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 pub lic 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 dead lines in rules generally referred to as the GHG Tailoring Rule to define when New Source Review Prevention of Signific ant Deterioration and Title V operat ing permits are required for ne w and existing industrial sources [ 75 FR 31514, June 3, 2010]

. This action was necessary because without it, the unintended effe ct of EPA’s emission standard for GHG emissions from motor vehicles promulgated on April 1, 2010 would s ubject literally tens of t housands of sources across the country to some of the mo st complex air permit and emission control regulations.

Under current state statutes and administrative code, Wisconsin sources will be subject to permit and emission control requirem ents for GHG on January 2, 2011. However, Wisconsin sources will not benefit from the feder al tailoring rule limiting applicability unde r 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 un der air permit regulations will be so regulated for GHG. Examples incl ude municipal landfills, hospitals, asphalt plants, wastewater tr eatment plants, small wood fired boilers and agricultural digesters. In addi tion, this situation, if not remedied, has the potential to overwhelm DNR permitting staff, divert resources away from significant environm ental issues and delay issuance of construction permits for cr itical projects for expanding businesses.

It is anticipated that there will be a high degree of interest in this rulemaking. However, this proposal limits the applicabil ity of Department permitting consistent with the f ederal permit program and therefore is not ex pected to be controversial. The Board h as not dealt with this issue before.

RECOMMENDATION: That the Board adopt emergency Board Or der 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 fi rst 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, st ationary 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 "ta iloring" 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. Ho wever, 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. Specifi cally, 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 emissi ons 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 th e potential to overwhelm DN R 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 re quired by federal law. This timing provides for the exclusion to be in effect during th e 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 pollutio n 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 th e 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 a nd the finalized motor vehicle rule adds GHG to the list of pollutants that are regulated under the Clean Ai r Act. This in turn subjects stationary sources (i.e., electric utilities, factories, small business, etc.) to th e 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 crite ria pollutants, while the PSD program applied to sources in certain categories at a 100 tons per year leve l and to other sources at a 250 tons per year level. Sources regulated under the PSD program also had thr esholds 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 pollutant s 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 thres holds 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 diox ide. Applying these thresholds to sources of carbon dioxide emissions would bring litera lly 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 percen tage of the total. Regulating these sources under programs designed to control emissions from sourc es such as electric utilities, large manufactures and foundries would be highly ineffective and resu lt in little or no environmental benefit.

In order to prevent this from happening, EPA issu ed on June 3, 2010, a regulation known as the GHG Tailoring Rule. This rule establishes a GHG emissi on applicability threshold for the PSD and Title V programs at 100,000 tons per year and establishes a th reshold for what will be considered a significant increase in GHG emissions at 75,000 tons per year. In addition, this regulati on 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 ma ke Wisconsin consistent w ith federal regulations in order to prevent the unintended a pplicability 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 w ill be subject to legal uncertainty and potentially complex control determinations. In addition, thousan ds 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 for3 both the permittee and the DNR since most of these pe rmittees 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 liste d in the endangerment finding (carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride);

 Define how to calculate a carbon dioxide equivalency (CO 2 e) for the six pollutants;

 Define a major source of GHG emissi ons at 100,000 tons per year CO 2 e;

 Define a significance level for PSD permitting at 75,000 tons per year CO 2 e;

 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 tailori ng 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 th ese smaller sources that are compared to the major source threshold being proposed. Existing inclusion levels in Wisc onsin’s Title V rules for other pollutants are generally set at 10 percent of a signifi cance level applicable to the pollutant of concern. With the exception of nitrous oxides, this order pr oposes to establish the inclusion level for the other greenhouse gases at 10 percent of the PSD majo r source threshold, or 10,000 tons of CO 2 e.
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 cal culated 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, omitti ng 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 CO 2 e rather than at 100 and 250 tons per year. It also increases the significance threshold to determine the level for s ubjecting modifications to the PSD permitting program from 0 (any increase) to 75,000 tons per year of CO 2 e. 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 em issions 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 CO 2 e 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 pollu tant other than GHG) would be subject to Title V requirements for GHG.

 During this time, no sources would be subject to Cl ean 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 th ey 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 subj ect 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 CO 2 e 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 curren tly 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 r esidential wood boilers will become subject to the PSD and Title V permit programs.

