Wis. Admin. Code Department of Natural Resources NR 440.642

Current through November 25, 2024

Section NR 440.642 - New residential wood heaters

(1) APPLICABILITY AND DESIGNATION OF AFFECTED FACILITY.

(a) The affected facility to which the provisions of this section apply is each wood heater manufactured on or after July 1, 1988, or sold at retail on or after July 1, 1990. The provisions of this section do not apply to wood heaters constructed prior to July 1, 1988, that are or have been owned by a noncommercial owner for personal use.

(b) Each affected facility shall comply with the applicable emission limits in sub. (3) unless exempted under par. (e), (f), (g) or (h).

(e) Affected facilities manufactured in the U.S. for export are exempt from the applicable emission limits of sub. (3) and the requirements of sub. (4).

(f) A wood heater used for research and development purposes that is never offered for sale or sold is exempt from the applicable emission limits of sub. (3) and the requirements of sub. (4). No more than 50 wood heaters manufactured per model line may be exempted for this purpose.

(g) A coal-only heater is exempt from the applicable emission limits of sub. (3) and the requirements of sub. (4).

(h) The following are not affected facilities and are not subject to this section:

1. Open masonry fireplaces constructed on site.

2. Boilers,

3. Furnaces, and

4. Cookstoves.

(i) Modification or reconstruction, as defined in ss. NR 440.14 and 440.15, does not, by itself, make a wood heater an affected facility under this section.

(2) DEFINITIONS. As used in this section, terms not defined in this subsection have the meanings given in s. NR 440.02.

(a) "At retail" means the sale by a commercial owner of a wood heater to the ultimate purchaser.

(b) "Boiler" means a solid burning appliance used primarily for heating spaces, other than the space where the appliance is located, by the distribution through pipes of a gas or fluid heated in the appliance. The appliance shall be tested and listed as a boiler under accepted American or Canadian safety testing codes. A manufacturer may request an exemption in writing from the administrator by stating why the testing and listing requirement is not practicable and by demonstrating that this appliance is otherwise a boiler.

(c) "Coal-only heater" means an enclosed, coal-burning appliance capable of space heating, or domestic water heating, which has all of the following characteristics:

1. An opening for emptying ash that is located near the bottom or the side of the appliance.

2. A system that admits air primarily up and through the fuel bed.

3. A grate or other similar device for shaking or disturbing the fuel bed or power-driven mechanical stoker.

4. Installation instructions that state that the use of wood in stove, except for coal ignition purposes, is prohibited by law, and

5. The model is listed by a nationally recognized safety-testing laboratory for use of coal only, except for coal ignition purposes.

(d) "Commercial owner" means any person who owns or controls a wood heater in the course of the manufacture, importation, distribution, or sale of the wood heater.

(e) "Cookstove" means a wood-fired appliance that is designed primarily for cooking food and that has the following characteristics:

1. An oven, with a volume of 0.028 cubic meters (1 cubic foot) or greater, and an oven rack,

2. A device for measuring oven temperatures,

3. A flame path that is routed around the oven,

4. A shaker grate,

5. An ash pan,

6. An ash clean-out door below the oven, and

7. The absence of a fan or heat channels to dissipate heat from the appliance.

(f) "Furnace" means a solid fuel burning appliance that is designed to be located outside of ordinary living areas and that warms spaces other than the space where the appliance is located by the distribution of air heated in the appliance through ducts. The appliance shall be tested and listed as a furnace under accepted American or Canadian safety testing codes unless exempted from this provision by the administrator. A manufacturer may request an exemption in writing from the administrator by stating why the testing and listing requirement is not practicable and by demonstrating that the appliance is otherwise a furnace.

(g) "Manufactured" means completed and ready for shipment (whether or not packaged).

(h) "Manufacturer" means any person who constructs or imports a wood heater.

(i) "Model line" means all wood heaters offered for sale by a single manufacturer that are similar in all material respects.

(j) "Representative affected facility" means an individual wood heater that is similar in all material respects to other wood heaters within the model line it represents.

(k) "Sale" means the transfer of ownership or control, except that transfer of control may not constitute a sale for purposes of sub. (1) (f).

(L) "Similar in all material respects" means that the construction materials, exhaust and inlet air system and other design features are within the allowed tolerances for components identified in sub. (4) (k).

(m) "Wood heater" means an enclosed woodburning appliance capable of and intended for space heating or domestic water heating that meets all of the following criteria:

1. An air-to-fuel ratio in the combustion chamber averaging less than 35-to-1 as determined by the test procedure prescribed in sub. (5), performed at an accredited laboratory,

2. A usable firebox volume of less than 0.57 cubic meter (20 cubic feet).

3. A minimum burn rate less than 5 kg/hr (11 lb/hr) as determined by the test procedure prescribed in sub. (5) performed at an accredited laboratory.

4. A maximum weight of 800 kg (1,760 lb). In determining the weight of an appliance for these purposes, fixtures and devices that are normally sold separately, such as flue pipe, chimney, and masonry components that are not an integral part of the appliance or heat distribution ducting, may not be included.

(3) STANDARDS FOR PARTICULATE MATTER. Unless exempted under sub. (1), each affected facility:

(b) Manufactured on or after July 1, 1990, or sold at retail on or after July 1, 1992, shall comply with the following particulate matter emission limits as determined by the test methods and procedures in sub. (5):

1. An affected facility equipped with a catalytic combustor may not discharge into the atmosphere any gases which contain particulate matter in excess of a weighted average of 4.1 g/hr (0.009 lb/hr). Particulate emissions during any test run at any burn rate that is required to be used in the weighted average may not exceed the value calculated for "C" (rounded to 2 significant figures) calculated using the following equation:

a. At burn rates less than or equal to 2.82 kg/hr (6.2 lb/hr),

C = K₁ BR + K₂

where:

BR is the burn rate in kg/hr (lb/hr)

K1 = 3.55g/kg (0.00355 lb/lb)

K2 = 4.98 g/hr (0.0011 lb/hr)

b. At burn rates greater than 2.82 kg/hr, (6.2 lb/hr), C = 15 g/hr (0.033 lb/hr).

2. An affected facility not equipped with a catalytic combustor may not discharge into the atmosphere any gases which contain particulate matter in excess of a weighted average of 7.5 g/hr (0.017 lb/hr). Particulate emissions may not exceed 15 g/hr (0.033 lb/hr) during any test run at a burn rate less than or equal to 1.5 kg/hr (3.3 lb/hr) that is required to be used in the weighted average, and particulate emissions may not exceed 18 g/hr (0.040 lb/hr) during any test burn at a burn rate greater than 1.5 kg/hr (3.3 lb/hr) that is required to be used in the weighted average.

(4) COMPLIANCE AND CERTIFICATION.

(a) For each model line, compliance with applicable emission limits may be determined based on testing of representative affected facilities within the model line.

