— Delete exceptions under s. NR 439.06(3)(c) related to stage 2 vapor recovery rules, which were repealed by CR 15-077. NR 439.07 Methods and procedures for periodic compliance emission testing.
— Clarify language under sub. (1) concerning the emission test requirements for determining compliance with the emission limitations and standards.
— Clarify that compliance emission tests shall be performed under conditions resulting in maximum emissions, with control devices operating, and at capacity.
— Specify emission test plan and report content consistent with what is currently required by department forms and guidance.
— Clarify the required method for sampling port and platform installations.
— Update and provide alternative test methods for determining gas flow rate, heat input, boiler emission rate, and organic compound emission limit determination.
NR 439.075 Periodic compliance emission testing requirements.
— Reduce the need to update cross references by including corresponding references to current federal standards to identify sources subject to periodic testing.
— Delete compliance emission testing requirements under s. NR 439.075(3)(c) because the specific testing requirements are no longer required under the CAA 1990 Amendments. — Provide a compliance emissions testing extension for emissions units that are not in operation.
— Clarify the deadline for requesting compliance emission testing extensions.
NR 439.08 Methods and procedures for periodic fuel sampling and analysis.
— Update fuel sampling and analysis methods to currently available versions and incorporate newly available methods.
NR 439.085 Periodic fuel sampling and analysis requirements.
— Update fuel sampling and analysis methods to currently available versions.
NR 439.09 Methods and procedures for continuous emission monitoring.
— Update methods and cross references related to Continuous Emissions Monitoring Systems (CEMS) to be consistent with currently available federal methods and specifications.
— Add relevant federal performance specifications for pollutant CEMS that have become available since the last time ch. NR 439 was revised. — Clarify the circumstances under which a full excess emission report is required in addition to a summary excess emission report.
— Simplify the averaging period used to determine if excess emissions have occurred from emissions units monitored by CEMS.
— Provide certainty regarding excess emission report content by identifying the required information in the rule rather than relying on the current form provided by the department.
NR 439.095 Continuous emission monitoring requirements.
— Update performance specification methods.
— Set deadline for submitting QA/QC plan consistent with federal requirements.
NR 439.11 Malfunction prevention and abatement plans.
— Define malfunction prevention and abatement plan (MPAP) and limit the type of malfunctions to be included in the plan to those that may cause an applicable emission limit to be violated or may cause air pollution.
— Reduce the requirement to have an MPAP to only sources required to have an air pollution control permit.
— Clarify which emissions units, operations, and activities require an MPAP and exclude smaller emissions units, operations, and activities from needing an MPAP.
— Clarify plan content and submittal requirements.
— Clarify how sources will demonstrate implementation of required MPAPs by adding recordkeeping requirements.
— Identify recordkeeping requirements.
— Clarify when review and updates of MPAPs are required.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
Chapter NR 439, Wis. Adm. Code, incorporates the federal compliance testing, monitoring, reporting and recordkeeping requirements of 40 CFR part 70. Inclusion of these 40 CFR part 70 requirements in ch. NR 439, Wis. Adm. Code, is necessary to retain EPA approval of the department’s operation permit program. Revisions to sections with requirements from 40 CFR part 70 are intended to align language with federal requirements and do not increase or decrease stringency of the requirements and do not impact the ability of the department to retain approval of its operation permit program. NR 439.03 Reporting
The department has proposed to add a requirement that the compliance certification reports include a certification statement indicating whether the source is in compliance with the applicable requirements of 40 CFR part 68 Chemical Accident Prevention provisions, under s. NR 439.03(1)(c)6, Wis. Adm. Code. This certification is required by 40 CFR 68.215(a)(2)(ii). NR 439.04 Recordkeeping
NR 439.05 Access to records; access for inspections, monitoring and sampling; record retention
Proposed rule language under s. NR 439.05(4), Wis. Adm. Code, requires retention of records of all required monitoring information and supporting information for at least 5 years from the date of the monitoring consistent with 40 CFR 70.6(a)(3)(ii). Section NR 439.05(4), Wis. Adm. Code, consolidates several occurrences of similar record retention language that currently exist in ch. NR 439, Wis. Adm. Code. The proposed language identifies support information to include all calibration and maintenance records, original recordings for continuous monitoring instrumentation, and copies of all reports required by a permit, consistent with what is required by 40 CFR 70.6(a)(3)(ii)(B). This federal requirement does not allow a source to only keep records of a subset of this monitoring data. NR 439.055 Methods and procedures for determining compliance using instrumentation
Proposed s. NR 439.055(1r) and (2m), Wis. Adm. Code, are consistent with 40 CFR 70.6 which specifies that permits for existing sources contain operational, monitoring, and related recordkeeping and reporting requirements that assure and demonstrate compliance with all of a source’s applicable requirements. NR 439.06, 439.07, 439.075, 439.08, 439.085, 439.09, 439.095 - Methods and procedures for determining compliance with emission limitations; compliance emission testing; fuel sampling and analysis; continuous emission monitoring
Current rule language reflects federal requirements. Revisions to these sections are intended to update, clarify and simplify, but do not increase or decrease stringency or ability of the state to meet federal requirements.
