NR 409.02(73) (73) “Schedule of compliance” means an enforceable sequence of actions, measures or operations designed to achieve or maintain compliance or correct non-compliance, with an applicable requirement of the acid rain program, including any applicable acid rain portion of an operation permit requirement.

NR 409.02(74) (74) “Secretary of energy” means the secretary of the United States department of energy or the secretary’s duly authorized representative.

NR 409.02(74h) (74h) ‘‘Selective catalytic reduction” means a noncombustion control technology that destroys NOx by injecting a reducing agent, e.g., ammonia, into the flue gas that, in the presence of a catalyst, e.g., vanadium, titanium or zeolite, converts NOx into molecular nitrogen and water.

NR 409.02(74p) (74p) ‘‘Selective noncatalytic reduction” means a noncombustion control technology that destroys NOx by injecting a reducing agent, e.g., ammonia, urea or cyanuric acid, into the flue gas, downstream of the combustion zone that converts NOx to molecular nitrogen, water and, when urea or cyanuric acid are used, to carbon dioxide (CO2).

NR 409.02(75) (75) “Simple cycle combustion turbine” means a unit that is a rotary engine driven by a gas under pressure that is created by the combustion of any fuel. This term includes combined cycle units without auxiliary firing. This term excludes combined cycle units with auxiliary firing, unless the unit did not use the auxiliary firing from 1985 to 1987 and does not use auxiliary firing at any time after November 15, 1990.

NR 409.02(76) (76) “Solid waste incinerator” means a distinct operating unit of any facility which combusts any solid waste material from commercial or industrial establishments or the general public, including single and multiple residences, hotels and motels. The term does not include incinerators or other units required to have a permit under 42 USC 6925. The term solid waste incinerator does not include:

NR 409.02(76)(a) (a) Materials recovery facilities, including primary or secondary smelters which combust waste for the primary purpose of recovering metals.

NR 409.02(76)(b) (b) Qualifying small power production facilities or qualifying cogeneration facilities which burn homogeneous waste, such as units which burn tires or used oil, but not including refuse-derived fuel, for the production of electric energy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the production of electric energy and steam or forms of useful energy, such as heat, which are used for industrial, commercial, heating or cooling purposes.

NR 409.02(76)(c) (c) Air curtain incinerators provided that the incinerators only burn wood wastes, yard wastes and clean lumber and that air curtain incinerators comply with opacity limitations established by the department and the administrator by rule.

NR 409.02(76m) (76m) ‘‘Stoker boiler” means a boiler that burns solid fuel in a bed, on a stationary or moving grate, that is located at the bottom of the furnace.

NR 409.02(77) (77) “Submit” or “serve” means to send or transmit a document, information or correspondence to the person specified in accordance with the applicable regulation in one of the following ways:

NR 409.02(77)(a) (a) In person.

NR 409.02(77)(b) (b) By the United States postal service.

NR 409.02(77)(c) (c) By other equivalent means of dispatch, or transmission, and delivery. Compliance with any“submission”, “service” or “mailing” deadline shall be determined by the date of dispatch, transmission or mailing and not the date of receipt.

NR 409.02(78) (78) “Substitution plan” means a compliance plan submitted by the designated representative under 40 CFR 72.41 for the purpose of identifying an affected unit’s method of complying with the applicable sulfur dioxide emission limitations.

NR 409.02(79) (79) “Substitution unit” means an affected unit, other than a unit under section 410 of the act (42 USC 7651i), that is designated as a phase I unit in a substitution plan under 40 CFR 72.41.

NR 409.02(79m) (79m) ‘‘Tangentially fired boiler” means a boiler that has coal and air nozzles mounted in each corner of the furnace where the vertical furnace walls meet. Both pulverized coal and air are directed from the furnace corners along a line tangential to a circle lying in a horizontal plane of the furnace.

NR 409.02(80) (80) “Total installed net output capacity” means the generator output capacity, excluding that portion of the electrical power actually used at the power production facility, as installed.

NR 409.02(81) (81) “Total planned net output capacity” means the planned generator output capacity, excluding that portion of the electrical power which is designed to be used at the power production facility, as specified under one or more qualifying power purchase commitments or contemporaneous documents as of November 15, 1990.

