Form 1100-001 NATURAL RESOURCES BOARD AGENDA ITEM Item No. ___3.A.1________ 

(R 9/07) 

SUBJECT:

Request adoption of emergency Board Order AM-48-10(E) and authorization for public hearing for Board Order AM-17-

10, proposed rules affecting NR 400, 405, and 407 pertaining to major source thresholds for sources of greenhouse gas 

emissions. 

FOR: DECEMBER, 2010 BOARD MEETING

TO BE PRESENTED BY: Andrew Stewart, Chief, Permits & Stationary Source Modeling Section 

SUMMARY:

On May 13, 2010, US EPA set greenhouse gas (GHG) thresholds and deadlines in rules generally referred to as the GHG Tailoring 

Rule to define when New Source Review Prevention of Significant Deterioration and Title V operating permits are required for new and 

existing industrial sources [75 FR 31514, June 3, 2010]. 

This action was necessary because without it, the unintended effect of EPA’s emission standard for GHG emissions from motor 

vehicles promulgated on April 1, 2010 would subject literally tens of thousands of sources across the country to some of the most 

complex air permit and emission control regulations. 

Under current state statutes and administrative code, Wisconsin sources will be subject to permit and emission control requirements for 

GHG on January 2, 2011. However, Wisconsin sources will not benefit from the federal tailoring rule limiting applicability under air 

permit and emission control regulations until revisions can be made to Wisconsin administrative code. 

If revisions to current administrative code are not made, many Wisconsin businesses not currently regulated as major sources under air 

permit regulations will be so regulated for GHG. Examples include municipal landfills, hospitals, asphalt plants, wastewater treatment 

plants, small wood fired boilers and agricultural digesters. In addition, this situation, if not remedied, has the potential to overwhelm DNR 

permitting staff, divert resources away from significant environmental issues and delay issuance of construction permits for critical 

projects for expanding businesses. 

It is anticipated that there will be a high degree of interest in this rulemaking. However, this proposal limits the applicability of 

Department permitting consistent with the federal permit program and therefore is not expected to be controversial. The Board has not 

dealt with this issue before. 

RECOMMENDATION: That the Board adopt emergency Board Order AM-48-10(E) and authorize public hearing on 

Board Order AM-17-10.

 

LIST OF ATTACHED MATERIALS:

No Fiscal Estimate Required Yes Attached 

No Environmental Assessment or Impact Statement Required Yes Attached 

No Background Memo Yes Attached 

APPROVED: 

_______/S/____________________________________________________________________ ______11/2/10_________________ 

Bureau Director, John H. Melby, Jr. Date 

______/S/____________________________________________________________________ ______11/3/10_________________ 

Administrator, Suzanne Bangert Date 

______/S/_____________________________________________________________________ ______11/17/10________________ 

Secretary, Matthew J. Frank Date 

cc: Laurie Ross - AD/8 Linda Haddix - LS/8 

 Marney Hoefer - LS/8 R. Eckdale - AM/7 
State of Wisconsin CORRESPONDENCE/MEMORANDUM

DATE: November 16, 2010 FILE REF: 4530 

TO: Natural Resources Board Members 

FROM: Matthew J. Frank, Secretary 

SUBJECT: Background memo on requests for adoption of emergency Order AM-48-10(E) and public 

hearing authorization for Order AM-17-10, proposed rules affecting NR 400, 405 and 407, 

pertaining to major source permit thresholds for sources of greenhouse gas emissions. 

Why is this rule being proposed? 

On April 1, 2010, U.S. EPA (EPA) promulgated the first standard for regulating motor vehicle emissions 

contributing to climate change, i.e., greenhouse gases or GHG. Because of the way the Clean Air Act is 

structured, once GHG emissions from motor vehicles are subject to regulation, stationary sources become 

regulated for these gases. Without further action by EPA, this standard has the unintended affect of 

subjecting literally tens of thousands of sources across the country to some of the most complex air permit 

and emission control regulations. In order to mitigate this unintended effect, EPA promulgated on June 3, 

2010 (75 FR 31514), an additional "tailoring" rule that limits the number of sources subject to the permit 

and emission control regulations. 

Under current state statutes and administrative code, Wisconsin sources will become subject to permit and 

emission control requirements on January 2, 2010. However, Wisconsin sources will not benefit from the 

tailoring rule limiting applicability under air permit and emission control regulations until revisions can 

be made to Wisconsin Administrative Code. This order proposes to revise the administrative code to 

make it consistent with the new federal rule. Specifically, this proposal will define the greenhouse gases 

subject to regulation, establish greenhouse gas emission thresholds, that if exceeded, will trigger 

permitting and emission control requirements, and establish global warming potential factors which are 

used to calculate individual greenhouse gas emissions on an equivalent and comparable basis. 

If revisions to current administrative code are not made, many Wisconsin businesses not currently 

regulated as major sources under air permit regulations will be so regulated. Examples include municipal 

landfills, hospitals, asphalt plants, wastewater treatment plants, small wood fired boilers, and agricultural 

digesters. 

In addition, this situation, if not remedied, has the potential to overwhelm DNR permitting staff, divert 

resources away from significant environmental issues and delay issuance of construction permits for 

critical projects for expanding businesses. 

This emergency order must be put into effect prior to, but as close as possible to the effective date of 

January 2, 2011 for the federal rules, to exclude many Wisconsin businesses with small emissions from 

major permit and control requirements that are not required by federal law. This timing provides for the 

exclusion to be in effect during the development of the permanent rule. 

What event or action triggered the proposal? 

The series of events leading to this proposal began with an Apri1, 2007 Supreme Court decision. 

In Massachusetts v. EPA, 549 US 497, the Supreme Court found that GHG are air pollutants covered by 

the Clean Air Act and directed the EPA to make a finding as to whether emissions of these gases from 

new motor vehicles cause or contribute to air pollution which may be reasonably anticipated to endanger 

public health or welfare. On December 7, 2009 EPA made their official finding, referred to as the 

“endangerment finding” establishing the prerequisite to regulating GHG emissions from motor vehicles. 
 2

Subsequent to this finding, the EPA and US DOT finalized regulations on April 1, 2010 establishing 

standards for GHG emissions from new light duty motor vehicles, starting with model year 2012. 

(Additional information on the endangerment finding and motor vehicle regulation can be found at: 

http://www.epa.gov/climatechange/endangerment.html & 

http://www.epa.gov/oms/climate/regulations.htm) 

The combined effect of the Supreme Court decision and the finalized motor vehicle rule adds GHG to the 

list of pollutants that are regulated under the Clean Air Act. This in turn subjects stationary sources (i.e., 

electric utilities, factories, small business, etc.) to the prevention of significant deterioration (PSD) & Title 

V permitting programs if their GHG emissions exceed established threshold amounts. 

Prior to the series of federal actions described above, the Title V program applied to sources that emit or 

have the potential to emit 100 tons per year of criteria pollutants, while the PSD program applied to 

sources in certain categories at a 100 tons per year level and to other sources at a 250 tons per year level. 

Sources regulated under the PSD program also had thresholds that determined what was a significant 

increase in emissions for new projects at the source that would trigger a review of control requirements. 

These significant increase thresholds for pollutants previously regulated under PSD ranged from 1200 

pounds per year (lead) to 100 tons per year (carbon monoxide). No significance level for GHG previously 

existed under the PSD program. 

EPA recognized it as unrealistic to apply these thresholds to sources of GHG for two primary reasons. 

First, carbon dioxide, a prevalent GHG, is emitted in amounts that are orders of magnitude higher than 

pollutants such as particulate matter and sulfur dioxide. Applying these thresholds to sources of carbon 

dioxide emissions would bring literally hundreds of thousands, maybe millions, of sources into the PSD 

program nationwide forcing state agencies to process permits in numbers that far exceed what their 

current administrative resources could accommodate. Second, the combined emissions from the vast 

majority of these sources make up a small percentage of the total. Regulating these sources under 

programs designed to control emissions from sources such as electric utilities, large manufactures and 

foundries would be highly ineffective and result in little or no environmental benefit. 

