Chapter NR 409

NR 409.01(1)(a)3.d. 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.

NR 409.01(1)(a)3.e. 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.

NR 409.01(1)(a)3.f. 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.

NR 409.01(1)(a)3.g. 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.

NR 409.01(1)(b) (b) The following types of utility units are exempt from the requirements of this chapter and the acid rain program:

NR 409.01(1)(b)1. 1. A simple cycle combustion turbine that commenced operation before November 15, 1990.

NR 409.01(1)(b)2. 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.

NR 409.01(1)(b)3. 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.

NR 409.01(1)(b)4. 4. A cogeneration unit which:

NR 409.01(1)(b)4.a. 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.

NR 409.01(1)(b)4.b. 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.

NR 409.01(1)(b)5. 5. A qualifying facility that:

NR 409.01(1)(b)5.a. 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; and

NR 409.01(1)(b)5.b. b. 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.

NR 409.01(1)(b)6. 6. An independent power production facility that:

NR 409.01(1)(b)6.a. 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; and

NR 409.01(1)(b)6.b. b. 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.

NR 409.01(1)(b)7. 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.

NR 409.01(1)(b)8. 8. A unit that is not a utility unit.

NR 409.01(1)(b)9. 9. A unit for which an exemption under s. NR 409.04, 409.05 or 409.055 is in 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.

NR 409.01(1)(c) (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.

NR 409.01(1)(d) (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.

NR 409.01(2) (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 7651o), 40 CFR part 72 and s. 285.65 (12), Stats.

NR 409.01(3) (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.

NR 409.01 History History: 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.

NR 409.02 NR 409.02 Definitions. The definitions contained in chs. NR 400, 406 and 407 and title IV of the act (42 USC 7651 to 7651o) apply to the terms used in this chapter. In addition, the following definitions apply to the terms used in this chapter:

NR 409.02(1) (1) “Acid rain compliance option” means one of the methods of compliance used by an affected unit under the acid rain program as described in a compliance plan submitted and approved in accordance with s. NR 409.09 or regulations implementing section 407 of the act (42 USC 7651f).

NR 409.02(2) (2) “Acid rain emissions limitation” means:

NR 409.02(2)(a) (a) For the purposes of sulfur dioxide emissions:

NR 409.02(2)(a)1. 1. The tonnage equivalent of the allowances authorized to be allocated to an affected unit for use in a calendar year under section 404 (a) (1) and (3) of the act (42 USC 7651c) or the basic phase II allowance allocations authorized to be allocated to an affected unit for use in a calendar year;

NR 409.02(2)(a)2. 2. As adjusted:

NR 409.02(2)(a)2.a. a. By allowances allocated by the administrator pursuant to sections 403, 405 (a) (2) and (3), (b) (2), (c) (4), (d) (3) and (h) (2) and 406 of the act (42 USC 7651b, 7651d and 7651e);

NR 409.02(2)(a)2.b. b. By allowances allocated by the administrator pursuant to subpart D of 40 CFR part 72; and thereafter

NR 409.02(2)(a)2.c. c. By allowance transfers to or from the compliance subaccount for that unit that were recorded or properly submitted for recordation by the allowance transfer deadline as provided in 40 CFR 73.35, after deductions and other adjustments are made pursuant to 40 CFR 73.34 (c).

NR 409.02(2)(b) (b) For purposes of nitrogen oxides emissions, the applicable limitation under s. NR 409.065.

NR 409.02(3) (3) “Acid rain emissions reduction requirement” means a requirement under the acid rain program to reduce the emissions of sulfur dioxide or nitrogen oxides from a unit to a specified level or by a specified percentage.

NR 409.02(4) (4) “Acid rain portion of an operation permit” means the legally binding written document, or portion of an operation permit, issued by the department which specifies the acid rain program requirements applicable to an affected source and to the owners and operators and the designated representative of the affected source or the affected unit.

NR 409.02(5) (5) “Actual SO2 emissions rate” means the annual average sulfur dioxide emissions rate for the unit, expressed in lb/mmBtu, for the specified calendar year; provided that, if the unit is listed in the national allowance database (NADB), the “1985 actual SO2 emissions rate” for the unit shall be the rate specified by the administrator in the NADB under the data field “SO2RTE.”

NR 409.02(7) (7) “Allocate” or “allocation” means the initial crediting of an allowance by the administrator to an allowance tracking system unit account or general account.

NR 409.02(8) (8) “Allowance deduction” or “deduct”, when referring to allowances, means the permanent withdrawal of allowances by the administrator from an allowance tracking system compliance subaccount to account for the number of tons of SO2 emitted from an affected unit for the calendar year, for tonnage emissions estimates calculated for periods of missing data as provided in 40 CFR part 75, or for any other allowance surrender obligations of the acid rain program.

