Chapter NR 440

NR 440.12 NR 440.12 Circumvention. No owner or operator subject to the provisions of this chapter may build, erect, install or use any article, machine, equipment or process, the use of which conceals an emission which would otherwise constitute a violation of an applicable standard. Such concealment includes, but is not limited to, the use of gaseous diluents to achieve compliance with an opacity standard or with a standard which is based on the concentration of a pollutant in the gases discharged to the atmosphere.

NR 440.12 History History: Cr. Register, January, 1984, No. 337, eff. 2-1-84.

NR 440.13 NR 440.13 Monitoring requirements.

NR 440.13(1) (1) For the purposes of this section, all continuous monitoring systems required under applicable sections of this chapter shall be subject to the provisions of this section upon promulgation of performance specifications for continuous monitoring systems under 40 CFR part 60, Appendix B, incorporated by reference in s. NR 440.17, unless otherwise specified in an applicable section or by the department. If the continuous monitoring system is used to determine compliance with emission limits on a continuous basis, the quality assurance requirements of 40 CFR part 60, Appendix F, incorporated by reference in s. NR 440.17, apply unless an applicable section or the department specify otherwise.

NR 440.13(2) (2) All continuous monitoring systems and monitoring devices shall be installed and operational prior to conducting performance tests under s. NR 440.08. Verification of operational status shall, at a minimum, include completion of the manufacturer’s written requirements or recommendations for installation, operation and calibration of the device.

NR 440.13(3) (3) If the owner or operator of an affected facility elects to submit continuous opacity monitoring system (COMS) data for compliance with the opacity standard as provided under s. NR 440.11 (5) (f), the owner or operator shall conduct a performance evaluation of the COMS as specified in Performance Specification 1, Appendix B, 40 CFR part 60, incorporated by reference in s. NR 440.17, before the performance test required under s. NR 440.08 is conducted. Otherwise, the owner or operator of an affected facility shall conduct a performance evaluation of the COMS or continuous emission monitoring system (CEMS) during any performance test required under s. NR 440.08 or within 30 days thereafter in accordance with the applicable performance specification in Appendix B, 40 CFR part 60, incorporated by reference in s. NR 440.17. The owner or operator of an affected facility shall conduct COMS or CEMS performance evaluations at such other times as may be required by the department.

NR 440.13(3)(a) (a) The owner or operator of an affected facility using a COMS to determine opacity compliance during any performance test required under s. NR 440.08 and as described in s. NR 440.11 (5) (f) shall furnish the department 2 or, upon request, more copies of a written report of the results of the COMS performance evaluation described in this subsection at least 10 days before the performance test required under s. NR 440.08 is conducted.

NR 440.13(3)(b) (b) Except as provided in par. (a), the owner or operator of an affected facility shall furnish the department within 60 days of completion 2 or, upon request, more copies of a written report of the results of the performance evaluation.

NR 440.13(4) (4) 

NR 440.13(4)(a) (a) Owners and operators of all continuous emission monitoring systems installed in accordance with the provisions of this chapter shall automatically check the zero (or low-level value between 0 and 20% of span value) and span (50 to 100% of span value) calibration drifts at least once daily in accordance with a written procedure. The zero and span shall, at a minimum, be adjusted whenever the 24-hour zero drift or 24-hour span drift exceeds 2 times the limit of the applicable performance specification in 40 CFR part 60, Appendix B, incorporated by reference in s. NR 440.17 (1). The system shall allow the amount of excess zero and span drift to be recorded and quantified whenever specified. Owners and operators of a continuous opacity monitoring system (COMS) installed in accordance with the provisions of this chapter, shall automatically, intrinsic to the opacity monitor, check the zero and upscale (span) calibration drifts at least once daily. For a particular COMS, the acceptable range of zero and upscale calibration materials is as defined in the applicable version of PS-1 in 40 CFR part 60, Appendix B, incorporated by reference in s. NR 440.17 (1). For COMS, the optical surfaces exposed to the emissions shall be cleaned prior to performing the zero and upscale drift adjustments, except that for systems using automatic zero adjustments the optical surfaces shall be cleaned when the cumulative automatic zero compensation exceeds 4% opacity.