(b) Any manufacturer of an affected facility may apply to the administrator for a certificate of compliance for a model line. The application shall be in writing to: Stationary Source Compliance Division (EN-341), U.S. Environmental Protection Agency, 401 M Street SW, Washington DC 20460, Attention: Wood Heater Program. The manufacturer shall submit 2 complete copies of the application and attachments. The application shall be signed by the manufacturer, or an authorized representative, and shall contain the following:

1. The model name and/or design number,

2. Two color photographs of the tested unit, one showing a front view and the other, a side view.

a. Engineering drawings and specifications of components that may affect emissions, including specifications for each component listed in par. (k). Manufacturers may use complete assembly or design drawings that have been prepared for other purposes, but should designate on the drawings the dimensions of each component listed in par. (k). Manufacturers shall identify tolerances of components of the tested unit listed in par. (k) 2. that are different from those specified in that paragraph, and show that such tolerances may not reasonably be anticipated to cause wood heaters in the model line to exceed the applicable emission limits.

b. A statement whether the firebox or any firebox component (other than one listed in par. (k) 3.) will be composed of different material from the material used for the firebox or firebox component in the wood heater on which certification testing was performed and a description of any such differences.

c. For applications to certify a model line of catalytic wood heaters to meet the emission limits in sub. (3) (b), a statement describing the manufacturer's program to ensure consistency in the size of any gap in the catalyst bypass mechanism. The statement shall describe, in narrative form, the components of the system that affect the size of the gap, any specifications for critical dimensions of any such components, and the procedure the manufacturer will use to ensure consistency in the size of the catalyst bypass gap.

4. All documentation pertaining to a valid certification test, including the complete test report and, for all test runs: raw data sheets, laboratory technician notes, calculations, and test results. Documentation shall include the items specified in the applicable test methods. Recommended formats and guidance materials are available from the administrator.

5. For catalytic wood heaters, a copy of the catalytic combustor warranty,

6. A statement that the manufacturer will conduct a quality assurance program for the model line which satisfies the requirements of par. (o).

7. A statement describing how the tested unit was sealed by the laboratory after the completion of certification testing, and

8. A statement that the manufacturer will notify the accredited laboratory if the application for certification is granted, within 30 days of receipt of notification from the U.S. environmental protection agency.

9. Statements that the wood heaters manufactured under this certificate will be:

a. Similar in all material respects to the wood heater submitted for certification testing, and

b. Will be labeled as prescribed in sub. (7).

10. For catalytic wood heaters, a statement that the warranty, access and inspection, and temperature monitoring provisions in pars. (c), (d), and (m) will be met.

11. A statement that the manufacturer will comply with the recordkeeping and reporting requirements in sub. (8).

12. A written estimate of the number of wood heaters that the manufacturer anticipates will be produced annually for the first 2 production years. Compliance with this provision may be obtained by designating one of the following ranges:

a. Less than 2,500,

b. 2,500 to 4,999,

c. 5,000 to 9,999,

d. 10,000 to 49,999,

e. 50,000 or greater; and

13. At the beginning of each test run in a certification test series, 2 photographs of the fuel load: One before and one after it is placed in the wood heater. One of the photographs shall show the front view of the wood load and the other shall show the side view.

14. For manufacturers seeking certification of model lines under sub. (4) (e) to meet the emission limits in sub. (3) (b), a statement that the manufacturer has entered into a contract with an accredited laboratory which satisfied the requirements of par. (g).

(c) If the affected facility is a catalytic wood heater, the warranty for the catalytic combustor shall include the replacement of the combustor and any prior replacement combustor without charge to the consumer for:

1. Two years from the date the consumer purchased the heater for any defects in workmanship or materials that prevent the combustor from functioning when installed and operated properly in the wood heater, and

2. Three years from the date the consumer purchased the heater for thermal crumbling or disintegration of the substrate material for heaters manufactured after July 1, 1990.

(d) The manufacturer of an affected facility equipped with a catalytic combustor shall provide for a means to allow the owner to gain access readily to the catalyst for inspection or replacement purposes and shall document in the application for certification how the catalyst is replaced.

(e)

1. The administrator shall issue a certificate of compliance for a model line if he or she determines, based on all information submitted by the applicant and any other relevant information available, that all of the following requirements have been met:

a. A valid certification test has demonstrated that the wood heater representative of the model line complies with the applicable particulate emission limits in sub. (3),

b. Any tolerances or materials for components listed in par. (k) 2. or 3. that are different from those specified in those paragraphs may not reasonably be anticipated to cause wood heaters in the model line to exceed the applicable emission limits.

c. The requirements of pars. (b), (c), (d), and (m) have been met. The program described under par. (b) 3. c. shall be deemed a tolerance specified in the certified design.

2. Upon denying certification under this paragraph, the administrator shall give written notice to the manufacturer setting forth the basis for the determination.

(f) To be valid, a certification test shall be:

1. Announced to the administrator in accordance with sub. (5) (e),

2. Conducted by a testing laboratory accredited by the administrator pursuant to sub. (6),

3. Conducted on a wood heater similar in all material respects to other wood heaters of the model line that is to be certified, and

4. Conducted in accordance with the test methods and procedure specified in sub. (5).

(g) To have a wood heater model certified under sub. (4) (e) to meet the emission limits in sub. (3) (b), a manufacturer shall enter into a contract with the accredited laboratory that performed the certification test, under which the laboratory will:

1. Conduct the random compliance audit test at no cost to the manufacturer if the U.S. environmental protection agency selects that laboratory to conduct the test, or

2. Pay the manufacturer the reasonable cost of a random compliance audit test (as determined by the U.S. environmental protection agency) if the U.S. environmental protection agency selects any other laboratory to conduct the test.

(i) An applicant for certification may apply for a waiver of the requirement to submit the results of a certification test pursuant to par. (b) 4., if the wood heaters of the model line are similar in all material respects to another model line that has already been issued a certificate of compliance. A manufacturer that seeks a waiver of certification testing shall identify the model line that has been certified, and shall submit a copy of an agreement with the owner of the design permitting the applicant to produce wood heaters of that design.

(j)

1. Unless revoked sooner by the administrator, a certificate of compliance shall be valid for 5 years from the date of issuance, for a model line certified as meeting emission limits in sub. (3) (b).

2. Upon application for renewal of certification by the manufacturer, the administrator may waive the requirement for certification testing upon determining that the model line continues to meet the requirements for certification in par. (e), or that a waiver of certification is otherwise appropriate.

3. Upon waiving certificate testing under subd. 2., the administrator shall give written notice to the manufacturer setting forth the basis for the determination.

(k)

1. A model line shall be recertified whenever any change is made in the design submitted pursuant to par. (b) 3. that is presumed to affect the particulate emission rate for that model line. The administrator may waive this requirement upon written request by the manufacturer, if he or she determines that the change may not reasonably be anticipated to cause wood heaters in the model line to exceed the applicable emission limits. The granting of such a waiver does not relieve the manufacturer of any compliance obligations under this section.