NR 409.02(9) (9) “Allowances held” or “hold allowances” means the allowances recorded by the administrator or submitted to the administrator for recordation in accordance with 40 CFR 73.50, in an allowance tracking system account.

NR 409.02(10) (10) “Allowance tracking system” means the acid rain program system by which the administrator allocates, records, deducts and tracks allowances.

NR 409.02(11) (11) “Allowance tracking system account” means an account in the allowance tracking system established by the administrator for purposes of allocating, holding, transferring and using allowances.

NR 409.02(12) (12) “Allowance transfer deadline” means midnight of March 1 (or February 29 in a leap year) or, if March 1 (or February 29 in a leap year) is not a business day, midnight of the first business day thereafter and is the deadline by which allowances may be submitted for recordation in an affected unit’s compliance subaccount for the purposes of meeting the unit’s acid rain emissions limitation requirements for sulfur dioxide for the previous calendar year.

NR 409.02(12g) (12g) ‘‘Alternative contemporaneous annual emission limitation” means the maximum allowable NOx emission rate (on a pound per million BTU, annual average basis) assigned to an individual unit in a NOx emissions averaging plan pursuant to s. NR 409.065 (7).

NR 409.02(12m) (12m) ‘‘Alternative technology” means a control technology for reducing NOx emissions that is outside the scope of the definition of low NOx burner technology. Alternative technology does not include overfire air as applied to wall-fired boilers or separated overfire air as applied to tangentially fired boilers.

NR 409.02(12s) (12s) ‘‘Arch-fired boiler” means a dry bottom boiler with circular burners, or coal and air pipes, oriented downward and mounted on waterwalls that are at an angle significantly different from the horizontal axis and the vertical axis. This definition shall include only the following units: Holtwood unit 17, Hunlock unit 6, and Sunbury units 1A, 1B, 2A, and 2B. This definition shall exclude dry bottom turbo-fired boilers.

NR 409.02 Note Note: Arch-fired boilers that are wet bottom boilers are specifically excluded from this definition.

NR 409.02(13) (13) “Authorized account representative” means a responsible natural person who is authorized, in accordance with 40 CFR part 73, to transfer and otherwise dispose of allowances held in an allowance tracking system general account; or, in the case of a unit account, the designated representative of the owners and operators of the affected unit.

NR 409.02(14) (14) “Auxiliary firing” means combustion of a fuel that supplements the primary fuel, when more than 5% of an affected unit’s heat input is provided by the supplemental fuel.

NR 409.02(15) (15) “Baseline”, for purposes of the acid rain program, means the annual average quantity of fossil fuel consumed by a unit, measured in millions of Btus for calendar years 1985 through 1987; provided that in the event that a unit is listed in the NADB, the baseline will be calculated for each unit-generator pair that includes the unit, and the unit’s baseline will be the sum of such unit-generator baselines. The unit-generator baseline shall be as provided in the NADB under the data field “BASE8587”, as adjusted by the outage hours listed in the NADB under the data field “OUTAGEHR” in accordance with the following equation:

where “months not on line” is the number of months during January 1985 through December 1987 prior to the commencement of firing for units that commenced firing in that period, i.e., the number of months, in that period, prior to the on-line month listed under the data field “BLRMNONL” and the on-line year listed in the data field “BLRYRONL” in the NADB.

NR 409.02(16) (16) “Basic phase II allowance allocations” means:

NR 409.02(16)(a) (a) For calendar years 2000 to 2009, allocations of allowances made by the administrator pursuant to sections 403 and 405 (b) (1), (3) and (4); (c) (1), (2), (3) and (5); (d) (1), (2), (4) and (5); (e); (f); (g) (1), (2), (3), (4) and (5); (h) (1); (i); and (j) of the act (42 USC 7651b and 7651d).

NR 409.02(16)(b) (b) For each calendar year beginning in 2010, allocations of allowances made by the administrator pursuant to sections 403 and 405 (b) (1), (3) and (4); (c) (1), (2), (3) and (5); (d) (1), (2), (4) and (5); (e); (f); (g) (1), (2), (3), (4) and (5); (h) (1) and (3); (i); and (j) of the act (42 USC 7651b and 7651d).

NR 409.02(17) (17) “Boiler” means an enclosed fossil or other fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam or any other medium.

NR 409.02(17m) (17m) ‘‘Cell burner boiler” means a wall-fired boiler that utilizes 2 or 3 circular burners combined into a single vertically oriented assembly that results in a compact, intense flame.

NR 409.02 Note Note: Any low NOx retrofit of a cell burner boiler that reuses the existing cell burner, close-coupled wall opening configuration would not change the designation of the unit as a cell burner boiler.