NR 440.13(4)(b) (b) Unless otherwise approved by the department, the following procedures shall be followed for continuous opacity monitoring systems. Minimum procedures shall include an automated method for producing a simulated zero opacity condition and an upscale (span) opacity condition using a certified neutral density filter or other related technique to produce a known obstruction of the light beam. Such procedures shall provide a system check of all active analyzer internal optics with power or curvature, all active electronic circuitry including the light source and photodetector assembly and electronic or electro-mechanical systems and hardware and software used during normal measurement operation.

NR 440.13(5) (5) Except for system breakdowns, repairs, calibration checks, and zero and span adjustments required under sub. (4), all continuous monitoring systems shall be in continuous operation and shall meet minimum frequency of operation requirements as follows:

NR 440.13(5)(a) (a) All continuous monitoring systems referenced by sub. (3) for measuring opacity of emissions shall complete a minimum of one cycle of sampling and analyzing for each successive 10-second period and one cycle of data recording for each successive 6-minute period.

NR 440.13(5)(b) (b) All continuous monitoring systems referenced by sub. (3) for measuring emissions, except opacity, shall complete a minimum of one cycle of operation (sampling, analyzing and data recording) for each successive 15-minute period.

NR 440.13(6) (6) All continuous monitoring systems or monitoring devices shall be installed such that representative measurements of emissions or process parameters from the affected facility are obtained. Additional procedures for location of continuous monitoring systems contained in the applicable performance specifications of 40 CFR part 60, Appendix B, incorporated by reference in s. NR 440.17, shall be used.

NR 440.13(7) (7) When the emissions from a single affected facility or 2 or more affected facilities subject to the same emission standards are combined before being released to the atmosphere, the owner or operator may install applicable continuous monitoring systems on each emission or on the combined emissions. When the affected facilities are not subject to the same emission standards, separate continuous monitoring systems shall be installed on each emission. When the emission from one affected facility is released to the atmosphere through more than one point, the owner or operator shall install an applicable continuous monitoring system on each separate emission unless the installation of fewer systems is approved by the department. When more than one continuous monitoring system is used to measure the emissions from one affected facility (e.g., multiple breechings, multiple outlets), the owner or operator shall report the results as required from each continuous monitoring system.

NR 440.13(8) (8) Owners or operators of all continuous monitoring systems for measurement of opacity shall reduce all data to 6-minute averages and for continuous monitoring systems other than opacity to one-hour averages for time periods as defined under s. NR 440.02 (20) and (29), respectively. Six-minute opacity averages shall be calculated from 36 or more data points equally spaced over each 6-minute period. For continuous monitoring systems other than opacity, one-hour averages shall be computed from 4 or more data points equally spaced over each one-hour period. Data recorded during periods of continuous monitoring system breakdowns, repairs, calibration checks, and zero and span adjustments may not be included in the data averages computed under this subsection. For owners and operators complying with the requirements in s. NR 440.07 (6) (a) or (b), data averages shall include any data recorded during periods of monitor breakdown or malfunction. An arithmetic or integrated average of all data may be used. The data may be recorded in reduced or nonreduced form (for example, ppm pollutant and percent O2 or ng of pollutant per J of heat input). All excess emissions shall be converted into units of the standard using the applicable conversion procedures specified in the standards. After conversion into units of the standard, the data may be rounded to the same number of significant digits used in the standard to specify the emission limit (for example, rounded to the nearest one percent opacity).

NR 440.13(9) (9) After receipt and consideration of written application, the department may approve alternatives to any monitoring procedures or requirements of this chapter including, but not limited to the following:

NR 440.13(9)(a) (a) Alternative monitoring requirements when installation of a continuous monitoring system or monitoring device specified by this chapter would not provide accurate measurements due to liquid water or other interferences caused by substances with the effluent gases.

NR 440.13(9)(b) (b) Alternative monitoring requirements when the affected facility is infrequently operated.