2. Any change in the indicated tolerances of any of the following components (where such components are applicable) is presumed to affect particulate emissions if that change exceeds ± 0.64 cm (± 1/4 inch) for any linear dimension and " 5% for any cross-sectional area relating to air introduction systems and catalyst bypass gaps unless other dimensions and cross-sectional areas are previously approved by the administrator under par. (e) 1. b.

a. Firebox: Dimensions,

b. Air introduction systems: Cross-sectional area of restrictive air inlets, outlets, and location, and method of control,

c. Baffles: Dimensions and locations,

d. Refractory/insulation: Dimensions and location,

e. Catalyst: Dimensions and location,

f. Catalyst bypass mechanism and, for model lines certified to meet the emissions limits in sub. (3) (b) catalyst bypass gap tolerances (when bypass mechanism is in closed position): Dimensions, cross-sectional area, and location,

g. Flue gas exit: Dimensions and location,

h. Door and catalyst bypass gaskets: Dimensions and fit,

i. Outer shielding and coverings: Dimensions and location,

j. Fuel feed system: For wood heaters that are designed primarily to burn wood pellets and other wood heaters equipped with a fuel feed system, the fuel feed rate, auger motor design and power rating, and the angle of the auger to the firebox, and

k. Forced air combustion system: For wood heaters so equipped, the location and horsepower of blower motors and the fan blade size.

3. Any change in the materials used for the following components is presumed to affect emissions:

a. Refractory/insulation or

b. Door and catalyst bypass gaskets.

4. A change in the make, model, or composition of a catalyst is presumed to affect emissions, unless the change has been approved in advance by the administrator, based on test data that demonstrate that the replacement catalyst is equivalent to or better than the original catalyst in terms of particulate emission reduction.

(L)

1. The administrator may revoke certification if he or she determines that the wood heaters being produced in that model line do not comply with the requirements of this section or sub. (3). Such a determination shall be based on all available evidence, including:

a. Test data from a retesting of the original unit on which the certification test was conducted,

b. A finding that the certification test was not valid. The finding shall be based on problems or irregularities with the certification test or its documentation, but may be supplemented by other information.

c. A finding that the labeling of the wood heater does not comply with the requirements of par. (f),

d. Failure by the manufacturer to comply with reporting and recordkeeping requirements under sub. (8),

e. Physical examination showing that a significant percentage of production units inspected are not similar in all material respects to the representative affected facility submitted for testing, or

f. Failure of the manufacturer to conduct a quality assurance program in conformity with par. (o).

2. Revocation of certification under this paragraph may not take effect until the manufacturer concerned has been given written notice by the administrator setting forth the basis for the proposed determination and an opportunity to request a hearing under sub. (10).

3. Determination to revoke certification based upon audit testing shall be made only in accordance with par. (p).

(m) A catalytic wood heater shall be equipped with a permanent provision to accommodate a commercially available temperature sensor which can monitor combustor gas stream temperatures within or immediately downstream, i.e. within 2.54 centimeters (1 inch), of the combustor surface.

(n) Any manufacturer of an affected facility subject under sub. (1) (b) to the applicable emission limits of this section that does not belong to a model line certified under this section shall cause that facility to be tested in an accredited laboratory in accordance with par. (f) 1., 2. and 4. before it leaves the manufacturer's possession and shall report the results to the administrator.

(o)

1. For each certified model line, the manufacturer shall conduct a quality assurance program which satisfies the following requirements:

2. Except as provided in subd. 5., the manufacturer or authorized representative shall inspect at least one from every 150 units produced within a model line to determine that the wood heater is within applicable tolerances for all components that affect emissions as listed in par. (k) 2.

a. Except as provided in subd. 3. c. or 5., the manufacturer or authorized representative shall conduct an emission test on a randomly selected affected facility produced within a model line certified under par. (e) on the following schedule:

If weighted average certification test results were -	If yearly production per model is -
If weighted average certification test results were -	<2500	>=2500
70% or less of standard...............................	When directed by EPA, not to exceed once every 10,000 stoves.	Every 10,000 stoves or trien-nially (whichever is more frequent).
Within 30% of standard ..............................	Every 5,000 stoves.	Every 5,000 stoves or annually (whichever is more frequent).

b. Emission tests shall be conducted in conformity with sub. (5) (a) using either approved method for measuring particulate matter as provided in sub. (5). The manufacturer shall notify the U.S. environmental protection agency by U.S. mail that an emissions test required pursuant to this paragraph will be conducted within one week of the mailing of the notification.

c. If the manufacturer stated pursuant to par. (b) 3. that the firebox or any firebox component would be composed of a different material than the material used in the wood heater on which certification testing was performed, the first test shall be performed before 1,000 wood heaters are produced. The manufacturer shall submit a report of the results of this emission test to the administrator within 45 days of the completion of testing.

4. The manufacturer shall take remedial measures, as appropriate, when inspection or testing pursuant to this paragraph indicates that affected facilities within the model line are not within applicable tolerances or do not comply with applicable emission limits. Manufacturers shall record the problem identified, the extent of the problem, the remedial measures taken, and the effect of such remedial measures as projected by the manufacturer or determined by any additional testing.

a. If 2 consecutive passing tests are conducted under either subd. 2. or 3., the required frequency of testing under the applicable paragraph shall be modified as follows: Skip every other required test.

b. If 5 consecutive passing tests are conducted under the modified schedule provided for in subd. 5. a., the required frequency of testing under the applicable paragraph shall be further modified as follows: Skip 3 consecutive required tests after each required test that is conducted.

c. Testing shall resume on the frequency specified in subd. 2. or 3. as applicable, if a test failure results during any test conducted under a modified schedule.

6. If emissions tests under this paragraph are conducted at an altitude different from the altitude at which certification tests were conducted, and are not conducted under pressurized conditions, the results shall be adjusted for altitude.

(p)

a. The administrator shall after July 1, 1990, select for random compliance audit testing certified wood heater model lines that have not already been subject to a random compliance audit under this paragraph. The administrator may not select more than one model line under this program for every 5 model lines for which certification is granted under par. (e) to meet the emission limits in sub. (3) (b). No accredited laboratory may test or bear the expense of testing, as provided in the contract described in par. (g), more than one model line from every 5 model lines tested by the laboratory for which certification was granted. The administrator shall use a procedure that ensures that the selection process is random.

b. The administrator may, by means of a neutral selection scheme, select model lines certified under par. (b) or (e), for selective enforcement audit testing under this paragraph. Prior to July 1, 1990, the administrator shall only select a model line for a selective enforcement audit on the basis of information indicating that affected facilities within the model line may exceed the applicable emission limit in sub. (3).

