Section NR 440.11 - Compliance with standards and maintenance requirements(1) Compliance with standards in this chapter, other than opacity standards, shall be determined only by performance tests established by s. NR 440.08, unless otherwise specified in the applicable standard.(2) Compliance with opacity standards in this chapter shall be determined by conducting observations in accordance with Method 9 in 40 CFR part 60, Appendix A, incorporated by reference in s. NR 440.17(1), with any alternative method that is approved by the administrator, or as provided in sub. (5) (e). For purposes of determining initial compliance, the minimum total time of observations shall be 3 hours (30 6-minute averages) for the performance test or other set of observations (meaning those fugitive-type emission sources subject only to an opacity standard).(3) The opacity standards set forth in this chapter shall apply at all times except during periods of startup, shutdown, malfunction and as otherwise provided in the applicable standard.(4) At all times, including periods of startup, shutdown and malfunction, owners and operators shall, to the extent practicable, maintain and operate any affected facility including associated air pollution control equipment in a manner consistent with good air pollution control practice for minimizing emissions. Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to the department which may include, but is not limited to, monitoring results, opacity observations, review of operating and maintenance procedures and inspection of the source.(5)(a) For the purpose of demonstrating initial compliance, opacity observations shall be conducted concurrently with the initial performance test required in s. NR 440.08, unless one of the following conditions apply: 1. If no performance test under s. NR 440.08 is required, then opacity observations shall be conducted within 60 days after achieving the maximum production rate at which the affected facility will be operated, but no later than 180 days after initial startup of the facility.2. If visibility or other conditions prevent the opacity observations from being conducted concurrently with the initial performance test required under s. NR 440.08, the owner or operator of an affected facility shall reschedule the opacity observations as soon after the initial performance test as possible, but not later than 30 days thereafter, and shall advise the department of the rescheduled date.(b) When the conditions specified in par. (a) 1. or 2. are met, the 30-day prior notification to the department required in s. NR 440.07(1) (f) shall be waived. A rescheduled opacity observation shall be conducted, to the extent possible, under the same operating conditions that existed during the initial performance test conducted under s. NR 440.08. The visible emissions observer shall determine whether visibility or other conditions prevent the opacity observations from being made concurrently with the initial performance test in accordance with procedures contained in Method 9 of Appendix A, 40 CFR part 60, incorporated by reference in s. NR 440.17(1). Opacity readings of portions of plumes which contain condensed, uncombined water vapor may not be used for purposes of determining compliance with opacity standards. The owner or operator of an affected facility shall make available, upon request by the department, such records as may be necessary to determine the conditions under which the visual observations were made and shall provide evidence indicating proof of current visible emissions observer certification. Except as provided in par. (f), the results of continuous monitoring by transmissometer which indicate that the opacity at the time visual observations were made was not in excess of the standard are probative but not conclusive evidence of the actual opacity of an emission, provided that the owner or operator shall meet the burden of proving that the instrument used meets, at the time of the alleged violation indicated by visual observation, Performance Specification 1 in Appendix B, 40 CFR part 60, incorporated by reference in s. NR 440.17(1), has been properly maintained and that the resulting data collected at the time of the alleged violation have not been altered in any way. (c) Except as provided in par. (d), the owner or operator of an affected facility to which an opacity standard in this chapter applies shall conduct opacity observations in accordance with sub. (2), shall record the opacity of emissions, and shall report to the department the opacity results along with the results of the initial performance test required under s. NR 440.08. The inability of an owner or operator to secure a visible emissions observer may not be considered a reason for not conducting the opacity observations concurrently with the initial performance test.