NR 440.13(9)(c) (c) Alternative monitoring requirements to accommodate continuous monitoring systems that require additional measurements to correct for stack moisture conditions.

NR 440.13(9)(d) (d) Alternative locations for installing continuous monitoring systems or monitoring devices when the owner or operator can demonstrate that installation at alternate locations will enable accurate and representative measurements.

NR 440.13(9)(e) (e) Alternative methods of converting pollutant concentration measurements to units of the standards.

NR 440.13(9)(f) (f) Alternative procedures for performing daily checks of zero and span drift that do not involve use of span gases or tests cells.

NR 440.13(9)(g) (g) Alternatives to the ASTM test methods or sampling procedures specified by any section of this chapter.

NR 440.13(9)(h) (h) Alternative continuous monitoring systems that do not meet the design or performance requirements in Performance Specification 1 of 40 CFR part 60, Appendix B, incorporated by reference in s. NR 440.17, but adequately demonstrate a definite and consistent relationship between their measurements and the measurements of opacity by a system complying with the requirements in Performance Specification 1. The department may require that a demonstration be performed for each affected facility.

NR 440.13(9)(i) (i) Alternative monitoring requirements when the emission from a single affected facility or the combined emissions from 2 or more affected facilities are released to the atmosphere through more than one point.

NR 440.13(10) (10) An alternative to the relative accuracy test specified in Performance Specification 2 of 40 CFR part 60, Appendix B, incorporated by reference in s. NR 440.17 (1), may be requested as follows:

NR 440.13(10)(a) (a) An alternative to the reference method test for determining relative accuracy is available for sources with emission rates demonstrated to be less than 50% of the applicable standard. A source owner or operator may petition the administrator to waive the relative accuracy test in section 8.4 of Performance Specification 2 and substitute the procedures in section 16.0 if the results of a performance test conducted according to the requirements in s. NR 440.08 or other tests performed following the criteria in s. NR 440.08 demonstrate that the emission rate of the pollutant of interest in the units of the applicable standard is less than 50% of the applicable standard. For sources subject to standards expressed as control efficiency levels, a source owner or operator may petition the administrator to waive the relative accuracy test and substitute the procedures in section 16.0 of Performance Specification 2 if the control device exhaust emission rate is less than 50% of the level needed to meet the control efficiency requirement. The alternative procedures do not apply if the continuous emission monitoring system is used to determine compliance continuously with the applicable standard. The petition to waive the relative accuracy test shall include a detailed description of the procedures to be applied. Included shall be location and procedure for conducting the alternative, the concentration or response levels of the alternative relative accuracy materials, and the other equipment checks included in the alternative procedure. The administrator shall review the petition for completeness and applicability. The determination to grant a waiver will depend on the intended use of the CEMS data (for example, data collection purposes other than NSPS) and may require specifications more stringent than in Performance Specification 2 (for example, the applicable emission limit is more stringent than NSPS).

NR 440.13(10)(b) (b) The waiver of a CEMS relative accuracy test shall be reviewed and may be rescinded at the time, following successful completion of the alternative relative accuracy procedure, that the CEMS data indicate the source emissions are approaching the level of the applicable standard. The criterion for reviewing the waiver is the collection of CEMS data showing that emissions have exceeded 70% of the applicable standard for 7 consecutive averaging periods as specified by the applicable regulations. For sources subject to standards expressed as control efficiency levels, the criterion for reviewing the waiver is the collection of CEMS data showing that exhaust emissions have exceeded 70% of the level needed to meet the control efficiency requirement for 7 consecutive averaging periods as specified by the applicable regulations. It is the responsibility of the source operator to maintain records and determine the level of emissions relative to the criterion on the waiver of relative accuracy testing. If this criterion is exceeded, the owner or operator shall notify the administrator within 10 days of the occurrence and include a description of the nature and cause of the increasing emissions. The administrator shall review the notification and may rescind the waiver and require the owner or operator to conduct a relative accuracy test of the CEMS as specified in section 8.4 of Performance Specification 2.