2. The administrator shall randomly select for audit testing 5 production wood heaters from each model line selected under this paragraph. These wood heaters shall be selected from completed units ready for shipment from the manufacturer's facility (whether or not the units are in a package or container). The wood heaters shall be sealed upon selection and remain sealed until they are tested or until the audit is completed. The wood heaters shall be numbered in the order that they were selected.

a. The administrator shall test, or direct the manufacturer to test, the first of the 5 wood heaters selected under subd. 2. in a laboratory accredited under sub. (6) that is selected pursuant to subd. 4.

b. The expense of the random compliance audit test shall be the responsibility of the wood heater manufacturer. A manufacturer may require the laboratory that performed the certification test to bear the expense of a random compliance audit test by means of the contract required under par. (g). If the laboratory with which the manufacturer had a contract has ceased business due to bankruptcy or is otherwise legally unable to honor the contract, the administrator may not select any of that manufacturer's model lines for which certification testing has been conducted by that laboratory for a random compliance audit test.

c. The test shall be conducted using the same test method and procedure used to obtain certification. If the certification test consisted of more than one particulate sampling test method, the administrator may use either one of these methods for the purpose of audit testing. If the test is performed in a pressure vessel, air pressure in the pressure vessel shall be maintained within 1% of the average of the barometric pressures recorded for each individual test run used to calculate the weighted average emission rate for the certification test. The administrator shall notify the manufacturer at least one week prior to any test under this paragraph, and allow the manufacturer or authorized representatives to observe the test.

a. Except as provided in this paragraph, the administrator may select any accredited laboratory for audit testing. The following contains a nesting potential redrafting situation

b. The administrator shall select the accredited laboratory that performed the test used to obtain certification for audit testing, until the administrator has amended this section to allow testing at another laboratory. If another laboratory is selected pursuant to this subdivision, and the overall precisions of the test method and procedure is greater than "1 gram per hour (± 0.0022 lb per hour) of the weighted average at laboratories below 304 meters (1,000 feet) elevation (or equivalent), the interlaboratory component of the precision shall be added to the applicable emissions standard for the purposes of this subdivision.

c. The administrator may not select an accredited laboratory that is located at an elevation more than 152 meters (500 feet) higher than the elevation of the laboratory which performed the test used to obtain certification, unless the audit test is performed in a pressure vessel.

a. If emissions from a wood heater tested under subd. 3. exceed the applicable weighted average emission limit by more than 50%, the administrator shall so notify the manufacturer that certification for that model line is suspended effective 72 hours from the receipt of the notice, unless the suspension notice is withdrawn by the administrator. The suspension shall remain in effect until withdrawn by the administrator, or 30 days from its effective date if a revocation notice under subd. 5. b. is not issued within that period, or the date of final agency action on revocation, whichever occurs earlier. The following contains a nested potential redrafting situation

1) If emissions from a wood heater tested under subd. 3. exceed the applicable weighted average emission limit, the administrator shall notify the manufacturer that certification is revoked for that model line.

2) A revocation notice under subd. 5. b. 1) shall become final and effective 60 days after receipt by the manufacturer, unless it is withdrawn, a hearing is requested under sub. (10) or the deadline for requesting a hearing is extended.

3) The administrator may extend the deadline for requesting a hearing for up to 60 days for good cause.

4) A manufacturer may extend the deadline for requesting a hearing for up to 6 months, by agreeing to a voluntary suspension of certification.

c. Any notification under subd. 5.

a. or

b. shall include a copy of a preliminary test report from the accredited laboratory. The accredited laboratory shall provide a preliminary test report to the administrator within 10 days of the completion of testing, if a wood heater exceeds the applicable emission limit in sub. (3). The laboratory shall provide the administrator and the manufacturer, within 30 days of the completion of testing, all documentation pertaining to the test, including the complete test report and raw data sheets, laboratory technician notes, and test results for all test runs.

d. Upon receiving notification of a test failure under subd. 5. b. the manufacturer may submit some or all of the remaining 4 wood heaters selected under subd. 2. for testing at the manufacturer's own expense, in the order they were selected by the administrator, at the laboratory that performed the emissions test for the administrator.

e. Whether or not the manufacturer proceeds under subd. 5. d., the manufacturer may submit any relevant information to the administrator, including any other test data generated pursuant to this section. The manufacturer shall pay the expense of any testing performed for him or her.

f. The administrator shall withdraw any notice issued under subd. 5. b. if tests under subd. 5. d. show either:

1) That all 4 wood heaters tested for the manufacturer met the applicable weighted average emission limits, or

2) That the second and third wood heaters selected met the applicable weighted average emission limits and the average of all 3 weighted averages, including the original audit test, was below the applicable weighted average emission limits.

g. The administrator may withdraw any proposed revocation, if the administrator finds that an audit test failure has been rebutted by information submitted by the manufacturer under subd. 5. d. or e. or by any other relevant information available to the administrator.

h. Any withdrawal of a proposed revocation shall be accompanied by a document setting forth its basis.

(5) TEST METHODS AND PROCEDURES. Test methods and procedures in 40 CFR part 60, Appendix A, incorporated by reference in s. NR 440.17, except as provided under s. NR 440.08(2), shall be used to determine compliance with the standards and requirements for certification under subs. (3) and (4) as follows:

(a) Method 28 shall be used to establish the certification test conditions and the particulate matter weighted emission values.

(b) Emission concentrations may be measured with either:

1. Method 5G if a dilution tunnel sampling location is used, or

2. Method 5H if a stack location is used.

(c) Method 28A shall be used to determine that a wood combustion unit qualifies under the definition of wood heater in sub. (2) (m). If such a determination is necessary, this test shall be conducted by an accredited laboratory.

(e)

1. The manufacturer of an affected facility shall notify the administrator of the date that certification testing is scheduled to begin. A notice from the testing lab containing the information required in sub. (4) (f) 1. may be used to satisfy this requirement. This notice shall be submitted at least 30 days before the start of testing. The notification of testing shall be in writing, and include the manufacturer's name and address, the testing laboratory's name, the model name and number or, if unavailable, some other way to distinguish between models, and the dates of testing.

2. Any emission testing conducted on the wood heater for which notice was delivered shall be presumed to be certification testing if such testing occurs on or after the scheduled date of testing and before a test report is submitted to the administrator. If certification testing is interrupted for more than 24 hours, the laboratory shall notify the administrator by telephone, as soon as practicable, and also by letter, stating why the testing was interrupted and when it is expected to be resumed.

3. A manufacturer or laboratory may change the date that testing is scheduled to begin by notifying the administrator at least 14 days before the start of testing. Notification of schedule change shall be made at least 2 working days prior to the originally scheduled test date. This notice of rescheduling shall be made by telephone or other expeditious means and shall be documented in writing and sent concurrently.

4. A model line may be withdrawn from testing before the certification test is complete, provided the wood heater is sealed in accordance with sub. (6) (g). The manufacturer shall notify the administrator 30 days before the resumption of testing.

5. The manufacturer or laboratory shall notify the administrator if a test is not completed within the time allotted as set forth in the notice of testing. The notification shall be made by the end of the allotted testing period by telephone or other expeditious means, and documented in writing sent concurrently, and shall contain the dates when the test will be resumed. Unless otherwise approved by the administrator, failure to conduct a certification test as scheduled without notifying the administrator of any schedule change 14 days prior to the schedule or revised test dates will result in voiding the notification. In the case of a voided notification, the manufacturer shall provide the administrator with a second notification at least 30 days prior to the new test dates. The administrator may waive the requirement for advance notice for test resumptions.