The greenhouse gas endangerment fi nding (74 FR 66496), EPA’s memora ndum entitled “Interpretation of Regulations that Determine Pollutants Covered by Fe deral 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 re lated 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 environmen tal 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 Execut ive 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 Arri ving at Fiscal Estimate
This proposal limits the applicability of Department permitt ing consistent with the federal permit program, resulting in fewer permit actions. This translates to an expected co st avoidance for both the Depa rtment and the private sector over what costs will be imposed if the proposal is not a pproved. 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 propos ed rules published in September, 2009. EPA's final rule establishes applicability thresholds mu ch higher than originally proposed, ther efore, the cost a voidance 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 s ources 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 resi dential sources subject to PSD - Based on an assumption that Wisconsin's number of sources is proportional to percentage of the national popul ation, 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 Execut ive Budget and Finance DOA-2048 (R10/2000) 

### Fiscal Estimate

— 2009 Session

Pa g e 2 Assum p tions 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 s ources subject to Title V - Currently the Department i ssues 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 reside ntial sources subject to Title V - Based on an assumption that Wisconsin's number of sources is proportional to percentage of the na tional 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 incl uding 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 Execut ive 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 ru les 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 Im p act on State Funds from: Increased Costs Decreased Costs A. State Costs by Category
State O p erations — Salaries and Frin g es $ 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 thous ands of sources across the country to some of the most complex air permit and emission control regulati ons. 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 tri gger 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 source s 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, t he 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 equi valent 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 diox ide 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 pr oposed 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 Feder al 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 (CO 2 ), methane (CH 4 ), nitrous oxide (N 2 O), sulfur hexafluoride (SF 6 ), 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) “SF 6 ” – 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 Ac t, 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 th at 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 regulat ed 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 re gulated NSR contaminant other than GHG, which

will have an emissions increase of a regulated NS R 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 sour ce 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 c onsistent with the 40 CFR 51.166 (June 3,

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

Department will commence rulemaking to remain c onsistent with the resu lting 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 wa rming 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 Number 1 (b) Chemical Formula

(c) GWP

(d) 1. Carbon dioxide 124-38-9 CO 2 1 2. Methane 74-82-8 CH 4 21 3. Nitrous oxide 10024-97-2 N 2 O 310 4. HFC-23 75-46-7 CHF 3 11,700 5. HFC-32 75-10-5 CH 2 F 2 650 6. HFC-41 593–53–3 CH 3 F 150 7. HFC-125 354-33-6 C 2 HF 5 2,800 8. HFC-134 359–35–3 C 2 H 2 F 4 1,000 9. HFC-134a 811-97-2 CH 2 FCF 3 1,300 10. HFC-143 430–66–0 C 2 H 3 F 3 300 11. HFC-143a 420-46-2 C 2 H 3 F 3 3,800

### 5 Table B Global Warming Potentials (GWP) Greenhouse Gas

(a) Chemical Abstract Service Number 1 (b) Chemical Formula

(c) GWP

(d) 12. HFC-152 624–72–6 CH 2 FCH 2 F 53 13. HFC-152a 75-37-6 CH 3 CHF 2 140 14. HFC-161 353–36–6 CH 3 CH 2 F 12 15. HFC-227ea 431-89-0 C 3 HF 7 2,900 16. HFC-236cb 677–56–5 CH 2 FCF 2 CF 3 1,340 17. HFC-236ea 431-63-0 CHF 2 CHFCF 3 1,370 18. HFC-236fa 690-39-1 C 3 H 2 F 6 6,300 19. HFC-245ca 679–86–7 C 3 H 3 F 5 560 20. HFC-245fa 460–73–1 CHF 2 CH 2 CF 3 1,030 21. HFC-365mfc 406–58–6 CH 3 CF 2 CH 2 CF 3 794 22. HFC-43-10mee 138495-42-8 CF 3 CFHCFHCF 2 CF 3 1,300 23. Sulfur hexafluoride 2551-62-4 SF 6 23,900 24. Trifluoromethyl sulphur pentafluoride 373-80-8 SF 5 CF 3 17,700

25. Nitrogen trifluoride 7783–54–2 NF 3 17,200 26. PFC-14 (Perfluoromethane) 75-73-0 CF 4 6,500 27. PFC-116 (Perfluoroethane) 76-16-4 C 2 F 6 9,200 28. PFC-218 (Perfluoropropane) 76-19-7 C 3 F 8 7,000 29. Perfluorocyclopropane 931–91–9 C-C 3 F 6 17,340 30. PFC-3-1-10 (Perfluorobutane) 355-25-9 C 4 F 10 7,000 31. Perfluorocyclobutane 115-25-3 C-C 4 F 8 8,700 32. PFC-4-1-12 (Perfluoropentane) 678-26-2 C 5 F 12 7,500 33. PFC-5-1-14 (Perfluorohexane) 355-42-0 C 6 F 14 7,400 34. PFC–9–1–18 306–94–5 C 10 F 18 7,500 35. HCFE–235da2 (Isoflurane) 26675–46–7 CHF 2 OCHClCF 3 350 36. HFE–43–10pccc (H–Galden 1040x) E1730133 CHF 2 OCF 2 OC 2 F 4 OCHF 2 1,870