NR 440.13 History History: Cr. Register, January, 1984, No. 337, eff. 2-1-84; am. (1) (intro.), r. (1) (a) and (b), Register, September, 1986, No. 369, eff. 10-1-86; am. (1), (4) (b), (5) (a) and (b) and (8), r. and recr. (3), r. (5) (c), Register, September, 1990, No. 417, eff. 10-1-90; CR 06-109: am. (4) (a) and (b) and (8), cr. (10) Register May 2008 No. 629, eff. 6-1-08.

NR 440.14 NR 440.14 Modification.

NR 440.14(1) (1) Except as provided under subs. (5), (6) and (8) to (12), any physical or operational change to an existing facility which results in an increase in the emission rate to the atmosphere of any pollutant to which a standard applies shall be considered a modification within the meaning of this chapter. Upon modification, an existing facility becomes an affected facility for each pollutant to which a standard applies and for which there is an increase in the emission rate to the atmosphere.

NR 440.14(2) (2) Emission rate shall be expressed as kg/hr of any pollutant discharged into the atmosphere for which a standard is applicable. The department shall use the following to determine emission rate:

NR 440.14(2)(a) (a) Emission factors as specified in “Compilation of Air Pollutant Emission Factors,” AP-42, Volume 1: Stationary Point and Area Sources, EPA-OAQPS, as amended, incorporated by reference in s. NR 440.17 (2) (i) 2., or other emission factors determined by the department to be superior to AP-42 emission factors, in cases where utilization of emission factors demonstrates that the emission level resulting from the physical or operational change will either clearly increase or clearly not increase.

NR 440.14(2)(b) (b) Material balances, continuous monitor data, or manual emission tests in cases where utilization of emission factors as referenced in par. (a) does not demonstrate to the department’s satisfaction whether the emission level resulting from the physical or operational change will either clearly increase or clearly not increase, or where an owner or operator demonstrates to the department’s satisfaction that there are reasonable grounds to dispute the result obtained by the department utilizing emission factors as referenced in par. (a). When the emission rate is based on results from manual emission tests or continuous monitoring systems, the procedures specified in 40 CFR part 60, Appendix C, incorporated by reference in s. NR 440.17, shall be used to determine whether an increase in emission rate has occurred. Tests shall be conducted under such conditions as the department may specify to the owner or operator based on representative performance of the facility. At least 3 valid test runs shall be conducted before and at least 3 after the physical or operational change. All operating parameters which may affect emissions shall be held constant to the maximum feasible degree for all test runs.

NR 440.14(3) (3) The addition of an affected facility to a stationary source as an expansion to that source or as a replacement for an existing facility will not by itself bring within the applicability of this chapter any other facility within that source.

NR 440.14(5) (5) The following may not, by themselves, be considered modifications under this chapter:

NR 440.14(5)(a) (a) Maintenance, repair and replacement which the department determines to be routine for a source category, subject to the provisions of sub. (3) and s. NR 440.15.

NR 440.14(5)(b) (b) An increase in production rate of an existing facility, if that increase can be accomplished without a capital expenditure on that facility.

NR 440.14(5)(c) (c) An increase in the hours of operation.

NR 440.14(5)(d) (d) Use of an alternative fuel or raw material if, prior the date any standard under this chapter became applicable to that source type, the existing facility was designed to accommodate that alternative use. A facility shall be considered to be designed to accommodate an alternative fuel or raw material if that use could be accomplished under the facility’s construction specifications as amended prior to the change. Conversion to coal required for energy considerations, as specified in section 111 (a) (8) of the act (42 USC 7411 (a) (8)), will not be considered a modification under this chapter.

NR 440.14(5)(e) (e) The addition or use of any system or device whose primary function is the reduction of air pollutants, except when an emission control system is removed or is replaced by a system which the department determines to be less environmentally beneficial.

NR 440.14(5)(f) (f) The relocation or change in ownership of an existing facility.

NR 440.14(6) (6) Special provisions set forth under any other applicable section of this chapter shall supersede any conflicting provisions of this section.