(f) The testing laboratory shall allow the manufacturer to observe certification testing. However, manufacturers may not involve themselves in the conduct of the test after the pretest burn (as defined by Method 28) has begun. Communications between the manufacturer and laboratory personnel regarding operation of the wood heater shall be limited to written communications transmitted prior to the first pretest burn of the certification series. Written communications between the manufacturer and laboratory personnel may be exchanged during the certification test only if deviations from the test procedures are observed that constitute improper conduct of the test. All communications shall be included in the test documentation required to be submitted under sub. (4) (b) 4. and shall be consistent with instructions provided in the owner's manual required under sub. (7) (k), except to the extent that they address details of the certification tests that would not be relevant to owners.

(6) LABORATORY ACCREDITATION.

(a)

1. A laboratory may apply for accreditation by the administrator to conduct wood heater certifications tests pursuant to sub. (4). The application shall be in writing to: Emission Measurement Branch (MD-13), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attn: Wood Heater Laboratory Accreditation.

2. If accreditation is denied under this section, the administrator shall give written notice to the laboratory setting forth the basis for the determination.

(b) In order for a test laboratory to qualify for accreditation the laboratory shall:

1. Submit its written application providing the information related to laboratory equipment and management and technical experience of laboratory personnel. Applications from laboratories shall establish that:

a. Laboratory personnel have a total of one year of relevant experience in particulate measurement, including at least 3 months experience in measuring particulate emissions from wood heaters,

b. The laboratory has the equipment necessary to perform testing in accordance with either sub. (5) (b) 1. or 2., and

c. Laboratory personnel have experience in test management or laboratory management.

2. Have no conflict of interest and receive no financial benefit from the outcome of certification testing conducted pursuant to sub. (4).

3. Agree to enter into a contract as described in sub. (4) (g) with each wood heater manufacturer for whom a certification test has been performed.

5. Demonstrate proficiency to achieve reproducible results with at least one test method and procedure in sub. (5) (b) by:

a. Performing a test consisting of at least 8 test runs (2 in each of the 4 burn rate categories) on a wood heater identified by the administrator,

b. Providing the administrator at least 30 days prior notice of the test to afford the administrator the opportunity to have an observer present, and

c. Submitting to the administrator all documentation pertaining to the test including a complete test report and raw data sheets, laboratory technical notes, and test results for all test runs.

6. Be located in the continental United States.

7. Agree to participate annually in a proficiency testing program conducted by the administrator.

8. Agree to allow the administrator access to observe certification testing.

9. Agree to comply with reporting and recordkeeping requirements that affect testing laboratories.

10. Agree to accept the reasonable cost of a random compliance audit test (as determined by the administrator) if it is selected to conduct the random compliance audit test of a model line originally tested for certification at another laboratory.

(e)

1. The administrator may revoke the U.S. environmental protection agency laboratory accreditation if he or she determines that the laboratory:

a. No longer satisfies the requirements for accreditation in par. (b),

b. Does not follow required procedures or practices,

c. Had falsified data or otherwise misrepresented emission data,

e. Failed to participate in a proficiency testing program, in accordance with its commitment under par. (b) 5., or

f. Failed to seal the wood heater in accordance with par. (g).

2. Revocation of accreditation under this paragraph may not take effect until the laboratory concerned has been given written notice by the administrator setting forth the basis for the proposed determination and an opportunity for a hearing under sub. (10). However, if revocation is ultimately upheld, all tests conducted by the laboratory after written notice was given may, at the discretion of the administrator, be declared invalid.

(f) Unless revoked sooner, a certificate of accreditation granted by the administrator shall be valid for 5 years from the date of issuance, for certificates issued under par. (b).

(g) A laboratory accredited by the administrator shall seal any wood heater on which it performed certification tests, immediately upon completion or suspension of certification testing, by using a laboratory-specific seal.

(7) PERMANENT LABEL, TEMPORARY LABEL AND OWNER'S MANUAL.

(a)

1. Each affected facility manufactured on or after July 1, 1988, or offered for sale at retail on or after July 1, 1990, shall have a permanent label affixed to it that meets the requirements of this subsection.

2. Except for wood heaters subject to sub. (1) (e), (f) or (g), the permanent label shall contain the following information:

a. Month and year of manufacture,

b. Model name or number, and

c. Serial number.

3. The permanent label shall:

a. Be affixed in a readily visible or accessible location,

b. Be at least 8.9 cm long and 5.1 cm wide (31/2 inches long and 2 inches wide).

c. Be made of a material expected to last the lifetime of the wood heater,

d. Present required information in a manner so that it is likely to remain legible for the lifetime of the wood heater.

e. Be affixed in such a manner that it cannot be removed from the appliance without damage to the label.

4. The permanent label may be combined with any other label, as long as the required information is displayed, and the integrity of the permanent label is not compromised.

(b) If the wood heater belongs to a model line certified under sub. (4) and has not been found to exceed the applicable emission limits or tolerances through quality assurance testing, one of the following statements, as appropriate, shall appear on the permanent label:

State of Wisconsin

DEPARTMENT OF NATURAL RESOURCES

Certified to comply with July, 1988, particulate emission standards

Not approved for sale after June 30, 1992,

State of Wisconsin

DEPARTMENT OF NATURAL RESOURCES

Certified to comply with July, 1990, particulate emission standards.

(d) Any label statement under par. (b) constitutes a representation by the manufacturer as to any wood heater that bears it that:

1. Certification was in effect at the time the wood heater left the possession of the manufacturer,

2. The manufacturer was, at the time the label was affixed, conducting a quality assurance program in conformity with sub. (4) (o),

3. As to any wood heater individually tested for emissions by the manufacturer under sub. (4) (o) 3., that it met the applicable emissions limits, and

4. As to any wood heater individually inspected for tolerances under sub. (4) (o) 2., that the wood heater is within applicable tolerances.

(e) If an affected facility is exempt from the emission limits in sub. (3), the following statement shall appear on the permanent label:

State of Wisconsin

DEPARTMENT OF NATURAL RESOURCES

Not certified. Approved for sale until June 30, 1991.

(f)

1. If an affected facility is manufactured in the state of Wisconsin for export, the following statement shall appear on the permanent label:

State of Wisconsin

DEPARTMENT OF NATURAL RESOURCES

Export stove. May not be operated within the United States.

2. If an affected facility is manufactured for use for research and development purposes as provided in sub. (1)(f), the following statement shall appear on the permanent label:

State of Wisconsin

DEPARTMENT OF NATURAL RESOURCES

Not certified. Research Stove.

Not approved for sale.

3. If an appliance is a coal-only heater as defined in sub. (1), the following statement shall appear on the permanent label:

State of Wisconsin

DEPARTMENT OF NATURAL RESOURCES

This heater is only for burning coal.

