State of Wisconsin

DEPARTMENT OF NATURAL RESOURCES

101 S. Webster Street

Box 7921

Madison WI 63707-7921

May 4, 201 J

Ms. Susan Hedman

USEPA-Region V

77 WestJackson Boulevard

Chicago IL 60604

Scott Walker, Governor

Cathy Stepp, Secretary

Telephone 608·266.2621 ~~d.kil::::~'-""-~"-1 WISCONSIN

FAX 608·267-3679 DEPT. OF NATURAL RESOURCES

TTY Access via relay - 711

Subject: Wisconsin SIP Revision Regarding Greenhouse Gasses

Dear Ms. Hedman:

On April 1,20 I0, US EPA promulgated the first standard for regulating motor vehicle gases contributing to

climate change, i.e., greenhouse gases or GHG. Because ofthe 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 had the unintended affect ofsubjecting literally tens of

thousands ofsources across the country to some ofthe most complex air permit and emission control regulations.

In order to mitigate this unintended effect, EPA promulgated on June 3, 20 I0 (75 FR 31514), an additional

"tailoring" rule that limits the number ofsources subject to the permit and emission control regulations.

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

emission control requirements on January 2, 20 II. However, Wisconsin sources could not benefit from the

tailoring rule limiting applicability under air permit and emission control regulations until revisions were made to

Wisconsin's administrative code. These changes were made in rule AM·17-1O. approved by the DNR Board in its

April 20 II meeting.

Specifically, AM-17-1 0 defines the greenhouse gases subject to regulation, establishes greenhouse gas emission

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

warming potential factors which are used to calculate individual greenhouse gas emissions on an equivalent and

comparable basis.

With this letter, the information submitted as a SIP revision to EPA in rule AM-17-10 permanently revises the

Wisconsin administrative code to make it consistent with the federal tailoring rule. AM-17- J0 modifies portions

of chapters NR 400, and 405, Wis. Adm. Code.

Wisconsin requests EPA process this SIP submittal as soon as possible so that permitted sources benefit from the

relief in the EPA tailoring rule.

If you should have any questions regarding this submittal, please call Andrew Stewart ofmy staff at 608 266-

6876 or email him at andrew.stewart@wisconsin.gov

Sincerely,

/'-....1-l:"""""'"~Yt\.I)~ Jo H. Melby, Jr. /'

Di ctor, Bureau erMana

d nr.wi.gov

wisconsin.gov Naturally WISCONSIN
CC: Andrew Stewart - AMi?

Ralph Patterson - AMi?

Attachments:

• SIP Checklist

• SIP Certification Form

• Public Hearing Notice

• Class I Public Hearing notice

• Rule-AM-I?-IO

• Background Memo

• DNR Green Sheet showing DNR Board's adoption of AM_I?_10

Page 2
EPA Region V 

Wisconsin SIP Submittal 

Completeness Review

Submittal Letter 

1. Signed by Governor’s Designee (John Melby, Jr.)? Yes ___ No ___ 

2. Date of Submittal ______________________________________ 

3. WDNR Person in charge of SIP submittal. 

Name __Ralph Patterson__ Telephone __608-267-7546__ 

 FAX Number ___608-267-0560______ 

E-MAIL Address______________________________ 

4. WDNR Technical Person in charge of answering questions on SIP Submittal 

Name __Andrew Stewart___ Telephone __608-266-6876__ 

 FAX Number ____608-267-0560____ 

E-MAIL Address___andrew.stewart@wisconsin.gov 

Incorporation Into Wisconsin Administrative Code

5. Is evidence that the State incorporated the revision into the Wisconsin Administrative Code supplied in this 

SIP package? 

 Yes _x_ The rule revision amends parts of NR 400, 405, and 407, Wis. Adm. Code. 

 No__ if No explain. 

6. The effective date of the regulation is or was __September 1, 2011___ 

7. Are test methods/rules incorporated by reference correctly? (Has approval been obtained from the state 

Attorney General 

 Yes_______ 

 No_______ 

 Not applicable __X_____ 

 For No and Not applicable explain answer. 

8. Has WDNR provided evidence that it has necessary legal authority under State law to adopt and implement 

the revision? 