In order to prevent this from happening, EPA issued on June 3, 2010, a regulation known as the GHG 

Tailoring Rule. This rule establishes a GHG emission applicability threshold for the PSD and Title V 

programs at 100,000 tons per year and establishes a threshold for what will be considered a significant 

increase in GHG emissions at 75,000 tons per year. In addition, this regulation phases in PSD and Title V 

requirements in two steps. 

Wisconsin rules need to be revised to incorporate the higher applicability and significance thresholds, and 

phased in approach established by the federal tailoring rule to avoid GHG emissions from stationary 

sources being subject to regulation for GHG on January 2, 2011. 

What issues are addressed by this rule? 

The primary issue being addressed by this rule is to make Wisconsin consistent with federal regulations in 

order to prevent the unintended applicability of the Title V and PSD program to small sources of GHG 

emissions in Wisconsin. 

The following table shows the difference between the current thresholds in Wisconsin and the finalized 

thresholds for GHG under the federal tailoring rule. If Wisconsin does not revise its regulations, sources 

that emit between 100 and 100,000 tons per year GHG will be subject to legal uncertainty and potentially 

complex control determinations. In addition, thousands of sources which did not require a Title V permit 

before will now require one. The administrative burden for each of these programs is extremely high for 
 3

both the permittee and the DNR since most of these permittees are not used to being regulated under the 

Clean Air Act. 

Comparison of GHG Thresholds 

Current WI Thresholds Finalized Thresholds under the 

Federal Tailoring Rule 

PSD Major Source Thresholds 100 and 250 tpy 100,000 tpy 

PSD Major Modification 

Significance level 0 tpy increase 75,000 tpy increase 

Title V permit threshold 100 tpy 100,000 tpy 

Summary of the Rules 

The rule proposes to: 

 Define greenhouse gases as the six pollutants listed in the endangerment finding (carbon dioxide, 

methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride); 

 Define how to calculate a carbon dioxide equivalency (CO2e) for the six pollutants; 

 Define a major source of GHG emissions at 100,000 tons per year CO2e; 

 Define a significance level for PSD permitting at 75,000 tons per year CO2e; 

 Establish a two step phased-in implementation schedule; 

 Define an inclusion level for emission sources that will be included in a Title V permit; and 

 Establish the global warming potential for the greenhouse gases being regulated. 

The first five bullets summarize requirements identical to federal regulations. The last two however are 

not explicitly established in the federal tailoring regulation and warrant further explanation. 

Defining an inclusion level for emission sources that will be covered by a Title V permit. It is necessary to 

propose an inclusion level for smaller GHG emitting units at sources subject to Title V permitting 

requirements as it is the sum of GHG emissions from these smaller sources that are compared to the major 

source threshold being proposed. Existing inclusion levels in Wisconsin’s Title V rules for other 

pollutants are generally set at 10 percent of a significance level applicable to the pollutant of concern. 

With the exception of nitrous oxides, this order proposes to establish the inclusion level for the other 

greenhouse gases at 10 percent of the PSD major source threshold, or 10,000 tons of CO2e. 

An inclusion level for nitrous oxide already exists in Wisconsin’s Title V rules, as it is regulated in 

Wisconsin as a hazardous air contaminant. The current level is lower than what would be established 

under this order so there is no need to revise it for greenhouse gas regulation. 

Establishing the global warming potential for the greenhouse gases being regulated. It is necessary to 

propose the global warming potential (GWP) for the greenhouse gases being regulated as it is an essential 

component of how the carbon dioxide equivalency is calculated which in turn determines whether or not a 

source is subject to regulation. In the federal tailoring rule, EPA applies the GWP values from the 

Mandatory Greenhouse Gas Reporting rule, by reference to Table A-1 to Subpart A of 40 CFR Part 98, in 

its definition of carbon dioxide equivalency, omitting the specific GWP values themselves. This order 

proposes to establish GWP values directly in the rule, using the same EPA values in Table A-1 to 40 CFR 

Subpart 98. (See Table B in Section 4 – 405.07(9) of the proposed order and rule) 
 4

How does this proposal affect existing policy? 

This proposal modifies existing policy by setting the major source threshold for sources of GHG 

emissions at 100,000 ton per year of CO2e rather than at 100 and 250 tons per year. It also increases the 

significance threshold to determine the level for subjecting modifications to the PSD permitting program 

from 0 (any increase) to 75,000 tons per year of CO2e. In addition it establishes a phased-in 

implementation schedule. 

January 2, 2011 – June 30, 2011

 Only sources currently subject to the PSD permitting program (i.e., those that are newly-constructed 

or modified in a way that significantly increases emissions of a pollutant other than GHGs) would be 

subject to permitting requirements for their GHG emissions under PSD. 

 For these projects, only GHG increases of 75,000 tpy or more of total GHG, on a CO2e basis, would 

need to determine the Best Available Control Technology for their GHG emissions. 

 Similarly for the Title V operating permit program, only sources currently subject to the program (i.e., 

newly constructed or existing major sources for a pollutant other than GHG) would be subject to Title 

V requirements for GHG. 

 During this time, no sources would be subject to Clean Air Act permitting requirements due solely to 

GHG emissions. 

July 1, 2011 and after

 PSD permitting requirements will cover for the first time new construction projects that emit GHG 

emissions of at least 100,000 tpy even if they do not exceed the permitting thresholds for any other 

pollutant. Modifications at existing facilities that increase GHG emissions by at least 75,000 tpy will 

be subject to permitting requirements, even if they do not significantly increase emissions of any 

other pollutant. 

 Title V operating permit requirements will, for the first time, apply to sources based on their GHG 

emissions even if they would not apply based on emissions of any other pollutant. Facilities that emit 

at least 100,000 tpy CO2e will be subject to Title V permitting requirements. 

Has the Board dealt with these issues before? If so, when and why? 

The Board has not dealt with this issue before.

Who will be impacted by the proposed rule? How will they be impacted? 

This proposal will lessen the impact of changes at the federal level for existing and new major and minor 

sources of GHG emissions in Wisconsin. 

This proposal will ensure that thousands of small sources of GHG will not become subject to the Title V 

and PSD permit programs. It will also ensure that increases of CO2e emissions between 0 and 75,000 tons 

per year will not trigger complex control requirements at stationary sources. Furthermore, it will prevent 

increases of emissions of other pollutants currently regulated under the minor source construction 

program from becoming subject to the PSD program. Without the revisions proposed in this rule small 

sources such as schools with boilers and homes with residential wood boilers will become subject to the 

PSD and Title V permit programs. 

The greenhouse gas endangerment finding (74 FR 66496), EPA’s memorandum entitled “Interpretation of 

Regulations that Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) 

Permit Program” (75 FR 17004) and the motor vehicle (75 FR 25324) and tailoring (75 FR 31514) rules 

have been challenged by various parties, nationally. In the event that courts or Congress stay or otherwise 

invalidate the finding, interpretation and both rules related to greenhouse gases the Department will act to 

invalidate the emergency rule and re-evaluate the need for a permanent rule in light of the court’s or 

Congressional actions. 
 5

Information on environmental analysis. 

Under s. NR 150.03(3), Wis. Adm. Code, an environmental analysis is not needed because this proposal 

is considered a Type III Action. A Type III Action is one that normally does not have the potential to 

cause significant environmental effects, normally does not significantly affect energy usage, and normally 

does not involve unresolved conflicts in the use of available resources. 

Small business analysis.

The Department did not conduct an independent analysis of the effect on small business, but is relying on 

the analysis performed by the EPA. This analysis can be found in EPA’s rule docket for Prevention of 

Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Proposed Rule [EPA-HQ-OAR2009-0517; FRL-8966-7], October 27, 2009 (74 FR 55292). 