NR 409.02(18) (18) “Certificate of representation” means the completed and signed submission required by 40 CFR 72.20, for certifying the appointment of a designated representative for an affected source or a group of identified affected sources authorized to represent the owners and operators of the sources and of the affected units at the sources with regard to matters under the acid rain program.

NR 409.02(19) (19) “Clean coal technology” means atmospheric or pressurized fluidized bed combustion, integrated gasification combined cycle, magnetohydrodynamics, direct and indirect coal-fired turbines, integrated gasification fuel cells, or as determined by the administrator, in consultation with the secretary of the U.S. department of energy, a derivative of one or more of these technologies, and any other technology capable of controlling multiple combustion emissions simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction relative to the performance of technology in widespread commercial use as of November 15, 1990.

NR 409.02(20) (20) “Coal-fired” means, except for the purposes of applying s. NR 409.065, the combustion of fuel consisting of coal or any coal-derived fuel, except a coal-derived gaseous fuel with a sulfur content no greater than natural gas, alone or in combination with any other fuel, where a unit is coal-fired if it uses coal or coal-derived fuel as its primary fuel, expressed in mmBtu; provided that, if the unit is listed in the NADB, the primary fuel is the fuel listed in the NADB under the data field “PRIMEFUEL”.

NR 409.02(20m) (20m) ‘‘Coal-fired utility unit” means a utility unit in which the combustion of coal (or any coal-derived fuel) on a Btu basis exceeds 50.0% of its annual heat input during the following calendar year: for Phase I units, in calendar year 1990; and, for Phase II units, in calendar year 1995 or, for a Phase II unit that did not combust any fuel that resulted in the generation of electricity in calendar year 1995, in any calendar year during the period 1990-1995. For the purposes of s. NR 409.065, this definition shall apply notwithstanding the definition of ‘‘coal-fired” in sub. (20).

NR 409.02(21) (21) “Cogeneration unit” means a unit that has equipment used to produce electric energy and forms of useful thermal energy, such as heat or steam, for industrial, commercial, heating or cooling purposes, through the sequential use of energy.

NR 409.02(21m) (21m) ‘‘Combustion controls” means technology that minimizes NOx formation by staging fuel and combustion air flows in a boiler. This definition shall include low NOx burners, overfire air or low NOx burners with overfire air.

NR 409.02(22) (22) “Commence commercial operation” means to have begun to generate electricity for sale, including the sale of test generation.

NR 409.02(23) (23) “Commence construction” means that an owner or operator has either undertaken a continuous program of construction or has entered into a contractual obligation to undertake and complete, within a reasonable time, a continuous program of construction.

NR 409.02(24) (24) “Commence operation” means to have begun any mechanical, chemical or electronic process, including startup of an emissions control technology or emissions monitor or of a unit’s combustion chamber.

NR 409.02(25) (25) “Common stack” means the exhaust of emissions from 2 or more units through a single flue.

NR 409.02(26) (26) “Compensating unit” means a unit that is not otherwise subject to acid rain program emissions limitations or emissions reduction requirements during phase I and that is designated as a phase I unit in a reduced utilization plan under 40 CFR 72.43, provided that a unit that is not an affected unit under the acid rain program may not be a compensating unit.

NR 409.02(27) (27) “Compliance certification” means a submission to the administrator or department that is required by this chapter, by 40 CFR part 72, 73, 75, 77 or 78 or by regulations implementing section 407 or 410 of the act (42 USC 7651f and 7651i) to report an affected source or an affected unit’s compliance or non-compliance with a provision of the acid rain program and that is signed and verified by the designated representative in accordance with subparts B and I of 40 CFR part 72, s. NR 409.13 and the acid rain program regulations generally.

NR 409.02(28) (28) “Compliance option”, for purposes of the acid rain program, means any of the 4 strategies specified in 40 CFR 72.40 to 72.44 for complying with the acid rain program. Subpart D lists 4 options: phase I substitution plans, phase I extension plans, phase I reduced utilization plans and phase II repowering extensions.

NR 409.02(29) (29) “Compliance plan”, for purposes of the acid rain program, means the document submitted to the department for an affected source in accordance with the acid rain portion of an operation permit application under this chapter and 40 CFR 72.30 to 72.33, specifying the methods, including one or more compliance options under this chapter, 40 CFR 72.40 to 72.44 or regulations implementing section 407 of the act (42 USC 7651f), by which each affected unit at the source will meet the applicable emissions limitations and emissions reduction requirements of the acid rain program.