Use of any other solid fuel except for coal ignition purposes is a violation of law.

(g) Any affected facility that does not qualify for labeling under any of pars. (b) through (f), shall bear one of the following labels:

1. If the test conducted under sub. (4) (n) indicates that the facility does not meet applicable emissions limits:

State of Wisconsin

DEPARTMENT OF NATURAL RESOURCES.

Not certified. Does not meet DNR particulate emission standards.

IT IS AGAINST THE LAW TO OPERATE THIS WOOD HEATER.

2. If the test conducted under sub. (4) (n) indicates that the facility does meet applicable emissions limits:

State of Wisconsin

DEPARTMENT OF NATURAL RESOURCES

Not certified. Meets DNR particulate emission standards.

3. If the facility has not been tested as required by sub. (4) (e).

State of Wisconsin

DEPARTMENT OF NATURAL RESOURCES.

Not certified. Not tested. Not approved for sale.

IT IS AGAINST THE LAW TO OPERATE THIS WOOD HEATER.

(h) For affected facilities equipped with catalytic combustors, the following statement shall appear on the permanent label:

This wood heater contains a catalytic combustor, which needs periodic inspection and replacement for proper operation. Consult owner's manual for further information. It is against the law to operate this wood heater in a manner inconsistent with operating instructions in the owner's manual or if the catalytic element is deactivated or removed.

(i) An affected facility permanently labeled under par. (b) shall have attached to it a temporary label that shall contain only the following:

1. A statement indicating the compliance status of the model. The statement shall be one of the statements provided in 40 CFR part 60, Appendix I, Sectio n 2.2.1, incorporated by reference in s. NR 440.17. Instructions on the statement to select are provided in 40 CFR part 60 in Appendix I, incorporated by reference in s. NR 440.17.

2. A graphic presentation of the composite particulate matter emission rate as determined in the certification test. The method for presenting this information is provided in 40 CFR part 60, Appendix I, Section 2.2.2, incorporated by reference in s. NR 440.17.

3. A graphic presentation of the overall thermal efficiency of the model. The method for presenting this information is provided in 40 CFR part 60, Appendix I, Section 2.2.3, incorporated by reference in s. NR 440.17. At the discretion of the manufacturer, either the actual measured efficiency of the model or its estimated efficiency may be used for purposes of this paragraph. The actual efficiency is the efficiency measured in tests conducted pursuant to 40 CFR 670.534(d) . The estimated efficiency shall be 72% if the model is catalyst-equipped and 63% if the model is not catalyst equipped, and 78% if the model is designed to burn wood pellets for fuel.

4. A numerical expression of the heat output range of the unit, in British thermal units per hour (Btu/hr) rounded to the nearest 100 Btu/hr.

a. If the manufacturer elects to report the overall efficiency of the model based on test results pursuant to subd. 3., the manufacturer shall report the heat output range measured during the efficiency test. If an accessory device is used in the certification test to achieve any low burn rate criterion specified in this section, and if this accessory device is not sold as a part of the wood heater, the heat output range shall be determined using the formula in subd. 4. b. based upon the lowest sustainable burn rate achieved without the accessory device.

b. If the manufacturer elects to use the estimated efficiency as provided in subd. 3., the manufacturer shall estimate the heat output of the model as follows:

See PDF for diagram

where:

HOE is the estimated heat output in Btu/hr

HV is the heating value of fuel, 19,140 Btu/kg (8,700 Btu/lb)

BR is the burn rate of dry test fuel, kg/hr (lb/hr)

5. Statements regarding the importance of operation and maintenance. Instructions regarding which statements shall be used are provided in 40 CFR part 60, Appendix I, Section 2., incorporated by reference in s. NR 440.17; and

6. The manufacturer and the identification of the model.

(j)

1. An affected facility permanently labeled under par. (e), (f) 3. or (g) shall have attached to it a temporary label that shall contain only the information provided for in 40 CFR part 60, Appendix I, section 2.3, 2.4 or 2.5, as applicable, incorporated by reference in s. NR 440.17.

2. The temporary label of an affected facility permanently labeled under par. (b), (e), (f) 3. or (g) shall:

a. Be affixed to a location on the wood heater that is readily seen and accessible when the wood heater is offered for sale to consumers by any commercial owner;

b. Not be combined with any other label or information;

c. Be attached to the wood heater in such a way that it can be easily removed by the consumer upon purchase, except that the label on wood heaters displayed by a commercial owner may have an adhesive backing or other means to preserve the label to prevent its removal or destruction;

d. Be printed on 90 pound bond paper in black ink with a white background except that those for models that are not otherwise exempted which do not meet the applicable emission limits, or have not been tested pursuant to this section, shall be on a red background as described in 40 CFR part 60, Appendix I, Section 2.5, incorporated by reference in s. NR 440.17;

e. Have dimensions of 12.7 centimeters by 17.8 centimeters (5 inches by 7 inches) as described in 40 CFR part 60, Appendix I, section 2.1, incorporated by reference in s. NR 440.17(1);

f. Have wording, presentation of the graphic data, and typography as presented in 40 CFR part 60, Appendix I, incorporated by reference in s. NR 440.17.

(k)

1. Each affected facility offered for sale by a commercial owner shall be accompanied by an owner's manual that shall contain the information listed in subds.

2. (pertaining to installation) and

3. (pertaining to operation and maintenance). The information shall be adequate to enable consumers to achieve optimal emissions performance. The information shall also be consistent with the operating instructions provided by the manufacturer to the laboratory for operating the wood heater during certification testing, except for details of the certification test that would not be relevant to the ultimate purchaser.

2. Installation information in the owner's manual shall state the requirements for achieving proper draft.

3. Operation and maintenance information in the owner's manual shall include:

a. Wood loading procedures, recommendations on wood selection, and warnings on what fuels not to use, such as treated wood, colored paper, cardboard, solvents, trash and garbage,

b. Fire starting procedures,

c. Proper use of air controls,

d. Ash removal procedures,

e. Instructions on gasket replacement,

f. For catalytic models, information on the following pertaining to the catalytic combustor:

1) Procedures for achieving and maintaining catalyst activity,

2) Maintenance procedures,

3) Procedures for determining deterioration or failure,

4) Procedures for replacement, and

5) Information on how to exercise warranty rights, and

g. For catalytic models, the following statement:

This wood heater contains a catalytic combustor, which needs periodic inspection and replacement for proper operation. It is against the law to operate this wood heater in a manner inconsistent with operating instructions in this manual, or if the catalytic element is deactivated or removed.

4. Any manufacturer using the model language contained in 40 CFR part 60, Appendix I, incorporated by reference in s. NR 440.17, to satisfy any requirement of this paragraph shall be in compliance with that requirement, provided that the particular model language is printed in full, with only such changes as are necessary to ensure accuracy for the particular model line.

(L) Wood heaters that are affected by this section but that have been owned and operated by a noncommercial owner, are not subject to pars. (j) and (k) when offered for resale.

(8) REPORTING AND RECORDKEEPING.