NR 409.02(81m) (81m) ‘‘Turbo-fired boiler” means a pulverized coal, wall-fired boiler with burners arranged on walls so that the individual flames extend down toward the furnace bottom and then turn back up through the center of the furnace.

NR 409.02(82) (82) “Unit” means a fossil fuel-fired combustion device.

NR 409.02(83) (83) “Unit account” means an allowance tracking system account, established by the administrator for an affected unit pursuant to 40 CFR 73.31 (a) or (b).

NR 409.02(84) (84) “Utility” means any person that sells electricity.

NR 409.02(85) (85) “Utility competitive bid solicitation” means a public request from a regulated utility for offers to the utility for meeting future generating needs. A qualifying facility or independent power production facility may be regarded as having been “selected” in the solicitation if the utility has named the facility as a project with which the utility intends to negotiate a power sales agreement.

NR 409.02(86) (86) “Utility regulatory authority” means an authority, board, commission or other entity, limited to the local-, state- or federal-level, whenever so specified, responsible for overseeing the business operations of utilities located within its jurisdiction, including, but not limited to, utility rates and charges to customers.

NR 409.02(87) (87) “Utility unit” means a unit owned or operated by a utility that serves a generator that produces electricity for sale or that, during 1985, served a generator that produced electricity for sale, except as provided in pars. (a) and (b):

NR 409.02(87)(a) (a) A unit that was in operation during 1985, but did not serve a generator that produced electricity for sale during 1985, and did not commence commercial operation on or after November 15, 1990 is not a utility unit for purposes of the acid rain program.

NR 409.02(87)(b) (b) A unit that cogenerates steam and electricity is not a utility unit for purposes of the acid rain program unless the unit is constructed for the purpose of supplying, or commences construction after November 15, 1990 and supplies, more than one-third of its potential electrical output capacity and more than 25 MWe output to any power distribution system for sale.

NR 409.02(88) (88) ‘‘Vertically fired boiler” means a dry bottom boiler with circular burners, or coal and air pipes, oriented downward and mounted on waterwalls that are horizontal or at an angle. This definition shall include dry bottom roof-fired boilers and dry bottom top-fired boilers, and shall exclude dry bottom arch-fired boilers and dry bottom turbo-fired boilers.

NR 409.02(89) (89) ‘‘Wall-fired boiler” means a boiler that has pulverized coal burners arranged on the walls of the furnace. The burners have discrete, individual flames that extend perpendicularly into the furnace area.

NR 409.02(90) (90) ‘‘Wet bottom” means having ash removal from the furnace in a molten state. The term ‘‘wet bottom boiler” shall include: wet bottom wall-fired boilers, including wet bottom turbo-fired boilers; and wet bottom boilers otherwise meeting the definition of vertically fired boilers, including wet bottom arch-fired boilers, wet bottom roof-fired boilers, and wet bottom top-fired boilers. The term ‘‘wet bottom boiler” shall exclude cyclone boilers and tangentially fired boilers.

NR 409.02 History History: Cr. Register, September, 1986, No. 369, eff. 10-1-86; r. and recr., renum. from NR 407.02 (5) to (12), (14), (15), (18), (19), (21), (23) to (30), (33), (34) to be (10), (11), (15), (19), (22), (26), (28),(29), (37), (38), (47), (48), (50), (55), (56), (64), (66), (69) to (72), (78), (79) and am. (72), (78), (79), Register, April, 1995, No. 472, eff. 5-1-95; am. (76) (intro.), Register, December, 1995, No. 480, eff. 1-1-96; am. (2) (a) 2. a., r. (6), Register, December, 1996, No. 492, eff. 1-1-97; cr. (2) (b), (12g), (12m), (12s), (17m), (20m), (21m), (32g), (32m), (32s), (35h), (35p), (39m), (43h), (43p), (44m), (46h), (46p), (49m), (51g), (51m), (51s), (56m), (61m), (67m), (74h), (74p), (76m), (79m), (81m), (88), (89), (90), am. (4), (12), (20), (34), (59) (c), (77) (b) and (c), Register, November, 1999, No. 527, eff. 12-1-99; CR 02-146: am. (34) Register October 2003 No. 574, eff. 11-1-03.