37. HFE–125 3822–68–2 CHF 2 OCF 3 14,900 38. HFE–134 1691–17–4 CHF 2 OCHF 2 6,320 39. HFE–143a 421–14–7 CH 3 OCF 3 756 40. HFE–227ea 2356–62–9 CF 3 CHFOCF 3 1,540 41. HFE–236ca12 (HG–10) 78522–47–1 CHF 2 OCF 2 OCHF 2 2,800 42. HFE–236ea2 (Desflurane) 57041–67–5 CHF 2 OCHFCF 3 989 43. HFE–236fa 20193–67–3 CF 3 CH 2 OCF 3 487 44. HFE–245cb2 22410–44–2 CH 3 OCF 2 CF 3 708 45. HFE–245fa1 84011–15–4 CHF 2 CH 2 OCF 3 286 46. HFE–245fa2 1885–48–9 CHF 2 OCH 2 CF 3 659 47. HFE–254cb2 425–88–7 CH 3 OCF 2 CHF 2 359 48. HFE–263fb2 460–43–5 CF 3 CH 2 OCH 3 11 49. HFE–329mcc2 67490–36–2 CF 3 CF 2 OCF 2 CHF 2 919 50. HFE–338mcf2 156053–88–2 CF 3 CF 2 OCH 2 CF 3 552 51 HFE–338pcc13 (HG–01) 188690–78–0 CHF 2 OCF 2 CF 2 OCHF 2 1,500 52. HFE–347mcc3 28523–86–6 CH 3 OCF 2 CF 2 CF 3 575 53. HFE–347mcf2 E1730135 CF 3 CF 2 OCH 2 CHF 2 374 54. HFE–347pcf2 406–78–0 CHF 2 CF 2 OCH 2 CF 3 580

### 6 Table B Global Warming Potentials (GWP) Greenhouse Gas

(a) Chemical Abstract Service Number 1 (b) Chemical Formula

(c) GWP

(d) 55. HFE–356mec3 382–34–3 CH 3 OCF 2 CHFCF 3 101 56. HFE–356pcc3 160620–20–2 CH 3 OCF 2 CF 2 CHF 2 110 57. HFE–356pcf2 E1730137 CHF 2 CH 2 OCF 2 CHF 2 265 58. HFE–356pcf3 35042–99–0 CHF 2 OCH 2 CF 2 CHF 2 502 59. HFE–365mcf3 378–16–5 CF 3 CF 2 CH 2 OCH 3 11 60. HFE–374pc2 512–51–6 CH 3 CH 2 OCF 2 CHF 2 557 61. HFE–449sl (HFE–7100) Chemical blend 163702–07–6 163702–08–7 C 4 F 9 OCH 3 (CF 3 ) 2 CFCF 2 OCH 3 297

62. HFE–569sf2 (HFE–7200) Chemical blend 163702–05–4 163702–06–5 C 4 F 9 OC 2 H 5 (CF 3 ) 2 CFCF 2 OC 2 H 5 59

63. Sevoflurane 28523–86–6 CH 2 FOCH(CF 3 ) 2 345 64. HFE–356mm1 13171–18–1 (CF 3 ) 2 CHOCH 3 27 65. HFE–338mmz1 26103–08–2 CHF 2 OCH(CF 3 ) 2 380 66. (Octafluorotetramethylene) hydroxymethyl group NA X-(CF 2 ) 4 CH(OH)-X 73

67. HFE–347mmy1 22052–84–2 CH 3 OCF(CF 3 ) 2 343 68. Bis (trifluoromethyl)-methanol 920–66–1 (CF 3 ) 2 CHOH 195 69. 2,2,3,3,3-pentafluoropropanol 422–05–9 CF 3 CF 2 CH 2 OH 42 70. PFPMIE NA CF 3 OCF(CF 3 )CF 2 OCF 2 OCF 3 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 Chem ical 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 PM 10 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 Number 7 Inclusion Level (lbs/yr unless otherwise noted ) Greenhouse gases 10 * 10,000 tpy on a carbon dioxide equivalent basis 9

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

405.07 (9) (b).