(a) Each manufacturer who holds a certificate of compliance under sub. (4) (e) for a model line shall maintain records containing the information required by this paragraph with respect to that model line. The records and information maintained shall include:

1. For certification tests:

a. All documentation pertaining to the certification test used to obtain certification, including the full test report and raw data sheets, laboratory technician notes, calculations, and the test results for all test runs.

b. Where a model line was certified under a previous requirement and later certified under sub. (4) (e), all documentation pertaining to the certification test used to obtain certification in each instance.

2. For parameter inspections conducted pursuant to sub. (4) (o) 2., information indicating the extent to which tolerances for components that affect emissions as listed in sub. (4) (k) 2. were inspected, and at what frequency, the results of such inspections, remedial actions taken, if any, and any follow-up actions such as additional inspections.

3. For emissions tests conducted pursuant to sub. (4) (o) 3., all test reports, data sheets, laboratory technician notes, calculations, and test results for all test runs, the remedial actions taken, if any, and any follow-up actions such as additional testing.

4. The number of affected facilities that are sold each year, by certified model line.

(b)

1. Each accredited laboratory shall maintain records consisting of all documentation pertaining to each certification test, including the full test report and raw data sheets, technician notes, calculations, and the test results for all test runs.

2. Each accredited laboratory shall report to the administrator by the 8th day of each month prior to July 1, 1990:

a. The number and identification of wood heaters scheduled for testing and the type of testing (e.g., U.S. environmental protection agency certification, Oregon certification, research and development testing),

b. The estimated date on which certification testing could commence for a wood heater, if such a test were requested on the first day of that month,

c. The identification of the wood heaters tested during the previous month.

3. Each accredited laboratory shall report to the administrator within 24 hours whenever a manufacturer which has notified the laboratory that it intends to apply for alternative certification for a model line fails to submit on schedule a representative unit of that model line for certification testing.

(c) Any wood heater upon which certification tests were performed based upon which certification was granted under sub. (4) (e) shall be retained (sealed and unaltered) at the manufacturer's facility for as long as the model line in question is manufactured. Any such wood heater shall be made available upon request to the administrator for inspection and testing.

(e) Any manufacturer seeking exemption shall maintain wood heater production records covering the period July 1, 1987 to July 1, 1989.

(f) Each manufacturer of an affected facility certified under sub. (4) shall submit a report to the administrator every 2 years following issuance of a certificate of compliance for each model line. This report shall certify that no changes in the design or manufacture of this model line have been made that require recertification under sub. (4) (k).

(g) Each manufacturer shall maintain records of the model and number of wood heaters exempted under sub. (1) (f).

(h) Each commercial owner of a wood heater previously owned by a noncommercial owner for personal use shall maintain records of the name and address of the previous owner.

(i)

1. Unless otherwise specified, all records required under this section shall be maintained by the manufacturer or commercial owner of the affected facility for a period of no less than 5 years.

2. Unless otherwise specified, all reports to the administrator required under this section shall be made to: Stationary Source Compliance Division (EN-341), U.S. Environmental Protection Agency, 401 M Street SW, Washington DC 20460, Attention: Wood Heater Program.

3. A report to the administrator required under this section shall be deemed to have been made when it is properly addressed and mailed, or placed in the possession of a commercial courier service.

(9) PROHIBITIONS.

(a) No person may operate an affected facility that does not have affixed to it a permanent label pursuant to sub. (7) (b), (e), (f) 2. or 3. or (g) 2.

(b) No manufacturer may advertise for sale, offer for sale, or sell an affected facility that:

1. Does not have affixed to it a permanent label pursuant to sub. (7), or

2. Has not been tested when required by sub. (4) (n).

(c) On or after July 1, 1990, no commercial owner may advertise for sale, offer for sale, or sell an affected facility that does not have affixed to it a permanent label pursuant to sub. (7) (b), (e), (f) 1. or 3., or (g) 1. or 2. No person may advertise for sale, offer for sale, or sell an affected facility labeled under sub. (7) (f) 1. except for export.

(d)

1. No commercial owner may advertise for sale, offer for sale or sell an affected facility permanently labeled under sub. (7) (b) unless:

a. The affected facility has affixed to it a removable label pursuant to sub. (7),

b. Any purchaser or transferee is provided with an owner's manual pursuant to sub. (7) (k), and

c. Any purchaser or transferee is provided with a copy of the catalytic combustor warranty (for affected facilities with catalytic combustors).

2. No commercial owner may advertise for sale, offer for sale, or sell an affected facility permanently labeled under sub. (7) (e), (f) 3., or (g), unless the affected facility has affixed to it a removable label pursuant to sub. (7). This prohibition does not apply to wood heaters affected by this section that have been previously owned and operated by a noncommercial owner.

3. A commercial owner other than a manufacturer complies with the requirements of this paragraph if the commercial owner:

a. Receives the required documentation from the manufacturer or a previous commercial owner, and

b. Provides that documentation unaltered to any person to whom the wood heater that it covers is sold or transferred.

(e)

1. In any case in which the administrator revokes a certificate of compliance either for the knowing submission of false or inaccurate information or other fraudulent acts, or based on a finding under sub. (4) (L) 1. b. that the certification test was not valid, the administrator may give notice of that revocation and the grounds for it to all commercial owners.

2. From and after the date of receipt of the notice given under subd. 1., no commercial owner may sell any wood heater covered by the revoked certificate (other than to the manufacturer) unless one of the following has been met:

a. The wood heater has been tested as required by sub. (4) (n) and labeled as required by sub. (6) (g).

b. The model line has been recertified in accordance with this section.

(f) No person may install or operate an affected facility except in a manner consistent with the instructions on its permanent label and in the owner's manual pursuant to sub. (7) (L).

(g) No person may operate an affected facility which was originally equipped with a catalytic combustor if the catalytic element is deactivated or removed.

(h) No person may operate an affected facility that has been physically altered to exceed the tolerance limits of its certificate of compliance.

(i) No person may alter, deface, or remove any permanent label required to be affixed pursuant to sub. (7).

(10) HEARING AND APPEAL PROCEDURES.

(a)

1. Any manufacturer or laboratory affected by an action listed in this subdivision may request a hearing under this subsection within 30 days following receipt of the required notification of the action when the administrator:

a. Denies an application under sub. (4) (e),

b. Issues a notice of revocation of certification under sub. (4) (L),

c. Denies an application for laboratory accreditation under sub. (6), or

d. Issues a notice of revocation of laboratory accreditation under sub. (6) (e).

2. When the administrator issues a notice of revocation under sub. (4) (p), the manufacturer may request a hearing under this subsection within the time limits in sub. (4) (p) 5.

(b) Any hearing request shall be in writing, shall be signed by an authorized representative of the petitioning manufacturer or laboratory, and shall include a statement setting forth with particularity the petitioner's objection to the administrator's determination or proposed determination.