NR 440.14(7) (7) Within 180 days of the completion of any physical or operational change subject to the control measures specified in sub. (1), compliance with all applicable standards shall be achieved.

NR 440.14(8) (8) No physical change or change in the method of operation at an existing electric utility steam generating unit may be treated as a modification for the purposes of this section provided that the change does not increase the maximum hourly emissions of any pollutant regulated under this section above the maximum hourly emissions achievable at that unit during the 5 years prior to the change.

NR 440.14(9) (9) Repowering projects that are awarded funding from the department of energy as permanent clean coal technology demonstration projects, or similar projects funded by the U.S. environmental protection agency, are exempt from the requirements of this section provided that the change does not increase the maximum hourly emissions of any pollutant regulated under this section above the maximum hourly emissions achievable at that unit during the 5 years prior to the change.

NR 440.14(10) (10) 

NR 440.14(10)(a) (a) Repowering projects that qualify for an extension under section 409 (b) of the act (42 USC 7651h (b)) are exempt from the requirements of this section provided that the change does not increase the actual hourly emissions of any pollutant regulated under this section above the actual hourly emissions achievable at that unit during the 5 years prior to the change.

NR 440.14(10)(b) (b) This exemption does not apply to any new unit that:

NR 440.14(10)(b)1. 1. Is designated as a replacement for an existing unit;

NR 440.14(10)(b)2. 2. Qualifies under section 409 (b) of the act (42 USC 7651h (b)) for an extension of an emission limitation compliance date under section 405 of the act (42 USC 7651d) and;

NR 440.14(10)(b)3. 3. Is located at a different site than the existing unit.

NR 440.14(11) (11) The installation, operation, cessation or removal of a temporary clean coal technology demonstration project is exempt from the requirements of this section. A temporary clean coal control technology demonstration project for the purposes of this section is a clean coal technology demonstration project that is operated for a period of 5 years or less and which complies with the state implementation plan for the state in which the project is located and other requirements necessary to attain and maintain the national ambient air quality standards during the project and after it is terminated.

NR 440.14(12) (12) The reactivation of a very clean coal fired electric utility steam generating unit is exempt from the requirements of this section.

NR 440.14 History History: Cr. Register, January, 1984, No. 337, eff. 2-1-84; am. (1), (2) (a), (5) (d), cr. (8) to (12), Register, December, 1995, No. 480, eff. 1-1-96; CR 06-109: cr. (2) (intro.), am. (2) (a) Register May 2008 No. 629, eff. 6-1-08.

NR 440.15 NR 440.15 Reconstruction.

NR 440.15(1) (1) An existing facility, upon reconstruction, becomes an affected facility, irrespective of any change in emission rate.

NR 440.15(2) (2) “Reconstruction” means the replacement of components of an existing facility to such an extent that:

NR 440.15(2)(a) (a) The fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable entirely new facility, and

NR 440.15(2)(b) (b) It is technologically and economically feasible to meet the applicable standards set forth in this chapter.

NR 440.15(3) (3) “Fixed capital cost” means the capital needed to provide all the depreciable components.

NR 440.15(4) (4) If an owner or operator of an existing facility proposes to replace components, and the fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable entirely new facility, the owner or operator shall notify the department of the proposed replacements. The notice shall be postmarked 60 days (or as soon as practicable) before construction of the replacements is commenced and shall include the following information:

NR 440.15(4)(a) (a) Name and address of the owner or operator.

NR 440.15(4)(b) (b) The location of the existing facility.

NR 440.15(4)(c) (c) A brief description of the existing facility and the components which are to be replaced.

NR 440.15(4)(d) (d) A description of the existing air pollution control equipment and the proposed air pollution control equipment.

NR 440.15(4)(e) (e) An estimate of the fixed capital cost of the replacements and of constructing a comparable entirely new facility.

NR 440.15(4)(f) (f) The estimated life of the existing facility after the replacements.

NR 440.15(4)(g) (g) A discussion of any economic or technical limitations the facility may have in complying with the applicable standards of performance after the proposed replacements.