The proposed rules will prevent unintended impacts to small businesses resulting from promulgation by 

EPA of emission standards for GHG, by limiting the number of small businesses that may become subject 

to the Title V and PSD permitting programs. 
Wisconsin Department of Administration 

Division of Executive Budget and Finance 

DOA-2048 (R10/2000) 

Fiscal Estimate — 2009 Session

 Original Updated LRB Number 

 

Amendment Number if 

Applicable 

 Corrected Supplemental Bill Number 

 

Administrative Rule Number 

AM-17-10, AM-48-10(E) 

Subject 

Order AM-17-10 and emergency order AM-48-10(E), proposed rules affecting NR 400, 405 and 407, pertaining to major source permit thresholds for sources of greenhouse gas emissions 

Fiscal Effect 

State: No State Fiscal Effect

Check columns below only if bill makes a direct appropriation 

or affects a sum sufficient appropriation. 

 Increase Existing Appropriation Increase Existing 

Revenues 

 Decrease Existing Appropriation Decrease Existing 

 Increase Costs — May be possible to absorb 

within agency’s budget. 

 Yes No 

 Decrease Costs 

Local: No Local Government Costs 

5. Types of Local Governmental Units Affected: 

 Towns Villages Cities 

 Counties Others 

1. Increase Costs 

 Permissive 

Mandatory 

2. Decrease Costs 

3. Increase Revenues 

 Permissive 

Mandatory 

4. Decrease Revenues School Districts WTCS Districts

Fund Sources Affected 

 GPR FED PRO PRS SEG SEG-S 

Affected Chapter 20 Appropriations 

 

Assumptions Used in Arriving at Fiscal Estimate 

This proposal limits the applicability of Department permitting consistent with the federal permit program, resulting 

in fewer permit actions. This translates to an expected cost avoidance for both the Department and the private sector 

over what costs will be imposed if the proposal is not approved. The following information and assumptions were 

used in estimating the cost avoidance, which are summarized in the table on the next page. (Note that estimates in 

this analysis are based on EPA proposed rules published in September, 2009. EPA's final rule establishes 

applicability thresholds much higher than originally proposed, therefore, the cost avoidance numbers go up 

significantly from what is presented here.) 

National average dollar per permit costs and national numbers of permits avoided comes from Tables 3-1 and 3-2 in 

US EPA’s Regulatory Impact Analysis for the Proposed Greenhouse Gas Tailoring Rule, Final Report, September, 

2009.

Number of permits avoided in Wisconsin was determined by taking a percentage of the national estimate of permits 

avoided. 

Number of industrial sources subject to PSD - Currently the Department issues 8-10% of the nation's PSD 

permits annually due the historically large manufacturing base in Wisconsin. While there will be some correlation 

between the industrial base and sources of greenhouse gas emissions it is not expected to be as high as what the 

Department currently sees under the existing PSD program. For the purposes of this Fiscal Estimate 5% is being 

applied to the national estimate of 3,299 permits avoided. 

Number of commercial and residential sources subject to PSD - Based on an assumption that Wisconsin's number 

of sources is proportional to percentage of the national population, 2% is being applied to the national estimate of 

37,197 permits avoided. 

Long-Range Fiscal Implications 

 

Prepared By: 

Joe Polasek 

Telephone No. 

266-2794 

Agency 

Department of Natural Resources 

Authorized Signature Telephone No. 

266-2794 

Date (mm/dd/ccyy) 

 
Wisconsin Department of Administration 

Division of Executive Budget and Finance 

DOA-2048 (R10/2000) 

Fiscal Estimate — 2009 Session

Page 2 Assumptions Narrative 

LRB Number 

 

Amendment Number if Applicable

 

Continued Bill Number 

 

Administrative Rule Number 

AM-17-10, AM-48-10(E)

Assumptions Used in Arriving at Fiscal Estimate – Continued 

Number of new industrial sources subject to Title V - Currently the Department issues approximately 3% of the 

nations Title V permits. Therefore 3% of the national estimate of 195,895 permits avoided is used in this Fiscal 

Estimate.

Number of new commercial and residential sources subject to Title V - Based on an assumption that Wisconsin's 

number of sources is proportional to percentage of the national population, 2% is being applied to the national 

estimate of 5,956,513 permits avoided. 

US EPA notes that significant uncertainties exist in their estimates due to the lack of historical record and permitting 

experience upon which to base resource needs for including greenhouse gas sources in the PSD and Title V 

permitting programs. The Department does not have Wisconsin specific information that allows the estimates to be 

better refined for this Fiscal Estimate. 

Source cost to 

obtain permit 

Agency cost to 

issue permit 

Number 

of permits 

Avoided Cost 

Private Sector 

Avoided Cost 

Department 

New Source Permits 

Source subject to PSD 

Permitting-Industrial $84,530 $46,350 165 $13,947,450 (annual) 

$7,647,750 

(annual) 

Source subject to PSD 

Permitting-Commercial 

& Residential 

$16,887 $4,986 744 $12,563,928 

(annual) 

$3,709,584 

(annual) 

Title V Permits 

New Industrial $46,350 $19,688 5877 $272,398,950 

(one time) 

$115,706,376 

(one time) 

New Commercial & 

Residential $4,986 $1,978 119,130 $593,982,180 (one time) 

$235,639,140 

(one time) 
Wisconsin Department of Administration 

Division of Executive Budget and Finance 

DOA-2047 (R10/2000) 

Fiscal Estimate Worksheet — 2009 Session 

Detailed Estimate of Annual Fiscal Effect 

 Original Updated 

LRB Number Amendment Number if Applicable

 

 Corrected Supplemental Bill Number Administrative Rule Number 

 AM-17-10, AM-48-10(E)

Subject 

Order AM-17-10 and emergency order AM-48-10(E), proposed rules affecting NR 400, 405, and 407, pertaining to major source permit thresholds for sources of greenhouse gas emissions 

One-time Costs or Revenue Impacts for State and/or Local Government (do not include in annualized fiscal effect): 

 

Annualized Costs: Annualized Fiscal Impact on State Funds from:

Increased Costs Decreased Costs A. State Costs by Category 

State Operations — Salaries and Fringes $ 0 $ - 0

(FTE Position Changes) ( FTE ) (- FTE )

State Operations — Other Costs - 

Local Assistance - 

Aids to Individuals or Organizations - 

Total State Costs by Category $ $ - 

Increased Costs Decreased Costs B. State Costs by Source of Funds 

GPR $ 0 $ - 0

FED - 

PRO/PRS - 

SEG/SEG-S - 

Increased Revenue Decreased Revenue State Revenues 

GPR Taxes 

Complete this only when proposal will 

increase or decrease state revenues (e.g., 

tax increase, decrease in license fee, etc.) $ 0 $ - 0

GPR Earned - 

FED - 

PRO/PRS - 

SEG/SEG-S - 

Total State Revenues $ 0 $ - 0

Net Annualized Fiscal Impact 

State Local

Net Change in Costs $ 0 $ 0

Net Change in Revenues $ 0 $ 0

Prepared By: 

Joe Polasek 

Telephone No. 

266-2794 

Agency 

Department of Natural Resources 

Authorized Signature Telephone No. 

266-2794 

Date (mm/dd/ccyy) 

 
1 

ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD 

AMENDING AND CREATING RULES 

The Wisconsin Natural Resources Board proposes an emergency order to amend 407.02 (4) (b) (intro.), 

and Table 3 in 407.05 (5) and to create NR 400.02 (74m), 400.03 (3) (om), and (4) (go) and (ki), 405.02 

(28m), 405.07 (9), 407.02 (8m) and 407.075 relating to major source permitting thresholds for sources of 

greenhouse gas emissions and affecting small business. 

AM-48-10(E) 

Analysis Prepared by the Department of Natural Resources

1. Statute interpreted: Sections 227.11 (2) (a), 227.14 (1m) (b), 285.11 (1) and (16), and 285.60, Stats. 

The State Implementation Plan developed under s. 285.11 (6), Stats., is revised. 