10 Federal 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 th e Clean Air Act, this action will unintentionally

### 8 subject stationary sources across the country to comp lex 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 fe deral 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, hosp itals, 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 c ontrol 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 existi ng 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 pr oposed 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 appr oved and adopted by the State of Wisconsin

Natural Resour ces 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 cl assified 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 thous ands of sources across the country to some of the most complex air permit and emission control regulati ons. 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 tri gger 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 burde ns 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 ph ase-in for the largest emitters of GHG.

### 2 Under these federal rules, the first step, whic h 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 t echnology (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 th at emit or have the potential to emit at least 100,000 tpy carbon dioxide equivalent emissions and that unde rtake 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 c onduct studies related to potential regulatory burdens which could result from lowering the applicability thres hold 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 Depar tment 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 (CO 2 ), methane (CH 4 ), nitrous oxide (N 2 O), sulfur hexafluoride (SF 6 ), 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) “SF 6 ” – 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 Ac t, 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 th at 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 regulat ed 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 re gulated NSR contaminant other than GHG, which

will have an emissions increase of a regulated NS R 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 sour ce 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 c onsistent with the 40 CFR 51.166 (June 3,

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

Department will commence rulemaking to remain c onsistent with the resu lting 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 wa rming 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 Number 1 (b) Chemical Formula

(c) GWP

(d) 1. Carbon dioxide 124-38-9 CO 2 1 2. Methane 74-82-8 CH 4 21 3. Nitrous oxide 10024-97-2 N 2 O 310 4. HFC-23 75-46-7 CHF 3 11,700 5. HFC-32 75-10-5 CH 2 F 2 650 6. HFC-41 593–53–3 CH 3 F 150 7. HFC-125 354-33-6 C 2 HF 5 2,800

### 5 Table B Global Warming Potentials (GWP) Greenhouse Gas

(a) Chemical Abstract Service Number 1 (b) Chemical Formula

(c) GWP

(d) 8. HFC-134 359–35–3 C 2 H 2 F 4 1,000 9. HFC-134a 811-97-2 CH 2 FCF 3 1,300 10. HFC-143 430–66–0 C 2 H 3 F 3 300 11. HFC-143a 420-46-2 C 2 H 3 F 3 3,800 12. HFC-152 624–72–6 CH 2 FCH 2 F 53 13. HFC-152a 75-37-6 CH 3 CHF 2 140 14. HFC-161 353–36–6 CH 3 CH 2 F 12 15. HFC-227ea 431-89-0 C 3 HF 7 2,900 16. HFC-236cb 677–56–5 CH 2 FCF 2 CF 3 1,340 17. HFC-236ea 431-63-0 CHF 2 CHFCF 3 1,370 18. HFC-236fa 690-39-1 C 3 H 2 F 6 6,300 19. HFC-245ca 679–86–7 C 3 H 3 F 5 560 20. HFC-245fa 460–73–1 CHF 2 CH 2 CF 3 1,030 21. HFC-365mfc 406–58–6 CH 3 CF 2 CH 2 CF 3 794 22. HFC-43-10mee 138495-42-8 CF 3 CFHCFHCF 2 CF 3 1,300 23. Sulfur hexafluoride 2551-62-4 SF 6 23,900 24. Trifluoromethyl sulphur pentafluoride 373-80-8 SF 5 CF 3 17,700

25. Nitrogen trifluoride 7783–54–2 NF 3 17,200 26. PFC-14 (Perfluoromethane) 75-73-0 CF 4 6,500 27. PFC-116 (Perfluoroethane) 76-16-4 C 2 F 6 9,200 28. PFC-218 (Perfluoropropane) 76-19-7 C 3 F 8 7,000 29. Perfluorocyclopropane 931–91–9 C-C 3 F 6 17,340 30. PFC-3-1-10 (Perfluorobutane) 355-25-9 C 4 F 10 7,000 31. Perfluorocyclobutane 115-25-3 C-C 4 F 8 8,700 32. PFC-4-1-12 (Perfluoropentane) 678-26-2 C 5 F 12 7,500 33. PFC-5-1-14 (Perfluorohexane) 355-42-0 C 6 F 14 7,400 34. PFC–9–1–18 306–94–5 C 10 F 18 7,500 35. HCFE–235da2 (Isoflurane) 26675–46–7 CHF 2 OCHClCF 3 350 36. HFE–43–10pccc (H–Galden 1040x) E1730133 CHF 2 OCF 2 OC 2 F 4 OCHF 2 1,870