NR 409.02(30) (30) “Compliance subaccount” means the subaccount in an affected unit’s allowance tracking system account, established pursuant to 40 CFR 73.31 (a) or (b), in which are held, from the date that allowances for the current calendar year are recorded under 40 CFR 73.34 (a) until December 31, allowances available for use by the unit in the current calendar year and, after December 31 until the date that deductions are made under 40 CFR 73.35 (b), allowances available for use by the unit in the preceding calendar year, for the purpose of meeting the unit’s acid rain emissions limitation for sulfur dioxide.

NR 409.02(31) (31) “Compliance use date” means the first calendar year for which an allowance may be used for purposes of meeting a unit’s acid rain emissions limitation for sulfur dioxide.

NR 409.02(32) (32) “Construction” means fabrication, erection or installation of an affected unit or any portion of an affected unit.

NR 409.02(32g) (32g) ‘‘Customer” means a purchaser of electricity not for purposes of transmission or resale.

NR 409.02(32m) (32m) ‘‘Cyclone boiler” means a boiler with one or more water-cooled horizontal cylindrical chambers in which coal combustion takes place. The horizontal cylindrical chamber or chambers are attached to the bottom of the furnace. One or more cylindrical chambers are arranged either on one furnace wall or on 2 opposed furnace walls. Gaseous combustion products exiting from the chamber or chambers turn 90° to go up through the boiler while coal ash exits the bottom of the boiler as a molten slag.

NR 409.02(32s) (32s) ‘‘Demonstration period” means a period of time of not less than 15 months, approved under s. NR 409.065 (6), for demonstrating that the affected unit cannot meet the applicable emission limitation under s. NR 409.065 (2), (3) or (4) and establishing the minimum NOx emission rate that the unit can achieve during long-term load dispatch operation.

NR 409.02(33) (33) “Designated representative” means a responsible natural person authorized by the owners and operators of an affected source and of all affected units at the source, as evidenced by a certificate of representation submitted in accordance with subpart B of 40 CFR part 72, to represent and legally bind each owner and operator, as a matter of federal or state law, in matters pertaining to the acid rain program and acid rain portion of the operation permit program. Whenever the term “designated representative” is used in this chapter, the term shall also be construed to include the alternate designated representative.

NR 409.02 Note Note: Whenever the term “responsible official” is used in 40 CFR part 70, chs. NR 406 and 407, or in any other regulations implementing title V of the act, it shall be deemed to refer to the “designated representative” with regard to all matters under the acid rain program.

NR 409.02(34) (34) “Diesel fuel” means a low sulfur fuel oil of grades 1-D or 2-D, as defined in ASTM D975-02, incorporated by reference in s. NR 484.10 (13).

NR 409.02(35) (35) “Direct public utility ownership” means direct ownership of equipment and facilities by one or more corporations, the principal business of which is sale of electricity to the public at retail. Percentage ownership of equipment and facilities shall be measured on the basis of book value.

NR 409.02(35h) (35h) ‘‘Dry bottom” means having a furnace bottom temperature below the ash melting point and bottom ash removal as a solid.

NR 409.02(35p) (35p) ‘‘Economizer” means the lowest temperature heat exchange section of a utility boiler where boiler feed water is heated by the flue gas.

NR 409.02(36) (36) “Emissions” means air contaminants exhausted from an affected unit or affected source into the atmosphere, as measured, recorded and reported to the administrator and the department by the designated representative and as determined by the administrator and the department, in accordance with the emissions monitoring requirements of 40 CFR part 75.

NR 409.02(37) (37) “Excess acid rain emissions” means:

NR 409.02(37)(a) (a) Any tonnage of sulfur dioxide emitted by an affected unit during a calendar year that exceeds the emissions limitation in the acid rain program for sulfur dioxide for the unit; and

NR 409.02(37)(b) (b) Any tonnage of nitrogen oxides emitted by an affected unit during a calendar year that exceeds the annual tonnage equivalent of the emissions limitation in the acid rain program for nitrogen oxides applicable to the affected unit taking into account the unit’s heat input for the year.

NR 409.02(38) (38) “Excess emission offset requirement” means a requirement to reduce excess acid rain emissions pursuant to 40 CFR 77.1 to 77.6 by offsetting excess emissions of sulfur dioxide that have occurred at an affected unit in any calendar year.

NR 409.02(39) (39) “Existing unit” means a unit, including a unit subject to new source performance standards, section 111 of the act (42 USC 7411), that commenced commercial operation before November 15, 1990 and that on or after November 15, 1990 served a generator with a nameplate capacity of greater than 25 MWe. The term existing unit does not include simple cycle combustion turbines or any unit that on or after November 15, 1990 served only generators with a nameplate capacity of 25 MWe or less. Any existing unit that is modified, reconstructed or repowered after November 15, 1990 shall continue to be an existing unit.