2. Statutory authority: Sections 227.11 (2) (a), 227.14 (1m) (b), 227.24 (1) (a), 285.11 (1) and (16), Stats. 

3. Explanation of agency authority: Section 227.11 (2) (a), Stats., gives state agencies general 

rulemaking authority. Section 227.14 (1m) (b), Stats., allows the Department to use the format of federal 

regulations in preparing a proposed rule if it determines that all or part of a state environmental regulatory 

program is to be administered according to standards, requirements or methods which are similar to 

standards, requirements or methods specified for all or part of a federal environmental program. Section 

227.24 (1)(a), Stats., gives the Department the authority to promulgate a rule as an emergency rule 

without complying with the notice, hearing, and publication requirements under ch. 227, Stats., if 

necessary for the preservation of the public welfare. Section 285.11 (1), Stats., gives the Department 

authority to promulgate rules consistent with ch. 285, Stats. Section 285.11 (16), Stats., requires the 

Department to promulgate rules that specify the amounts of emissions that result in a stationary source 

being classified as a major source. This section requires the rules to be consistent with but no more 

restrictive than the federal Clean Air Act. 

4. Related statute or rule: None 

5. Plain language analysis: On April 1, 2010, US EPA promulgated the first standard for regulating motor 

vehicle gases contributing to climate change, i.e., greenhouse gases or GHG. Because of the way the 

Clean Air Act (CAA) is structured, once GHG emissions from motor vehicles are subject to regulation, 

stationary sources become regulated for these gases. Without further action by EPA, this standard has the 

unintended affect of subjecting literally tens of thousands of sources across the country to some of the 

most complex air permit and emission control regulations. In order to mitigate this unintended effect, EPA 

promulgated on June 3, 2010 (75 FR 31514), an additional "tailoring" rule that limits the number of 

sources subject to the permit and emission control regulations. 

Under current state statutes and administrative code, Wisconsin sources will become subject to permit 

and emission control requirements on January 2, 2010. However, Wisconsin sources will not benefit from 

the tailoring rule limiting applicability under air permit and emission control regulations until revisions can 

be made to Wisconsin administrative code. This order proposes to revise the administrative code to make 

it consistent with the new federal rule. 

Specifically, this proposal will define the greenhouse gases subject to regulation, establish greenhouse 

gas emission thresholds, that if exceeded, will trigger permitting and emission control requirements, and 

establish global warming potential factors which are used to calculate individual greenhouse gas 

emissions on an equivalent and comparable basis. 

6. Summary of, and comparison with, existing or proposed federal regulation: 

U.S. EPA promulgated rules in 40 CFR parts 51 and 70 as revised on June 3, 2010 (75 FR 31514) to 

relieve overwhelming permitting burdens that would, in the absence of these rule, fall on permitting 

authorities and sources. They accomplished this by tailoring the applicability criteria that determine which 

GHG emission sources become subject to the PSD and Title V programs of the CAA. In particular, EPA 
2 

established with this rulemaking a phase-in approach for PSD and Title V applicability, and established the 

first two steps of the phase-in for the largest emitters of GHG. 

Under these federal rules, the first step, which will begin on January 2, 2011, PSD or Title V requirements 

will apply to sources’ GHG emissions only if the sources are subject to PSD or Title V anyway due to their 

non-GHG pollutants. Therefore, EPA will not require source owners or operators to evaluate whether they 

are subject to PSD or Title V requirements solely on account of their GHG emissions. Specifically, for 

PSD, Step 1 requires that as of January 2, 2011, the applicable requirements of PSD, most notably, the 

best available control technology (BACT) requirement, will apply to projects that increase net GHG 

emissions by at least 75,000 tpy carbon dioxide equivalent emissions, but only if the project also 

significantly increases emissions of at least one non-GHG pollutant. For the Title V program, only owners 

or operators of existing sources with, or new sources obtaining, Title V permits for non-GHG pollutants will 

be required to address GHG during this first step. 

The second step of the federal rules, beginning on July 1, 2011, will phase in additional large sources of 

GHG emissions. New sources as well as existing sources not already subject to Title V that emit, or have 

the potential to emit, at least 100,000 tpy carbon dioxide equivalent emissions will become subject to the 

PSD and Title V requirements. In addition, sources that emit or have the potential to emit at least 100,000 

tpy carbon dioxide equivalent emissions and that undertake a modification that increases net emissions of 

GHG by at least 75,000 tpy carbon dioxide equivalent emissions will also be subject to PSD requirements. 

An important provision of these federal rules is that PSD and Title V permitting is only triggered when both 

the appropriate traditional mass-based applicability threshold, i.e., 100 tpy or 250 tpy, and the GHG 

carbon dioxide equivalent emission threshold are exceeded. 

U.S. EPA also makes certain commitments to conduct studies related to potential regulatory burdens 

which could result from lowering the applicability threshold from what is contained in the current rule. 

Except for these federal commitments, the rules proposed here are consistent with the federal rules. 

The greenhouse gas endangerment finding (74 FR 66496), EPA’s memorandum entitled “Interpretation of 

Regulations that Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) 

Permit Program” (75 FR 17004) and the motor vehicle (75 FR 25324) and tailoring (75 FR 31514) rules 

have been challenged by various parties, nationally. In the event that courts or Congress stay or otherwise 

invalidate the finding, interpretation and both rules related to greenhouse gases the Department will act to 

invalidate the emergency rule and re-evaluate the need for a permanent rule in light of the court’s or 

Congressional actions. 

7. Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan, and Minnesota): The 

states of Illinois and Minnesota are US EPA delegated states so they do not need to amend their state 

rules to implement the provision of the federal tailoring rule. Michigan and Iowa are SIP approved states 

like Wisconsin, so they will need to implement rules similar to what are being proposed here in order to 

modify their permit program and implement the provisions of the federal rule. 

8. Summary of factual data and analytical methodologies used and how any related findings 

support the regulatory approach chosen: The proposed rule is based on the federal rule changes. 

Information on the federal rule changes can be obtained from federal registers published on October 27, 

2009 (74 FR 55292), October 30, 2009 (74 FR 56260), and June 3, 2010 (75 FR 31514). 

9. Analysis and supporting documents used to determine the effect on small business or in 

preparation of an economic impact report: The Department did not conduct an independent analysis of 

the effect on small business, but is relying on the analysis performed by the US EPA. This analysis can be 

found in US EPA’s rule docket for Prevention of Significant Deterioration and Title V Greenhouse Gas 

Tailoring Rule; Proposed Rule [EPA-HQ-OAR-2009-0517; FRL-8966-7], October 27, 2009 (74 FR 55292). 

10. Effect on small business: This proposal will prevent unintended impacts to small businesses 

resulting from promulgation by U.S. EPA of emission standards for GHG, by limiting the number that may 

become subject to the Title V and PSD permitting programs. 
3 

11. Agency contact person: Andrew Stewart, 608-266-6876, andrew.stewart@wisconsin.gov 

SECTION 1. NR 400.02 (74m) is created to read: 

NR 400.02 (74m) “Greenhouse gases” or “GHG” means an air pollutant that is the aggregate of 

carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6), hydrofluorocarbons 

(HFCs), and perfluorocarbons (PFCs). 

SECTION 2. NR 400.03(3) (om) and (4) (go) and (ki) are created to read: 

NR 400.03 (3) (om) “SF6” – sulfur hexafluoride 

(4) (go) “GHG” – greenhouse gases 

(ki) “PFC” – perfluorocarbon 

SECTION 3. NR 405.02 (28m) is created to read: 

NR 405.02 (28m) “Subject to regulation under the Act” means, for any air contaminant, that the 

contaminant is subject to either a provision of the Act, or a nationally applicable regulation codified by 

the administrator in title 40, Chapter I, subchapter C of the CFR, that requires actual control of the 

quantity of air emissions of the contaminant, and that the control requirement has taken effect and is 

operative to control, limit, or restrict the quantity of emissions of the contaminant released from the 

regulated activity. 

SECTION 4. NR 405.07 (9) is created to read: 

 NR 405.07 (9) (a) Emissions of greenhouse gases at a stationary source shall only be subject to 

regulation under the Act as follows: 

1. Beginning January 2, 2011, if the stationary source is any of the following: 

a. A new major stationary source for a regulated NSR contaminant other than GHG, which will 

emit or will have the potential to emit 75,000 tpy or more of GHG on a carbon dioxide equivalent basis. 
4 

b. An existing major stationary source for a regulated NSR contaminant other than GHG, which 

will have an emissions increase of a regulated NSR contaminant other than GHG, and an emissions 

increase of 75,000 tpy or more of GHG on a carbon dioxide equivalent basis. 