NR 439.06 – Credible evidence
The DNR is proposing to modify existing language related to credible evidence under s. NR 439.06, Wis. Adm. Code, to be consistent with federal credible evidence language under 40 CFR 51.212, 52.12, 60.11 and 61.12. Currently, “… the department may use any relevant information or appropriate method to determine a source's compliance with applicable emission limitations”, notwithstanding the compliance determination methods authorized under the chapter. To match federal language, the department is proposing to revise the current language to read: “Nothing in this chapter shall preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements.” 7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope:
The department held a preliminary public comment period on the statement of scope from August 15 to 22, 2022. The department received three written comments. One comment was not germane to the scope statement. The two remaining sets of comments were submitted by trade organizations. The organizations stated that ch. NR 439, Wis. Adm. Code, should be revised and included a list of changes the organizations would like the department to make during the proposed rulemaking. The department also hosted an online preliminary public hearing on the statement of scope on August 22, 2022. Four members of the public attended the hearing. None of the attendees registered a position on the scope statement. A representative from a trade organization provided verbal comments reiterating the organization’s more detailed written comments.
8. Comparison with Similar Rules in Adjacent States:
Recordkeeping and Reporting – The States of Illinois, Iowa, Michigan, and Minnesota have incorporated recordkeeping and reporting requirements into their administrative codes. The rules vary from state to state and the key differences relative to ch. NR 439, Wis. Adm. Code, are described below. Control Equipment Monitoring – Proposed changes to s. NR 439.055, Wis. Adm. Code, remove the specific minimum monitoring requirements for sources and air pollution control equipment in current rule language, effectively increasing flexibility for demonstrating compliance. Illinois’ general control device monitoring requirements are incorporated under s. 201.281, Illinois Administrative Code (IAC) and are similar to the proposed changes to s. NR 439.055, Wis. Adm. Code. The IAC requires that every emission source or air pollution control device be equipped with monitoring instruments as required by its permit. Iowa’s control equipment monitoring rules are similar to the proposed changes to s. NR 439.055, Wis. Adm. Code. The monitoring requirements are determined on a case-by-case basis and included in the facility’s air permit. Michigan’s control equipment monitoring requirements are incorporated under R. 336.1213(3), Michigan Administrative Code and are similar to or slightly more stringent than the proposed changes to s. NR 439.055, Wis. Adm. Code. In addition to general monitoring requirements, Michigan requires certain industries to participate in a monitoring program which meets specified requirements. Minnesota’s control equipment monitoring rules are incorporated under Minnesota Administrative Rules 7011.0080 and are similar to or slightly more stringent than the existing rules under s. NR 439.055, Wis. Adm. Code, and are more stringent than the proposed changes to s. NR 439.055, Wis. Adm. Code. Minnesota rules specify monitoring parameters for more control device technologies than are currently included under s. NR 439.055, Wis. Adm. Code. Deviation Reporting – Proposed changes to deviation reporting under s. NR 439.03, Wis. Adm. Code, include reporting tiers depending on the severity of the occurrence and are described in detail under section #5 of this board order. The basis for deviation reporting comes from federal rule 40 CFR 70.6(a)(3)(iii)(B) which requires prompt reporting of deviations from permit requirements and specifies that “the permitting authority shall define ‘prompt’ in relation to the degree and type of deviation….”