NR 409.04 NR 409.04 New units exemption.

NR 409.04(1) (1) Applicability. This section applies to any new utility unit that has not previously lost an exemption under sub. (6) (d) and that, in each year starting with the first year for which the unit is to be exempt, satisfies all of the following:

NR 409.04(1)(a) (a) Serves during the entire year, except for any period before the unit commenced commercial operation, one or more generators with total nameplate capacity of 25 MWe or less.

NR 409.04(1)(b) (b) Burns fuel that does not include any coal or coal-derived fuel, except coal-derived gaseous fuel with a total sulfur content no greater than natural gas.

NR 409.04(1)(c) (c) Burns gaseous fuel with an annual average sulfur content of 0.05% or less by weight, as determined under sub. (4) and nongaseous fuel with an annual average sulfur content of 0.05% or less by weight, as determined under sub. (4).

NR 409.04(2) (2) Exemptions for non-allocated units.

NR 409.04(2)(a) (a) Any new utility unit that meets the requirements of sub. (1) and that is not allocated any allowances under 40 CFR part 73 shall be exempt from this chapter, except for the provisions of this section, 40 CFR 72.2 to 72.6, and 40 CFR 72.10 to 72.13.

NR 409.04(2)(b) (b) The exemption under par. (a) shall be effective on January 1 of the first full calendar year for which the unit meets the requirements of sub. (1). By December 31 of the first year for which the unit is to be exempt under this section, a statement signed by the designated representative, or, if no designated representative has been authorized, a certifying official of each owner of the unit shall be submitted to the department, and a copy of the statement shall be submitted to the administrator. The statement shall be submitted in a format prescribed by the administrator, shall identify the unit, state the nameplate capacity of each generator served by the unit and the fuels currently burned or expected to be burned by the unit and their sulfur content by weight, and state that the owners and operators of the unit will comply with sub. (6).

NR 409.04(2)(c) (c) After receipt of the statement under par. (b), the department shall revise under s. NR 409.12 (4) the operation permit covering the source at which the unit is located, if the source has an operation permit, to add the provisions and requirements of the exemption under sub. (1), par. (a), and subs. (4) and (6).

NR 409.04(3) (3) Exemptions for allocated units.

NR 409.04(3)(a) (a) Any new utility unit that meets the requirements of sub. (1) and that is allocated one or more allowances under 40 CFR part 73 shall be exempt from this chapter, except for the provisions of this section, 40 CFR 72.2 to 72.6, and 40 CFR 72.10 to 72.13, if the designated representative, or, if no designated representative has been authorized, a certifying official of each owner of the unit submits to the department and the administrator a statement, in a format prescribed by the administrator, that does all of the following:

NR 409.04(3)(a)1. 1. Identifies the unit and states the nameplate capacity of each generator served by the unit and the fuels currently burned or expected to be burned by the unit and their sulfur content by weight.

NR 409.04(3)(a)2. 2. States that the owners and operators of the unit will comply with sub. (6).

NR 409.04(3)(a)3. 3. Surrenders allowances equal in number to, and with the same or earlier compliance use date as, all of those allocated to the unit under 40 CFR part 73 for the first year that the unit is to be exempt under this section and for each subsequent year.

NR 409.04(3)(a)4. 4. Surrenders any proceeds for allowances under subd. 3. withheld from the unit under 40 CFR 73.10.

NR 409.04(3)(b) (b) The administrator deducts from the unit’s allowance tracking system account allowances under 40 CFR 72.7(c)(1)(i)(C) and receives proceeds under 40 CFR 72.7(c)(1)(i)(D). Upon completion of any deductions and receipt of any proceeds, the administrator will close the unit’s allowance tracking system account and notify the designated representative, or certifying official, and the department.

NR 409.04(3)(c) (c) The exemption under par. (a) shall be effective on January 1 of the first full calendar year for which the requirements of sub. (1) and par. (a) are met. After notification by the administrator under 40 CFR 72.7(c)(1)(ii) the department shall revise under s. NR 409.12 (4) the operation permit covering the source at which the unit is located, if the source has such a permit, to add the provisions and requirements of the exemption under sub. (1), par. (a), and subs. (4) and (6).