2. Beginning July 1, 2011, in addition to the provisions in par. (a), if the stationary source is any 

of the following: 

a. A new stationary source that will emit or have the potential to emit 100,000 tpy or more of 

GHG on a carbon dioxide equivalent basis. 

b. An existing stationary source that emits or has the potential to emit 100,000 tpy or more of 

GHG on a carbon dioxide equivalent basis, and the source undertakes a physical change or change in the 

method of operation that will result in an emissions increase of 75,000 tpy or more of GHG on a carbon 

dioxide equivalent basis. 

Note: The Department intends to regulate GHG consistent with the 40 CFR 51.166 (June 3, 

2010). In the event of litigation or congressional action which impacts the federal regulations, the 

Department will commence rulemaking to remain consistent with the resulting federal regulations. 

(b) For purposes of this subsection, emissions of GHG on a carbon dioxide equivalent basis shall 

be determined by multiplying the mass amount of emissions, in tons per year, for each of the constituent 

gases in the pollutant GHG by the associated global warming potential for the gas in Table B, and then 

summing the products obtained. 

Table B 

Global Warming Potentials (GWP) 

Greenhouse Gas 

(a) 

Chemical Abstract 

Service Number1

(b) 

Chemical Formula 

(c) 

GWP 

(d) 

1. Carbon dioxide 124-38-9 CO2 1 

2. Methane 74-82-8 CH4 21 

3. Nitrous oxide 10024-97-2 N2O 310 

4. HFC-23 75-46-7 CHF3 11,700 

5. HFC-32 75-10-5 CH2F2 650 

6. HFC-41 593–53–3 CH3F 150 

7. HFC-125 354-33-6 C2HF5 2,800 

8. HFC-134 359–35–3 C2H2F4 1,000 

9. HFC-134a 811-97-2 CH2FCF3 1,300 

10. HFC-143 430–66–0 C2H3F3 300 

11. HFC-143a 420-46-2 C2H3F3 3,800 
5 

Table B 

Global Warming Potentials (GWP) 

 Greenhouse Gas 

(a) 

Chemical Abstract 

Service Number1

(b) 

Chemical Formula 

(c) 

GWP 

(d) 

12. HFC-152 624–72–6 CH2FCH2F 53 

13. HFC-152a 75-37-6 CH3CHF2 140 

14. HFC-161 353–36–6 CH3CH2F 12 

15. HFC-227ea 431-89-0 C3HF7 2,900 

16. HFC-236cb 677–56–5 CH2FCF2CF3 1,340 

17. HFC-236ea 431-63-0 CHF2CHFCF3 1,370 

18. HFC-236fa 690-39-1 C3H2F6 6,300 

19. HFC-245ca 679–86–7 C3H3F5 560 

20. HFC-245fa 460–73–1 CHF2CH2CF3 1,030 

21. HFC-365mfc 406–58–6 CH3CF2CH2CF3 794 

22. HFC-43-10mee 138495-42-8 CF3CFHCFHCF2CF3 1,300 

23. Sulfur hexafluoride 2551-62-4 SF6 23,900 

24. Trifluoromethyl sulphur 

pentafluoride 

 373-80-8 SF5CF3 17,700 

25. Nitrogen trifluoride 7783–54–2 NF3 17,200 

26. PFC-14 (Perfluoromethane) 75-73-0 CF4 6,500 

27. PFC-116 (Perfluoroethane) 76-16-4 C2F6 9,200 

28. PFC-218 (Perfluoropropane) 76-19-7 C3F8 7,000 

29. Perfluorocyclopropane 931–91–9 C-C3F6 17,340 

30. PFC-3-1-10 (Perfluorobutane) 355-25-9 C4F10 7,000 

31. Perfluorocyclobutane 115-25-3 C-C4F8 8,700 

32. PFC-4-1-12 (Perfluoropentane) 678-26-2 C5F12 7,500 

33. PFC-5-1-14 (Perfluorohexane) 355-42-0 C6F14 7,400 

34. PFC–9–1–18 306–94–5 C10F18 7,500 

35. HCFE–235da2 (Isoflurane) 26675–46–7 CHF2OCHClCF3 350 

36. HFE–43–10pccc (H–Galden 

1040x) 

 E1730133 CHF2OCF2OC2F4OCHF2 1,870 

37. HFE–125 3822–68–2 CHF2OCF3 14,900 

38. HFE–134 1691–17–4 CHF2OCHF2 6,320 

39. HFE–143a 421–14–7 CH3OCF3 756 

40. HFE–227ea 2356–62–9 CF3CHFOCF3 1,540 

41. HFE–236ca12 (HG–10) 78522–47–1 CHF2OCF2OCHF2 2,800 

42. HFE–236ea2 (Desflurane) 57041–67–5 CHF2OCHFCF3 989 

43. HFE–236fa 20193–67–3 CF3CH2OCF3 487 

44. HFE–245cb2 22410–44–2 CH3OCF2CF3 708 

45. HFE–245fa1 84011–15–4 CHF2CH2OCF3 286 

46. HFE–245fa2 1885–48–9 CHF2OCH2CF3 659 

47. HFE–254cb2 425–88–7 CH3OCF2CHF2 359 

48. HFE–263fb2 460–43–5 CF3CH2OCH3 11 

49. HFE–329mcc2 67490–36–2 CF3CF2OCF2CHF2 919 

50. HFE–338mcf2 156053–88–2 CF3CF2OCH2CF3 552 

51 HFE–338pcc13 (HG–01) 188690–78–0 CHF2OCF2CF2OCHF2 1,500 

52. HFE–347mcc3 28523–86–6 CH3OCF2CF2CF3 575 

53. HFE–347mcf2 E1730135 CF3CF2OCH2CHF2 374 

54. HFE–347pcf2 406–78–0 CHF2CF2OCH2CF3 580 
6 

Table B 

Global Warming Potentials (GWP) 

 Greenhouse Gas 

(a) 

Chemical Abstract 

Service Number1

(b) 

Chemical Formula 

(c) 

GWP 

(d) 

55. HFE–356mec3 382–34–3 CH3OCF2CHFCF3 101 

56. HFE–356pcc3 160620–20–2 CH3OCF2CF2CHF2 110 

57. HFE–356pcf2 E1730137 CHF2CH2OCF2CHF2 265 

58. HFE–356pcf3 35042–99–0 CHF2OCH2CF2CHF2 502 

59. HFE–365mcf3 378–16–5 CF3CF2CH2OCH3 11 

60. HFE–374pc2 512–51–6 CH3CH2OCF2CHF2 557 

61. HFE–449sl (HFE–7100) 

Chemical blend 

 163702–07–6 

 163702–08–7 

C4F9OCH3

(CF3)2CFCF2OCH3

297 

62. HFE–569sf2 (HFE–7200) 

Chemical blend 

 163702–05–4 

 163702–06–5 

C4F9OC2H5

(CF3)2CFCF2OC2H5

59 

63. Sevoflurane 28523–86–6 CH2FOCH(CF3)2 345 

64. HFE–356mm1 13171–18–1 (CF3)2CHOCH3 27 

65. HFE–338mmz1 26103–08–2 CHF2OCH(CF3)2 380 

66. (Octafluorotetramethylene) 

hydroxymethyl group 

 NA X-(CF2)4CH(OH)-X 73 

67. HFE–347mmy1 22052–84–2 CH3OCF(CF3)2 343 

68. Bis (trifluoromethyl)-methanol 920–66–1 (CF3)2CHOH 195 

69. 2,2,3,3,3-pentafluoropropanol 422–05–9 CF3CF2CH2OH 42 

70. PFPMIE NA CF3OCF(CF3)CF2OCF2OCF3 10,300 

1

 The Chemical Abstract Service or CAS numbers refer to the unique chemical abstracts service 

registry number assigned to a specific chemical, isomer or mixture of chemicals or isomers and recorded 

in the CAS chemical registry system by the Chemical Abstracts Service, PO Box 3012, Columbus OH 

42310, phone: 1−614−447−3600. 