 Yes __x _____ Please refer to AM-17-10_12A.pdf 

 No _______ 

 Additional Explanation (if necessary). 

9. Did the State include a copy of the actual regulation or document for USEPA review? 

 Yes _X___ 

 No_____ 

 Additional Explanation (if necessary). 
2

10. Did the State provide evidence that it followed all of the requirements of its Administrative Procedures Act 

(ch. 227, Wis. Stats., Administrative Procedure and Review) in conducting and completing 

adoption/issuance of the revision? 

 Yes__x __ The public hearing notice and Class I publication are included.

 No______ 

 Additional Explanation (if necessary) 

11. Did the State include evidence that Public Notice was given of the revision, including date of publication? 

 Yes__x__ 

 No ____ 

 Additional Explanation (if necessary) 

12. Did the State provide a copy of the certification that public hearings were held in accordance with the 

information provided in the public notice (copy of notarized Class I paper proof). 

 Yes_x__ 

 No___ 

 Additional Explanation (if necessary). 

13. Does the submittal contain a compilation of public comments and the State’s response? 

 Yes__X__ 

 No____ 

 Additional Explanation (if necessary). 

Technical Issues 

14. Name the all the regulated pollutants affected by the revision? ___greenhouse gases________ 

15. Does the submittal identify the designation, status of the attainment plan and attainment date for the area(s) 

 Yes____ 

 No__X___ 

 Additional Explanation (if necessary) Not applicable 

16. Does the submittal identify the location and types of affected sources? 

 Yes_____ 

 No__X___ 

 Additional Explanation (if necessary) Not applicable 
3

17. Does the submittal quantify the changes in SIP-allowable emissions and estimate or quantify the changes in 

actual emissions from affected sources? 

 Yes_X__ 

 No____ 

 Additional explanation (if necessary) 

18. Has the State demonstrated that the NAAQS/PSD Increment/RFP demonstration/visibility will be protected 

if the revision is approved and implemented? 

 Yes____ 

 No__X__ 

 Additional explanation (if necessary) Not applicable 

19. Has the State provided modeling information to support the revision. 

 Yes___ 

 No____ 

 Unnecessary__X__ 

20. Has the State provided evidence that emission limitations are based on continuous emission reduction 

technology? 

 Yes____ 

 No__X__ 

 Additional explanation (if necessary) Not applicable 

21. Has the State provided evidence that the revision contains emission limitations, work practice standards 

and record keeping/reporting requirements where necessary, to ensure emission levels? 

 Yes___ 

 No__X__ 

 Additional explanation (if necessary) Not applicable 

22. Does the submittal contain enforcement/compliance strategies including how compliance will be 

determined in practice, and at what frequency? 

 Yes___ 

 No_X__ 

 Additional explanation (if necessary) Not applicable 
4

STATE APPROVABILITY CHECKLISTENFORCEABILITY 

USEPA USE ONLY 

SIP Package Number ___________ 

Date Received by USEPA ________________ 

Date Due_____________________________ 

State: WISCONSIN 
5

WDNR Information 

Subject Matter: Revisions to Wisconsin’s prevention of significant deterioration new 

source review SIP through the amending/creation of certain sections of NR 400 and 405, 

Wis. Adm. Code.

Applicability 

USEPA Question USEPA Requirement State Response 

What sources are being regulated? Clear discussion Specifically, this rule defines the 

greenhouse gases subject to 

regulation, establishes 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 

for major sources and major 

modifications at major sources. 

What are criteria for exemption? Clear discussion Not applicable 

Is calculation procedure for 

exemption clearly specified? 

Supply example calculation or clear explanation 

of how to determine exemption (line by line, 

etc.) 

Not applicable 

Is emission inventory listed in the 

background document of the 

attainment demonstration? 

Inventory including allowable and actual 

emissions in source category should be 

included, for enforcement purposes and 

independent of any Clean Air Act requirements, 

in the attainment demonstration if such data is 

necessary for determining baselines in 

regulations. 

Not applicable 

Is the averaging time(s) used in 

the rule different from that of the 

ambient standard? 

The averaging time in the rule must be 

consistent with protecting the ambient standard 

in question. Normally, it should be equal to or 

shorter than the time associated with the 

standard. Longer term averaging is available 

only in limited instances provided that the 

ambient standard is not compromised. 