(c)

1. Upon receipt of a request for a hearing under par. (a), the administrator shall request the chief administrative law judge to designate an administrative law judge as presiding officer for the hearing. If the chief administrative law judge replies that no administrative law judge is available to perform this function, the administrator shall designate a presiding officer who has not had any prior responsibility for the matter under review, and who is not subject to the direct control or supervision of someone who has had such responsibility.

2. The hearing shall commence as soon as practicable at a time and place fixed by the presiding officer.

a. A motion for leave to intervene in any proceeding conducted under this section shall set forth the grounds for the proposed intervention, the position and interest of the movant and the likely impact that intervention will have on the expeditious progress of the proceeding. Any person already a party to the proceeding may file an answer to a motion to intervene, making specific reference to the factors in the foregoing sentence and subd. 3. c. within 10 days after service of the motion for leave to intervene.

b. A motion for leave to intervene in a proceeding shall ordinarily be filed before the first prehearing conference or in the absence of a prehearing conference, prior to the setting of a time and place for a hearing. Any motion filed after that time shall include, in addition to the information in subd. 3. a., a statement of good cause for the failure to file in a timely manner. The intervenor shall be bound by any agreements, arrangements and other matters previously made in the proceeding.

c. A motion for leave to intervene may be granted only if the movant demonstrates that his or her presence in the proceeding would not unduly prolong or otherwise prejudice the adjudication of the rights of the original parties, and that movant may be adversely affected by a final order. The intervenor shall become a full party to the proceeding upon the granting of leave to intervene.

d. Persons not parties to the proceeding may move for leave to file amicus curiae briefs. The movant shall state his or her interest and the reasons why the proposed amicus brief is desirable. If the motion is granted, the presiding officer or administrator shall issue an order setting the time for filing such brief. An amicus curia may participate in any briefing after his or her motion is granted, and shall be served with all briefs, reply briefs, motions and orders relating to issues to be briefed.

4. In computing any period of time prescribed or allowed in this section, the day of the event from which the designated period begins to run may not be included. Saturdays, Sundays, and federal legal holidays shall be included. When a stated time expires on a Saturday, Sunday or legal holiday, the stated time period shall be extended to include the next business day.

(d)

1. Upon appointment, the presiding officer shall establish a hearing file. The file shall consist of the notice issued by the administrator under sub. (4) (e), (L) or (p), or (6) (a) or (e), together with any accompanying material, the request for a hearing and the supporting data submitted therewith, and all documents relating to the request for certification or accreditation, or the proposed revocation of either.

2. The hearing file shall be available for inspection by any party, to the extent authorized by law, at the office of the presiding officer or other place designated.

(e) Any party may appear in person, or may be represented by counsel or by any other duly authorized representative.

(f)

1. The presiding officer, upon the request of any party, or at his or her discretion, may order a prehearing conference at a time and place specified to consider the following:

a. Simplification of the issues,

b. Stipulations, admissions of fact, and the introduction of documents,

c. Limitation of the number of expert witnesses,

d. Possibility of agreement disposing of all or any of the issues in dispute,

e. Such other matters as may aid in the disposition of the hearing, including such additional tests as may be agreed upon by the parties.

2. The results of the conference shall be reduced to writing by the presiding officer and made part of the record.

(g)

1. Hearings shall be conducted by the presiding officer in an informal but orderly and expeditious manner. The parties may offer oral or written evidence, subject to the exclusion by the presiding officer of irrelevant, immaterial and repetitious evidence.

2. Witnesses will not be required to testify under oath. However, the presiding officer shall call to the attention of witnesses that their statements may be subject to penalties under 18 USC 1001 for knowingly making false statements or representations or using false documents in any matter within the jurisdiction of any department or agency of the United States.

3. Any witness may be examined or cross-examined by the presiding officer, the parties, or their representatives.

4. Hearings shall be recorded verbatim. Copies of transcripts of proceedings may be purchased by the applicant from the reporter.

5. All written statements, charts, tabulations, and similar data offered in evidence at the hearings shall, upon a showing satisfactory to the presiding officer of their authenticity, relevancy, and materiality, be received in evidence and shall constitute a part of the record.

(h)

1. The presiding officer shall make an initial decision which shall include a written findings and conclusions and the reasons or basis therefor on all the material issues of fact, law, or discretion presented on the record. The findings, conclusions, and written decision shall be provided to the parties and made a part of the record. The initial decision shall become the decision of the administrator without further proceedings unless there is an appeal to the administrator or motion for review by the administrator. Except as provided in subd. 3., any such appeal shall be taken within 20 days of the date the initial decision was filed.

2. On appeal from or review of the initial decision the administrator shall have all the powers which he or she would have in making the initial decision including the discretion to require or allow briefs, oral argument, the taking of additional evidence or the remanding to the presiding officer for additional proceedings. The decision by the administrator shall include written findings and conclusions and the reasons or basis therefor on all the material issues of fact, law, or discretion presented on the appeal or considered in the review.

3. In any hearing requested under par. (a) 2., the presiding officer shall render his initial decision within 60 days of that request. Any appeal to the administrator shall be taken within 10 days of the initial decision, and the administrator shall render his decision in that appeal within 30 days of the filing of the appeal.

(11) GENERAL PROVISIONS EXCLUSIONS. The following provisions of ch. NR 440 do not apply to this section:

(a) Section NR 440.07

(b) Section NR 440.08(1), (3), (4), (5) and (6), and

(c) Section NR 440.15(4).

Wis. Admin. Code Department of Natural Resources NR 440.642

Cr. Register, September, 1990, No. 417, eff. 10-1-90; am. (3) (b) 1. a., (4) (h) 3. c. and (7) (i) 4. b., Register, July, 1993, No. 451, eff. 8-1-93; am. (4) (o) 3. a., (5) (c), Register, December, 1995, No. 480, eff. 1-1-96; corrections in (1) (c) and (4) (L) made under s. 13.93(2m) (b) 1, Register, November, 1999, No. 527; CR 06-109: r. (1) (c) and (d), (3) (a), (4) (h) and (j) 1. a. and b. and (p) 4. b. 2), (6) (c), am. (2) (m) 2., 3. and 4., (3) (b) 1. (intro.), b. and 2., (4) (e) 1. (intro.) and b., (k) 1. and 2. (intro.) and (L) 1. b., (6) (b) 9., (7) (a) 3. b. and d., (f) 3. and (j) 2. e., r. and recr. (3) (b) 1. a., (7) (i) 4. b. and (9) (e), renum. (4) (j) 1. (intro.) to be 1. and am., renum. (4) (p) 4. b. 1) to be (4) (p) 4. b. and am. Register May 2008 No. 629, eff. 6-1-08; corrections in (4) (b) 2., (o) 3. a. and 6., (6) (e) 1. a., (f), (7) (c) to (e), (i), (8) (a), (e), (10) (a) 1. a. and (d) 1. made under s. 13.92(4) (b) 7, Stats., Register May 2008 No. 629; corrections in (9) (a), (c) and (d) 1. made under s. 13.92(4) (b) 7, Stats.