 Note: The GWPs in Table B are based upon the GWPs codified by the EPA at 40 CFR part 98, 

Subpart A, Table A-1, as of October 22, 2010. 

SECTION 5. NR 407.02 (4) (b) (intro.) is amended to read: 

NR 407.02 (4) (b) (intro.) A stationary source that directly emits, or has the potential to emit, 100 

tpy or more of any air contaminant subject to regulation under the Act other than particulate matter 

emissions. For particulate matter emissions, a stationary source is a major source if it has emits, or has the 

potential to emit, 100 tpy of PM10 emissions. The fugitive emissions of a stationary source may not be 

considered in determining whether it is a major source for the purposes of this definition, unless the 

source belongs to one of the following categories of stationary sources: 

SECTION 6. NR 407.02 (8m) is created to read: 
7 

NR 407.02(8m) “Subject to regulation under the Act” has the meaning given in s. NR 405.02 

(28m). 

SECTION 7. A column heading in Table 3 of NR 407.05 is amended, a new table entry added in 

alphabetical order, and footnotes added to read: 

NR 407.05 (5) Table 3 

Air Contaminant Name 

Sources of 

Regulation (See 

Footnotes Below) 

Chemical 

Abstract Service 

Number7

Inclusion Level 

(lbs/yr unless 

otherwise noted) 

Greenhouse gases 10 * 10,000 tpy on a 

carbon dioxide 

equivalent basis9

9

 Emissions of GHG on a carbon dioxide equivalent basis shall be determined according to s. NR 

405.07 (9) (b). 

10Federal greenhouse gases listed under 40 CFR Part 70. 

SECTION 8. NR 407.075 is created to read: 

NR 407.075 Greenhouse gases. Emissions of greenhouse gases at a stationary source shall only be 

subject to regulation under the Act if, on or after July 1, 2011, the source emits or has the potential to emit 

100,000 tpy or more of GHG on a carbon dioxide equivalent basis. For purposes of this section, emissions 

of GHG on a carbon dioxide equivalent basis shall be determined according to s. NR 405.07 (9) (b). 

SECTION 9. STATEMENT OF EMERGENCY. The emergency rule procedure, pursuant to s. 227.24, 

Stats., is necessary and justified in establishing rules to protect the public welfare. Preservation of the 

public welfare necessitates putting the forgoing rules into effect prior to the time that it would take if the 

Department complied with normal procedures. 

 On April 1, 2010, the U.S. EPA promulgated the first emission standard for gases contributing to 

climate change, i.e., greenhouse gases or GHG, which will become effective on January 2, 2011. While 

these standards target automobile emissions, under the Clean Air Act, this action will unintentionally 
8 

subject stationary sources across the country to complex prevention of significant deterioration (PSD) and 

Title V permitting and emission control requirements. U.S. EPA attempted to mitigate this unintended 

effect by promulgating additional rules, which became effective on June 3, 2010, limiting applicability of 

the permitting requirements. However, Wisconsin sources will not be affected by the new U.S. EPA rules 

since existing state statute and administrative code do not contain the same applicability limiting 

provisions. State rules consistent with those at the federal level must be in effect on January 2, 2011 in 

order to provide the relief U.S. EPA intended for Wisconsin sources. Without these proposed emergency 

rules, many sources, including municipal landfills, hospitals, asphalt plants, wastewater treatment plants, 

small wood fired boilers and agricultural digesters, will be considered major emissions sources of GHG, 

and therefore subject to the permit and emission control requirements for GHG. These permit and control 

requirements were never intended or designed to address the type or size of sources that could now be 

affected. Without the proposed changes, the existing rules would have the potential to overwhelm DNR 

permitting staff, divert resources away from significant environmental issues, and delay issuance of 

construction permits for critical projects for expanding businesses. 

 Therefore, the Department finds that the proposed emergency rules are necessary and appropriate 

for the preservation of the public welfare. 

 

SECTION 10. EFFECTIVE DATE. This rule shall take effect on the day of publication in the official 

state newspaper as provided in s. 227.24 (1) (c), Stats. 
9 

SECTION 11. BOARD ADOPTION. This rule was approved and adopted by the State of Wisconsin 

Natural Resources Board on _______________________. 

Dated at Madison, Wisconsin _________________________________. 

STATE OF WISCONSIN 

DEPARTMENT OF NATURAL RESOURCES 

By__________________________________ 

 Matthew J. Frank, Secretary 

(SEAL) 
1 

ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD 

AMENDING AND CREATING RULES 

The Wisconsin Natural Resources Board proposes an order to amend 407.02 (4) (b) (intro.), and Table 3 in 

407.05 (5) and to create NR 400.02 (74m), 400.03 (3) (om), and (4) (go) and (ki), 405.02 (28m), 405.07 (9), 

407.02 (8m) and 407.075 relating to major source permitting thresholds for sources of greenhouse gas 

emissions and affecting small business. 

AM-17-10 

Analysis Prepared by the Department of Natural Resources

1. Statute interpreted: Sections 227.11(2)(a), 227.14(1m)(b), 285.11(1) and (16), and 285.60, Stats. The 

State Implementation Plan developed under s. 285.11(6), Stats., is revised. 

2. Statutory authority: Sections 227.11 (2) (a), 227.14 (1m) (b), 285.11 (1) and (16), Stats. 

3. Explanation of agency authority: Section 227.11(2)(a), Stats., gives state agencies general 

rulemaking authority. Section 227.14(1m)(b), Stats., allows the Department to use the format of federal 

regulations in preparing a proposed rule if it determines that all or part of a state environmental regulatory 

program is to be administered according to standards, requirements or methods which are similar to 

standards, requirements or methods specified for all or part of a federal environmental program. Section 

285.11(1), Stats., gives the Department authority to promulgate rules consistent with ch. 285, Stats. 

Section 285.11(16), Stats., requires the Department to promulgate rules that specify the amounts of 

emissions that result in a stationary source being classified as a major source. This section requires the 

rules to be consistent with but no more restrictive than the federal Clean Air Act. 

4. Related statute or rule: None 

5. Plain language analysis: On April 1, 2010, US EPA promulgated the first standard for regulating motor 

vehicle gases contributing to climate change, i.e., greenhouse gases or GHG. Because of the way the 

Clean Air Act (CAA) is structured, once GHG emissions from motor vehicles are subject to regulation, 

stationary sources become regulated for these gases. Without further action by EPA, this standard has the 

unintended affect of subjecting literally tens of thousands of sources across the country to some of the 

most complex air permit and emission control regulations. In order to mitigate this unintended effect, EPA 

promulgated on June 3, 2010 (75 FR 31514), an additional "tailoring" rule that limits the number of 

sources subject to the permit and emission control regulations. 

Under current state statutes and administrative code, Wisconsin sources will become subject to permit 

and emission control requirements on January 2, 2010. However, Wisconsin sources will not benefit from 

the tailoring rule limiting applicability under air permit and emission control regulations until revisions can 

be made to Wisconsin administrative code. This order proposes to revise the administrative code to make 

it consistent with the new federal rule. 

Specifically, this proposal will define the greenhouse gases subject to regulation, establish greenhouse 

gas emission thresholds, that if exceeded, will trigger permitting and emission control requirements, and 

establish global warming potential factors which are used to calculate individual greenhouse gas 

emissions on an equivalent and comparable basis. 