Not applicable 

What are the units of compliance 

(lbs VOC per gallon of solids 

applied less water, grains per 

standard cubic foot?) 

Clearly stated in the rule. Not applicable 

Is bubbling or averaging of any 

type allowed? If yes, state 

criteria. Could a USEPA 

inspector independently determine 

if the criteria were met?? Does 

Explicit description of how averaging, bubbling, 

or equivalency is to be determined. VOC 

equivalency must be on a “solids applied” basis. 

Any method must be independently 

reproducible. Provision must be explicit as to 

Not applicable 
6

USEPA have to approve each 

case? 

whether USEPA case-by-case approval is 

required. If provision intended to be “generic” 

then USEPA bubble policy must be met. 

If there is a redesignation, will 

this change the emission 

limitations? If yes, which ones 

and how? 

Regulation may not automatically allow for self 

nullification upon redesignation of area to 

attainment. New maintenance demonstration 

required to order to drop regulation. 

Not applicable 

Compliance Dates 

USEPA Question USEPA Requirement State Response 

What is the compliance date? The compliance date must not be later 

than the approved or about to be 

approved date of attainment unless 

emission reductions are not necessary 

for attainment. In some cases, it will 

be necessary for the regulation to 

specify dates in compliance schedules 

that are required to be submitted by 

source to state. 

September 1, 2011 

What is the attainment date? Clearly defined. Not applicable 

Specificity of conduct 

USEPA Question USEPA Requirement State Response 

What test method is required? Test method must be explicitly stated. Not applicable 

What is the averaging time in the 

compliance test method? 

Averaging time and application of 

limit must be explicit. 

Not applicable 

Is a compliance calculation or 

evaluation required? (i.e., daily 

weighted average for VOC). 

Clearly defined. Not applicable 

If a compliance calculation is 

necessary, list the formula, period of 

compliance, and/or evaluation 

method. 

Formula must be explicit. Not applicable 

Incorporation by reference

USEPA Question USEPA Requirement State Response 

What is the state authority for 

rulemaking. 

Clearly stated. 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 
7

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. 

Are methods/rules incorporated by 

reference in the right manner? 

Clearly stated. Not applicable

Record keeping

USEPA Question USEPA Requirement State Response 

What records are required to 

determine compliance? 

Clearly stated. Not applicable 

In what form or units (lbs/gal, gr/dscf, 

etc.) must the records be kept? On 

what time basis (instantaneously, 

hourly daily)? 

Records to be kept must be consistent 

with units of compliance in the 

performance requirements, including 

the applicable time period . 

Not applicable 

Does the rule affirmatively require 

the records be kept? 

There must be clearly defined and 

distinguishable from what constitutes 

a violation. 

Not applicable 

Exemptions

USEPA Question USEPA Requirement State Response 

List any exemptions allowed. Must be clearly defined and 

distinguishable from what constitutes 

a violation. 

None allowed 

Is the criteria for application clear? Clearly stated. Not applicable 

Malfunction Provisions

USEPA Question USEPA Requirement State Response 

Are there any malfunction provisions 

in the rule? 

Rule must specify what exceedances 

may be excused, how the standard is 

to be applied, and who makes the 

determination. 

Not applicable 
capital Newspapers Proof of Publication Affidavit

Ad #: 1693132 Price: $520.08 Ad ID: AMLL-792

Retain this portion for your records.

Please do not remitpayment until you receive your advertising invoice.

Mail to:

l ,

!

.._..•_-_.._ _._----- _--

WI DEPT OF NATURAL RESOURCES

Keri Behm

Watershed Bureau

PO BOX 7921

MADISON, WI 53707-7921

.. . - _•..•....._ -.._- , ,

RECEIVED

DEC 20 2010

AIR MANAGEMENT

STATE OF WISCONSIN }

Dane County

PWSJ

55.