37. HFE–125 3822–68–2 CHF 2 OCF 3 14,900 38. HFE–134 1691–17–4 CHF 2 OCHF 2 6,320 39. HFE–143a 421–14–7 CH 3 OCF 3 756 40. HFE–227ea 2356–62–9 CF 3 CHFOCF 3 1,540 41. HFE–236ca12 (HG–10) 78522–47–1 CHF 2 OCF 2 OCHF 2 2,800 42. HFE–236ea2 (Desflurane) 57041–67–5 CHF 2 OCHFCF 3 989 43. HFE–236fa 20193–67–3 CF 3 CH 2 OCF 3 487 44. HFE–245cb2 22410–44–2 CH 3 OCF 2 CF 3 708 45. HFE–245fa1 84011–15–4 CHF 2 CH 2 OCF 3 286 46. HFE–245fa2 1885–48–9 CHF 2 OCH 2 CF 3 659 47. HFE–254cb2 425–88–7 CH 3 OCF 2 CHF 2 359 48. HFE–263fb2 460–43–5 CF 3 CH 2 OCH 3 11 49. HFE–329mcc2 67490–36–2 CF 3 CF 2 OCF 2 CHF 2 919 50. HFE–338mcf2 156053–88–2 CF 3 CF 2 OCH 2 CF 3 552

### 6 Table B Global Warming Potentials (GWP) Greenhouse Gas

(a) Chemical Abstract Service Number 1 (b) Chemical Formula

(c) GWP

(d) 51 HFE–338pcc13 (HG–01) 188690–78–0 CHF 2 OCF 2 CF 2 OCHF 2 1,500 52. HFE–347mcc3 28523–86–6 CH 3 OCF 2 CF 2 CF 3 575 53. HFE–347mcf2 E1730135 CF 3 CF 2 OCH 2 CHF 2 374 54. HFE–347pcf2 406–78–0 CHF 2 CF 2 OCH 2 CF 3 580 55. HFE–356mec3 382–34–3 CH 3 OCF 2 CHFCF 3 101 56. HFE–356pcc3 160620–20–2 CH 3 OCF 2 CF 2 CHF 2 110 57. HFE–356pcf2 E1730137 CHF 2 CH 2 OCF 2 CHF 2 265 58. HFE–356pcf3 35042–99–0 CHF 2 OCH 2 CF 2 CHF 2 502 59. HFE–365mcf3 378–16–5 CF 3 CF 2 CH 2 OCH 3 11 60. HFE–374pc2 512–51–6 CH 3 CH 2 OCF 2 CHF 2 557 61. HFE–449sl (HFE–7100) Chemical blend 163702–07–6 163702–08–7 C 4 F 9 OCH 3 (CF 3 ) 2 CFCF 2 OCH 3 297

62. HFE–569sf2 (HFE–7200) Chemical blend 163702–05–4 163702–06–5 C 4 F 9 OC 2 H 5 (CF 3 ) 2 CFCF 2 OC 2 H 5 59

63. Sevoflurane 28523–86–6 CH 2 FOCH(CF 3 ) 2 345 64. HFE–356mm1 13171–18–1 (CF 3 ) 2 CHOCH 3 27 65. HFE–338mmz1 26103–08–2 CHF 2 OCH(CF 3 ) 2 380 66. (Octafluorotetramethylene) hydroxymethyl group NA X-(CF 2 ) 4 CH(OH)-X 73

67. HFE–347mmy1 22052–84–2 CH 3 OCF(CF 3 ) 2 343 68. Bis (trifluoromethyl)-methanol 920–66–1 (CF 3 ) 2 CHOH 195 69. 2,2,3,3,3-pentafluoropropanol 422–05–9 CF 3 CF 2 CH 2 OH 42 70. PFPMIE NA CF 3 OCF(CF 3 )CF 2 OCF 2 OCF 3 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 Chem ical 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 PM 10 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 Number 7 Inclusion Level (lbs/yr unless otherwise noted ) Greenhouse gases 10 * 10,000 tpy on a carbon dioxide equivalent basis 9

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

405.07 (9) (b).

10 Federal 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 appr oved and adopted by the State of Wisconsin

Natural Resour ces Board on _______________________.

Dated at Madison, Wisconsin _________________________________.

STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES

By__________________________________ Matthew J. Frank, Secretary

(SEAL)