6. Summary of, and comparison with, existing or proposed federal regulation: 

U.S. EPA promulgated rules in 40 CFR parts 51 and 70 as revised on June 3, 2010 (75 FR 31514) to 

relieve overwhelming permitting burdens that would, in the absence of these rule, fall on permitting 

authorities and sources. They accomplished this by tailoring the applicability criteria that determine 

which GHG emission sources become subject to the PSD and Title V programs of the CAA. In particular, 

EPA established with this rulemaking a phase-in approach for PSD and Title V applicability, and 

established the first two steps of the phase-in for the largest emitters of GHG. 
2 

Under these federal rules, the first step, which will begin on January 2, 2011, PSD or Title V 

requirements will apply to sources’ GHG emissions only if the sources are subject to PSD or Title V 

anyway due to their non-GHG pollutants. Therefore, EPA will not require source owners or operators to 

evaluate whether they are subject to PSD or Title V requirements solely on account of their GHG 

emissions. Specifically, for PSD, Step 1 requires that as of January 2, 2011, the applicable requirements 

of PSD, most notably, the best available control technology (BACT) requirement, will apply to projects 

that increase net GHG emissions by at least 75,000 tpy carbon dioxide equivalent emissions, but only if 

the project also significantly increases emissions of at least one non-GHG pollutant. For the Title V 

program, only owners or operators of existing sources with, or new sources obtaining, Title V permits for 

non-GHG pollutants will be required to address GHG during this first step. 

The second step of the federal rules, beginning on July 1, 2011, will phase in additional large sources of 

GHG emissions. New sources as well as existing sources not already subject to Title V that emit, or have 

the potential to emit, at least 100,000 tpy carbon dioxide equivalent emissions will become subject to the 

PSD and Title V requirements. In addition, sources that emit or have the potential to emit at least 100,000 

tpy carbon dioxide equivalent emissions and that undertake a modification that increases net emissions of 

GHG by at least 75,000 tpy carbon dioxide equivalent emissions will also be subject to PSD 

requirements. 

An important provision of these federal rules is that PSD and Title V permitting is only triggered when 

both the appropriate traditional mass-based applicability threshold, i.e., 100 tpy or 250 tpy, and the GHG 

carbon dioxide equivalent emission threshold are exceeded. 

U.S. EPA also makes certain commitments to conduct studies related to potential regulatory burdens 

which could result from lowering the applicability threshold from what is contained in the current rule. 

Except for these federal commitments, the rules proposed here are consistent with the federal rules. 

7. Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan, and Minnesota): The 

states of Illinois and Minnesota are US EPA delegated states so they do not need to amend their state 

rules to implement the provision of the federal tailoring rule. Michigan and Iowa are SIP approved states 

like Wisconsin, so they will need to implement rules similar to what are being proposed here in order to 

modify their permit program and implement the provisions of the federal rule. 

8. Summary of factual data and analytical methodologies used and how any related findings 

support the regulatory approach chosen: The proposed rule is based on the federal rule changes. 

Information on the federal rule changes can be obtained from federal registers published on October 27, 

2009 (74 FR 55292), October 30, 2009 (74 FR 56260), and June 3, 2010 (75 FR 31514). 

9. Analysis and supporting documents used to determine the effect on small business or in 

preparation of an economic impact report: The Department did not conduct an independent analysis of 

the effect on small business, but is relying on the analysis performed by the US EPA. This analysis can be 

found in US EPA’s rule docket for Prevention of Significant Deterioration and Title V Greenhouse Gas 

Tailoring Rule; Proposed Rule [EPA-HQ-OAR-2009-0517; FRL-8966-7], October 27, 2009 (74 FR 55292). 

10. Effect on small business: This proposal will prevent unintended impacts to small businesses 

resulting from promulgation by U.S. EPA of emission standards for GHG, by limiting the number that may 

become subject to the Title V and PSD permitting programs. 

11. Agency contact person: Andrew Stewart, 608-266-6876, andrew.stewart@wisconsin.gov 

12. Place where comments are to be submitted and deadline for submission: 

Written comments may be submitted at the public hearings, by regular mail, fax, or email to: 

Andrew M. Stewart 

Department of Natural Resources 

Bureau of Air Management 
3 

PO Box 7921 

Madison WI 53707 

Fax: (608) 267-0560 

Written comments may also be submitted to the Department using the Wisconsin Administrative Rules 

Internet Web site at http://adminrules.wisconsin.gov. 

Hearing dates and the comment submission deadline are to be determined. 

SECTION 1. NR 400.02 (74m) is created to read: 

NR 400.02 (74m) “Greenhouse gases” or “GHG” means an air pollutant that is the aggregate of 

carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6), hydrofluorocarbons 

(HFCs), and perfluorocarbons (PFCs). 

SECTION 2. NR 400.03(3) (om) and (4) (go) and (ki) are created to read: 

NR 400.03 (3) (om) “SF6” – sulfur hexafluoride 

(4) (go) “GHG” – greenhouse gases 

(ki) “PFC” – perfluorocarbon 

SECTION 3. NR 405.02 (28m) is created to read: 

NR 405.02 (28m) “Subject to regulation under the Act” means, for any air contaminant, that the 

contaminant is subject to either a provision of the Act, or a nationally applicable regulation codified by 

the administrator in title 40, Chapter I, subchapter C of the CFR, that requires actual control of the 

quantity of air emissions of the contaminant, and that the control requirement has taken effect and is 

operative to control, limit, or restrict the quantity of emissions of the contaminant released from the 

regulated activity. 

SECTION 4. NR 405.07 (9) is created to read: 

 NR 405.07 (9) (a) Emissions of greenhouse gases at a stationary source shall only be subject to 

regulation under the Act as follows: 

1. Beginning January 2, 2011, if the stationary source is any of the following: 
4 

a. A new major stationary source for a regulated NSR contaminant other than GHG, which will 

emit or will have the potential to emit 75,000 tpy or more of GHG on a carbon dioxide equivalent basis. 

b. An existing major stationary source for a regulated NSR contaminant other than GHG, which 

will have an emissions increase of a regulated NSR contaminant other than GHG, and an emissions 

increase of 75,000 tpy or more of GHG on a carbon dioxide equivalent basis. 

2. Beginning July 1, 2011, in addition to the provisions in par. (a), if the stationary source is any 

of the following: 

a. A new stationary source that will emit or have the potential to emit 100,000 tpy or more of 

GHG on a carbon dioxide equivalent basis. 

b. An existing stationary source that emits or has the potential to emit 100,000 tpy or more of 

GHG on a carbon dioxide equivalent basis, and the source undertakes a physical change or change in the 

method of operation that will result in an emissions increase of 75,000 tpy or more of GHG on a carbon 

dioxide equivalent basis. 

Note: The Department intends to regulate GHG consistent with the 40 CFR 51.166 (June 3, 

2010). In the event of litigation or congressional action which impacts the federal regulations, the 

Department will commence rulemaking to remain consistent with the resulting federal regulations. 

(b) For purposes of this subsection, emissions of GHG on a carbon dioxide equivalent basis shall 

be determined by multiplying the mass amount of emissions, in tons per year, for each of the constituent 

gases in the pollutant GHG by the associated global warming potential for the gas in Table B, and then 

summing the products obtained. 

Table B 

Global Warming Potentials (GWP) 

Greenhouse Gas 

(a) 

Chemical Abstract 

Service Number1

(b) 

Chemical Formula 

(c) 

GWP 

(d) 

1. Carbon dioxide 124-38-9 CO2 1 

2. Methane 74-82-8 CH4 21 

3. Nitrous oxide 10024-97-2 N2O 310 

4. HFC-23 75-46-7 CHF3 11,700 

5. HFC-32 75-10-5 CH2F2 650 

6. HFC-41 593–53–3 CH3F 150 

7. HFC-125 354-33-6 C2HF5 2,800 
5 

Table B 

Global Warming Potentials (GWP) 

 Greenhouse Gas 

(a) 

Chemical Abstract 

Service Number1

(b) 

Chemical Formula 

(c) 

GWP 

(d) 