Corisa Urban

being dUly sworn, doth depose and say that

he (she) is an authorized representative of

capital Newspapers, publishers of

Wisconsin State Journal

a newspaper, at Madison, the seat of government of said State,

and that an advertisement of which the annexed is a true

copy, taken from said paper, was published therein on

December 15th, 2010

(Signed)

(Title) Principal Clerk

Subscribed and sworn to before me on

lJ.--, 1S--:I {)

~q'~~h1.~_ Otaryu he, Dane

My Commission expires May 24th, 2013
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ENT
BEFORE THE 

DEPARTMENT OF NATURAL RESOURCES 

NOTICE OF PUBLIC HEARING

Natural Resources Board Orders AM-17-10 and AM-48-10(E) 

NOTICE IS HEREBY GIVEN THAT pursuant to ss. 227.16 and 227.17, Stats, the Department of Natural 

Resources, hereinafter the Department, will hold a public hearing on proposed revisions to chs. NR 400, 

405, and 407, Wis. Adm. Code, in permanent rule Order AM-17-10, relating to major source permit 

thresholds for sources of greenhouse gas emissions on the date and at the time and location listed below. 

The proposed revisions relate to issues for State Implementation Plan approvability, and the State 

Implementation Plan developed under s. 285.11(6), Stats., will be revised. 

NOTICE IS HEREBY FURTHER GIVEN THAT pursuant to s. 227.24 (4), Stats., the Department will, on 

the same date and at the same time and location, hold a public hearing on identical revisions in 

emergency rule Order AM-48-10(E), adopted by the Natural Resources Board on December 8, 2010 and 

which was published and became effective on December 15, 2010. 

Hearing Information

Date and Time Location 

Friday, January 21, 2011 at 10:00 AM Natural Resources State Office Building 

 Room G09 

 101 S Webster Street 

 Madison, WI 

Reasonable accommodations, including the provision of informational material in an alternative format, 

will be provided for qualified individuals with disabilities upon request. Contact Robert Eckdale in writing 

at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 

53702; by E-mail to Robert.Eckdale@wisconsin.gov ; or by calling (608) 266-2856. A request must 

include specific information and be received at least 10 days before the date of the scheduled hearing.

Availability of the Proposed Rules and Fiscal Estimate 

The emergency order, proposed rule and supporting documents, including the fiscal estimate, may be 

viewed and downloaded from the Administrative Rules System Web site which can be accessed through 

the link provided on the Proposed Air Pollution Control Rules Calendar at 

http://www.dnr.state.wi.us/air/rules/calendar.htm . If you do not have Internet access, a printed copy of the 

proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by 

contacting Robert Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. 

Webster St, Madison, WI, 53702, or by calling 608.266.2856. 

Submitting Comments 

Comments must be received on or before Friday, January 28, 2011. Written comments may be submitted 

by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral 

statements presented at the public hearing. Written comments and any questions on the proposed rules 

should be submitted to: 

Andrew Stewart 

Department of Natural Resources 

Bureau of Air Management (AM/7) 

101 S Webster St, Madison, WI 53703 

Phone: 608 266-6876 

Fax: 608.267.0560 

E-mail: Andrew.Stewart@wisconsin.gov

Internet: Use the Administrative Rules System Web site accessible through the link provided on the 

Proposed Air Pollution Control Rules Calendar at http://dnr.wi.gov/air/rules/calendar.htm
Analysis Prepared by the Department of Natural Resources

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. 

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

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 notice, hearing, and publication requirements under ch. 227, Stats., if necessary 

for the preservation of 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. 

Related statute or rule: None 

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. 

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. 

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. 

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. 

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). 

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). 

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. The Small Business Regulatory Coordinator may be 

contacted at SmallBusiness@dnr.state.wi.us , or by calling (608) 266-1959. 

Environmental Analysis 

The Department has made a preliminary determination that adoption of the proposed rules would not 

involve significant adverse environmental effects and would not need an environmental analysis under ch. 

NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be 

prepared before proceeding. This analysis would summarize the Department’s consideration of the 

impacts of the proposal and any reasonable alternatives. 

Fiscal Estimate Summary

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 below. (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, resulting in 

an estimated annual cost avoidance or $13,947,450 for the private sector and $7,647,750 for the 

Department. 

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, resulting in an estimated annual cost 

avoidance of $12,563,928 for the private sector and $3,709,584 for the Department. 