NR 440.15(5) (5) The department shall determine, within 30 days of the receipt of the notice required by sub. (4) and any additional information it may reasonably require, whether the proposed replacement constitutes reconstruction.

NR 440.15(6) (6) The department’s determination under sub. (5) shall be based on:

NR 440.15(6)(a) (a) The fixed capital cost of the replacements in comparison to the fixed capital cost that would be required to construct a comparable entirely new facility;

NR 440.15(6)(b) (b) The estimated life of the facility after the replacements compared to the life of a comparable entirely new facility;

NR 440.15(6)(c) (c) The extent to which the components being replaced cause or contribute to the emissions from the facility; and

NR 440.15(6)(d) (d) Any economic or technical limitations on compliance with applicable standards of performance which are inherent in the proposed replacements.

NR 440.15(7) (7) Individual sections of this chapter may include specific provisions which refine and delimit the concept of reconstruction set forth in this section.

NR 440.15 History History: Cr. Register, January, 1984, No. 337, eff. 2-1-84.

NR 440.17 NR 440.17 Incorporation by reference of code of federal regulations provisions and other materials.

NR 440.17(1) (1) Appendices. Appendices A, B, C, F and I of 40 CFR part 60, Appendix B of 40 CFR part 61 and Appendices A, B, D, E and F of 40 CFR part 75, as in effect on June 1, 2008, are incorporated by reference and made a part of this chapter. Copies of these Appendices are available for inspection in the offices of the department of natural resources and legislative reference bureau, Madison, Wisconsin, or may be purchased for personal use from the superintendent of documents, U.S. government printing office, Washington DC 20402.

NR 440.17(2) (2) Other materials. The materials listed in this subsection are incorporated by reference for the corresponding sections noted. Some of the materials are also incorporated for Appendices A, B, C and F of 40 CFR part 60 as in effect on June 1, 2008. Since these Appendices are incorporated by reference in this chapter by sub. (1), materials incorporated by reference in the Appendices are hereby also incorporated by reference and made a part of this chapter. The materials are available for inspection in the offices of the department of natural resources and legislative reference bureau, Madison, Wisconsin or may be purchased for personal use at the corresponding address noted.

NR 440.17(2)(a) (a) The materials listed in Table 1 are available for purchase from at least one of the following addresses: American Society for Testing and Materials (ASTM), 100 Barr Harbor Drive, Post Office Box C700, West Conshohocken PA 19428-2959, Phone: [phone], Fax: [phone], E-mail: [e-mail], Website: http://www.astm.org; or IHS Global Engineering Documents, 15 Inverness Way East, Englewood, CO 80112, Phone: [phone], E-mail: [e-mail], Website: http://global.ihs.com.

NR 440.17(2)(b) (b) The following material is available for purchase from the Association of Official Analytical Chemists, 1111 North 19th Street, Suite 210, Arlington VA 22209:

NR 440.17(2)(b)1. 1. AOAC Method 9, Official Methods of Analysis of the Association of Official Analytical Chemists, 11th edition, 1970, pp. 11-12, for ss. NR 440.37 (5) (b) 3. b., 440.38 (5) (b) 3. b., 440.39 (5) (b) 3. b., 440.40 (5) (b) 3. b., and 440.41 (5) (c) 3. b.

NR 440.17(2)(c) (c) The following material is available for purchase from the American Petroleum Institute, 1220 L Street NW, Washington DC 20005:

NR 440.17(2)(c)1. 1. API Publication 2517, Evaporation Loss from External Floating-Roof Tanks, Second Edition, February 1980, for ss. NR 440.27 (2) (k) and (4) (b), 440.28 (2) (j) and (6) (b), and 440.285 (2) (f) 1. and (7) (e) 2. a.

NR 440.17(2)(d) (d) The following material is available for purchase from the Technical Association of the Pulp and Paper Industry (TAPPI), Dunwoody Park, Atlanta GA 30341:

NR 440.17(2)(d)1. 1. TAPPI Method T624 os-68, for s. NR 440.45 (6) (d) 3.