8. HFC-134 359–35–3 C2H2F4 1,000 

9. HFC-134a 811-97-2 CH2FCF3 1,300 

10. HFC-143 430–66–0 C2H3F3 300 

11. HFC-143a 420-46-2 C2H3F3 3,800 

12. HFC-152 624–72–6 CH2FCH2F 53 

13. HFC-152a 75-37-6 CH3CHF2 140 

14. HFC-161 353–36–6 CH3CH2F 12 

15. HFC-227ea 431-89-0 C3HF7 2,900 

16. HFC-236cb 677–56–5 CH2FCF2CF3 1,340 

17. HFC-236ea 431-63-0 CHF2CHFCF3 1,370 

18. HFC-236fa 690-39-1 C3H2F6 6,300 

19. HFC-245ca 679–86–7 C3H3F5 560 

20. HFC-245fa 460–73–1 CHF2CH2CF3 1,030 

21. HFC-365mfc 406–58–6 CH3CF2CH2CF3 794 

22. HFC-43-10mee 138495-42-8 CF3CFHCFHCF2CF3 1,300 

23. Sulfur hexafluoride 2551-62-4 SF6 23,900 

24. Trifluoromethyl sulphur 

pentafluoride 

 373-80-8 SF5CF3 17,700 

25. Nitrogen trifluoride 7783–54–2 NF3 17,200 

26. PFC-14 (Perfluoromethane) 75-73-0 CF4 6,500 

27. PFC-116 (Perfluoroethane) 76-16-4 C2F6 9,200 

28. PFC-218 (Perfluoropropane) 76-19-7 C3F8 7,000 

29. Perfluorocyclopropane 931–91–9 C-C3F6 17,340 

30. PFC-3-1-10 (Perfluorobutane) 355-25-9 C4F10 7,000 

31. Perfluorocyclobutane 115-25-3 C-C4F8 8,700 

32. PFC-4-1-12 (Perfluoropentane) 678-26-2 C5F12 7,500 

33. PFC-5-1-14 (Perfluorohexane) 355-42-0 C6F14 7,400 

34. PFC–9–1–18 306–94–5 C10F18 7,500 

35. HCFE–235da2 (Isoflurane) 26675–46–7 CHF2OCHClCF3 350 

36. HFE–43–10pccc (H–Galden 

1040x) 

 E1730133 CHF2OCF2OC2F4OCHF2 1,870 

37. HFE–125 3822–68–2 CHF2OCF3 14,900 

38. HFE–134 1691–17–4 CHF2OCHF2 6,320 

39. HFE–143a 421–14–7 CH3OCF3 756 

40. HFE–227ea 2356–62–9 CF3CHFOCF3 1,540 

41. HFE–236ca12 (HG–10) 78522–47–1 CHF2OCF2OCHF2 2,800 

42. HFE–236ea2 (Desflurane) 57041–67–5 CHF2OCHFCF3 989 

43. HFE–236fa 20193–67–3 CF3CH2OCF3 487 

44. HFE–245cb2 22410–44–2 CH3OCF2CF3 708 

45. HFE–245fa1 84011–15–4 CHF2CH2OCF3 286 

46. HFE–245fa2 1885–48–9 CHF2OCH2CF3 659 

47. HFE–254cb2 425–88–7 CH3OCF2CHF2 359 

48. HFE–263fb2 460–43–5 CF3CH2OCH3 11 

49. HFE–329mcc2 67490–36–2 CF3CF2OCF2CHF2 919 

50. HFE–338mcf2 156053–88–2 CF3CF2OCH2CF3 552 
6 

Table B 

Global Warming Potentials (GWP) 

 Greenhouse Gas 

(a) 

Chemical Abstract 

Service Number1

(b) 

Chemical Formula 

(c) 

GWP 

(d) 

51 HFE–338pcc13 (HG–01) 188690–78–0 CHF2OCF2CF2OCHF2 1,500 

52. HFE–347mcc3 28523–86–6 CH3OCF2CF2CF3 575 

53. HFE–347mcf2 E1730135 CF3CF2OCH2CHF2 374 

54. HFE–347pcf2 406–78–0 CHF2CF2OCH2CF3 580 

55. HFE–356mec3 382–34–3 CH3OCF2CHFCF3 101 

56. HFE–356pcc3 160620–20–2 CH3OCF2CF2CHF2 110 

57. HFE–356pcf2 E1730137 CHF2CH2OCF2CHF2 265 

58. HFE–356pcf3 35042–99–0 CHF2OCH2CF2CHF2 502 

59. HFE–365mcf3 378–16–5 CF3CF2CH2OCH3 11 

60. HFE–374pc2 512–51–6 CH3CH2OCF2CHF2 557 

61. HFE–449sl (HFE–7100) 

Chemical blend 

 163702–07–6 

 163702–08–7 

C4F9OCH3

(CF3)2CFCF2OCH3

297 

62. HFE–569sf2 (HFE–7200) 

Chemical blend 

 163702–05–4 

 163702–06–5 

C4F9OC2H5

(CF3)2CFCF2OC2H5

59 

63. Sevoflurane 28523–86–6 CH2FOCH(CF3)2 345 

64. HFE–356mm1 13171–18–1 (CF3)2CHOCH3 27 

65. HFE–338mmz1 26103–08–2 CHF2OCH(CF3)2 380 

66. (Octafluorotetramethylene) 

hydroxymethyl group 

 NA X-(CF2)4CH(OH)-X 73 

67. HFE–347mmy1 22052–84–2 CH3OCF(CF3)2 343 

68. Bis (trifluoromethyl)-methanol 920–66–1 (CF3)2CHOH 195 

69. 2,2,3,3,3-pentafluoropropanol 422–05–9 CF3CF2CH2OH 42 

70. PFPMIE NA CF3OCF(CF3)CF2OCF2OCF3 10,300 

1

 The Chemical Abstract Service or CAS numbers refer to the unique chemical abstracts service 

registry number assigned to a specific chemical, isomer or mixture of chemicals or isomers and recorded 

in the CAS chemical registry system by the Chemical Abstracts Service, PO Box 3012, Columbus OH 

42310, phone: 1−614−447−3600. 

 Note: The GWPs in Table B are based upon the GWPs codified by the EPA at 40 CFR part 98, 

Subpart A, Table A-1, as of October 22, 2010. 

SECTION 5. NR 407.02 (4) (b) (intro.) is amended to read: 

NR 407.02 (4) (b) (intro.) A stationary source that directly emits, or has the potential to emit, 100 

tpy or more of any air contaminant subject to regulation under the Act other than particulate matter 

emissions. For particulate matter emissions, a stationary source is a major source if it has emits, or has the 

potential to emit, 100 tpy of PM10 emissions. The fugitive emissions of a stationary source may not be 

considered in determining whether it is a major source for the purposes of this definition, unless the 

source belongs to one of the following categories of stationary sources: 
7 

SECTION 6. NR 407.02 (8m) is created to read: 

NR 407.02(8m) “Subject to regulation under the Act” has the meaning given in s. NR 405.02 

(28m). 

SECTION 7. A column heading in Table 3 of NR 407.05 is amended, a new table entry added in 

alphabetical order, and footnotes added to read: 

NR 407.05 (5) Table 3 

Air Contaminant Name 

Sources of 

Regulation (See 

Footnotes Below) 

Chemical 

Abstract Service 

Number7

Inclusion Level 

(lbs/yr unless 

otherwise noted) 

Greenhouse gases 10 * 10,000 tpy on a 

carbon dioxide 

equivalent basis9

9

 Emissions of GHG on a carbon dioxide equivalent basis shall be determined according to s. NR 

405.07 (9) (b). 

10Federal greenhouse gases listed under 40 CFR Part 70. 

SECTION 8. NR 407.075 is created to read: 

NR 407.075 Greenhouse gases. Emissions of greenhouse gases at a stationary source shall only be 

subject to regulation under the Act if, on or after July 1, 2011, the source emits or has the potential to emit 

100,000 tpy or more of GHG on a carbon dioxide equivalent basis. For purposes of this section, emissions 

of GHG on a carbon dioxide equivalent basis shall be determined according to s. NR 405.07 (9) (b). 

SECTION 9. EFFECTIVE DATE. This rule shall take effect on the first day of the month following 

publication in the Wisconsin administrative register as provided in s. 227.22 (2) (intro.), Stats. 
8 

SECTION 10. BOARD ADOPTION. This rule was approved and adopted by the State of Wisconsin 

Natural Resources Board on _______________________. 

Dated at Madison, Wisconsin _________________________________. 

STATE OF WISCONSIN 

DEPARTMENT OF NATURAL RESOURCES 

By__________________________________ 

 Matthew J. Frank, Secretary 

(SEAL)