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

of the nation’s Title V permits. Therefore 3% of the national estimate of 195,895 permits avoided is used 

in this Fiscal Estimate resulting in an estimated one-time cost avoidance of $272,398,950 for the private 

sector and $115,706,376 for the Department. 

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, resulting in an estimated one-time cost 

avoidance of $593,982,180 for the private sector and $235,639,140 for the Department. 

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. 

Agency contact person:

Andrew Stewart 

Department of Natural Resources 

Bureau of Air Management (AM/7) 

101 S Webster St, Madison, WI 53703 

Phone: 608 266-6876 

Fax: 608.267.0560 

E-mail: Andrew.Stewart@wisconsin.gov

Dated at Madison, Wisconsin: December 08, 2010 

 STATE OF WISCONSIN 

 DEPARTMENT OF NATURAL RESOURCES 

 By ___/S/ Matthew J.Frank______ 

 Matthew J. Frank, Secretary 
WiSCONSIN DEPARTMENT OF NATURAL RESOURCES

BUREAU OF AIR MANAGEMENT

STATE IMPLEMENTAnON PLAN REVISION

CERTIFICATION

Pursuant to the requirements of40 CFR s. 51.1 02(t), I hereby certify that the Wisconsin

Department ofNatural Resources held the hearing described below; that the hearing was

held in accordance with the public notice (copy attached), as required by 40 CFR s.

51.1 02(d); and that I was the presiding officer at the hearing.

Subject:

Revisions to SIP relating to major source permitting thresholds for sources of greenhouse

gas emissions.

Hearing held:

Friday, January 21, 201 I in Madison, Wisconsin.

Written comments were received until January 28, 20 I I.

Q

Margaret I. Hoefer

BUREAU OF LEGAL SERVICES

Subscribed and sworn to before me

Thisi<H1._ day of fJ1~ ,201 I

-UU(xTj s--(~0 . h"

Notary Public, State of Isconsm

My commission is permanent.
1 

ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD 

AMENDING AND CREATING RULES 

The Wisconsin Natural Resources Board adopts 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 (kg), 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 would have become subject to 

permit and emission control requirements on January 2, 2011. 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. The Department therefore promulgated 

emergency rule AM-48-10(E) to receive the relief intended under the federal tailoring rule. This order 

proposes to permanently 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 
3 

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 (kg) are created to read: 

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

(4) (go) “GHG” – greenhouse gases 

(kg) “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 subd. 1., 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. 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__________________________________ 

 Cathy Stepp, Secretary 

(SEAL) 
State of Wisconsin CORRESPONDENCE/MEMORANDUM

DATE: March 18, 2011 FILE REF: 4530 

TO: Natural Resources Board Members 

FROM: Cathy Stepp, Secretary 

SUBJECT: Background memo on request for adoption of 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 May 13, 2010, the U. S. Environmental Protection Agency, (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. This action was necessary because without it, the EPA’s emission 

standard for GHG for motor vehicles promulgated on April 1, 2010 would have had the unintended effect 

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

permit and emission control regulations. 

However, in order for Wisconsin sources to benefit from EPA's policy to limit applicability of air permit 

and emission control regulations for GHG, revisions to the Wisconsin administrative code, consistent 

with the federal Tailoring Rule, were necessary by January 2, 2011 when the EPA emission standard for 

GHG for motor vehicles became effective. This was accomplished on a temporary basis by the Board's 

adoption of emergency rules in Board Order AM-48-10(E). The rules proposed for adoption here are 

identical to those emergency rules currently in effect, and are necessary to make them permanent. 

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. 

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. 
 2

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 

criteria 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. 

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 

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 carbon dioxide equivalency for the six pollutants; 

• Define a major source of GHG emissions at 100,000 tons per year on a carbon dioxide equivalent 

basis; 

• Define a significance level for PSD permitting at 75,000 tons per year on a carbon dioxide equivalent 

basis; 

• Establish a two step phased-in implementation schedule; 
 3

• 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 in 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 of the proposed order) 

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 on a carbon dioxide equivalent basis rather than at 100 and 250 tons per 

year. It also increases the significance threshold for subjecting modifications to the PSD permitting 

program from 0 (any increase) to 75,000 tons of GHG per year on a carbon dioxide equivalent basis. 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 carbon dioxide 

equivalent 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 
 4

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 on a carbon dioxide equivalent basis will be subject to Title V permitting 

requirements. 