(d) The owner or operator of an affected facility to which an opacity standard in this chapter applies may request the department to determine and to record the opacity of emissions from the affected facility during the initial performance test and at such times as may be required. The owner or operator of the affected facility shall report the opacity results to the department. Any request to the department to determine and to record the opacity of emissions from an affected facility shall be included in the notification required in s. NR 440.07(1) (f). If the department cannot determine and record the opacity of emissions from the affected facility during the performance test, then the provisions of pars. (a) and (b) shall apply. (e) An owner or operator of an affected facility using a continuous opacity monitor (transmissometer) shall record the monitoring data produced during the initial performance test required by s. NR 440.08 and shall furnish the department a written report of the monitoring results along with the results obtained using Method 9 of Appendix A, 40 CFR part 60, incorporated by reference in s. NR 440.17, and s. NR 440.08 performance test results.(f) An owner or operator of an affected facility subject to an opacity standard may submit, for compliance purposes, continuous opacity monitoring system (COMS) data results produced during any performance test required under s. NR 440.08 in lieu of Method 9 of Appendix A, 40 CFR part 60, incorporated by reference in s. NR 440.17(1), observation data. If an owner or operator elects to submit COMS data for compliance with the opacity standard, he or she shall notify the department of that decision, in writing, at least 30 days before any performance test required under s. NR 440.08 is conducted. Once the owner or operator of an affected facility has notified the department to that effect, the department shall use the COMS data results to determine compliance with the opacity standard during subsequent tests required under s. NR 440.08, until the owner or operator notifies the department, in writing, to the contrary. For the purpose of determining compliance with the opacity standard during a performance test required under s. NR 440.08 using COMS data, the minimum total time of COMS data collection shall be sufficient to include the averages of all 6-minute continuous periods within the duration of the mass emission performance test. Results of the COMS opacity determinations shall be submitted along with the results of the performance test required under s. NR 440.08. The owner or operator of an affected facility using a COMS for compliance purposes is responsible for demonstrating that the COMS meets the requirements specified in s. NR 440.13(3), that the COMS has been properly maintained and operated, and that the resulting data have not been altered in any way. If COMS data results are submitted for compliance with the opacity standard for a period of time during which Method 9 of Appendix A, 40 CFR part 60, incorporated by reference in s. NR 440.17(1), data indicate noncompliance, the Method 9 data shall be used to determine compliance with the opacity standard.(g) Upon receipt from an owner or operator of the written reports of the results of the performance tests required by s. NR 440.08, the opacity observation results and observer certification required by sub. (5) (b), and the COMS results, if applicable, the department shall make a finding concerning compliance with opacity and other applicable standards. If COMS data results are used to comply with an opacity standard, only those results are required to be submitted along with the performance test results required by s. NR 440.08. If the department finds that an affected facility is in compliance with all applicable standards for which performance tests are conducted in accordance with s. NR 440.08, but during the time such performance tests are being conducted fails to meet any applicable opacity standard, the department shall notify the owner or operator and advise him or her that he or she may petition the administrator within 10 days of receipt of notification to make appropriate adjustment to the opacity standard for the affected facility. Note: Under 40 CFR 60.11(e) (7) and (8), the administrator will grant a petition for adjustment of the opacity standard for an affected facility upon a demonstration by the owner or operator that the facility and associated air pollution control equipment were operated and maintained in a manner to minimize the opacity of emissions during the performance tests; that the performance tests were performed under the conditions established by the department; and that the affected facility and associated air pollution control equipment were incapable of being adjusted or operated to meet the applicable opacity standard. The administrator will establish an opacity standard for the affected facility at a level at which the source will be able, as indicated by the performance and opacity tests, to meet the opacity standard at all times during which the source is meeting the applicable mass or concentration emission standard. The administrator will promulgate the new opacity standard in the federal register.
(6) Special provisions set forth under an applicable section of this chapter shall supersede any conflicting provisions of this section.Wis. Admin. Code Department of Natural Resources NR 440.11
Cr. Register, January, 1984, No. 337, eff. 2-1-84; cr. (6), Register, September, 1986, No. 369, eff. 10-1-86; am. (2), r. and recr. (5), Register, September, 1990, No. 417, eff. 10-1-90; CR 06-109: am. (2) and (5) (b) and (f) Register May 2008 No. 629, eff. 6-1-08.