Hearing Synopsis

The Department held one hearing on the proposed rules on January 21, 2011 in Madison. The hearing was 

conducted by Margaret Hoefer of DNR Legal Services. Andrew Stewart, Permit and Stationary Source 

Section Chief provided an overview of the proposed rule. Four people attended the hearing. Two 

registering as interests may appear and two not indicting a position. No oral or written comments were 

submitted at the hearing. 

Written comment was received from Alliant Energy requesting that language in a proposed footnote be 

more definitive and be established as enforceable rule requirements. Specifically, Alliant Energy strongly 

believes that specific provisions be included in the rule that would make this proposal no longer effective 

in the event that the underlying federal regulation would be vacated or repealed. In addition, Alliant 

Energy recommends this proposal impose a requirement on the Department to revise its rules within six 

months of any action by EPA to repeal its rules, or any change to the federal regulation resulting from 

litigation or congressional action, in order to maintain consistency with the federal regulations. 

No change is being made in response to this comment. The Department is aware of the significant 

concern the public has with the continued uncertainty of greenhouse gas regulation under the Clean Air 

Act and acknowledges this concern by including the following footnote in the rule: 

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. 

The Department does not believe it is appropriate to include provisions in the rule that automatically 

abdicates its authority in response to action at the federal level or imposes required actions on itself. The 

Department is committed, to act quickly to address this type of situation, likely by using emergency rule 

procedures to ensure that Wisconsin’s air permitting program is consistent with federal requirements. 

Minor changes and corrections have been made to the proposal in response to Legislative Council Rules 

Clearinghouse comments concerning Form, Style and Placement in Administrative Code and Adequacy 

of References to Related statutes, Rules and Forms. Two comments regarding Clarity, Grammar, 

Punctuation and Use of Plain Language made by the Clearinghouse were not accepted for the following 

reasons. 

Comment asking whether it would be more appropriate to change definition of GHG from “greenhouse 

gases” to “greenhouse gas”. The plural form of gases is more appropriate as the term GHG or greenhouse 

gases refers to 70 individual gases in this proposal. 

Comment asking whether it is possible to define the term “physical change” in the proposal. No definition 

is being proposed as the terms literal meaning is applied in practice. A list of physical changes that are 

excluded from being used in this proposal currently exists in s. NR 405.02(21)(b). 
 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. 

Final Regulatory Flexibility Analysis.

The proposed rule does not have the potential to have a significant impact on a substantial number of 

small sources. The purpose of the rule is to limit applicability of New Source Review construction and 

Title V operation permits and control requirements to major sources of greenhouse gas pollution. 
Form 1100-001 NATURAL RESOURCES BOARD AGENDA ITEM Item No. ____________

(R 2/11) 

SUBJECT:

Request adoption of Board Order AM-17-10, proposed rules affecting chapters NR 400, 405 and 407 pertaining to major 

source thresholds for sources of greenhouse gas emissions. 

FOR: APRIL 2011 BOARD MEETING

TO BE PRESENTED BY / TITLE: Andrew Stewart, Chief, Permits & Stationary Source Modeling, Bureau of Air 

Management 

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. This action was necessary because without it, the EPA’s emission standard for GHG for motor vehicles 

promulgated on April 1, 2010 would have had the unintended effect of subjecting literally tens of thousands of sources across the 

country to some of the most complex air permit and emission control regulations. 

However, in order for Wisconsin sources to benefit from EPA's policy to limit applicability of air permit and emission control regulations 

for GHG, revisions to the Wisconsin administrative code, consistent with the federal Tailoring Rule, were necessary by January 2, 2011 

when the EPA emission standard for GHG for motor vehicles became effective. This was accomplished on a temporary basis by the 

Board's adoption of emergency rules in Board Order AM-48-10(e). The rules proposed for adoption here are identical to those 

emergency rules currently in effect, and are necessary to make them permanent. 

The Natural Resources Board authorized holding public hearings at the December 2010 meeting. One hearing was held on January 21, 

2011 in Madison. No comment was made at the hearing which was attended by four people. Written comment was received from Alliant 

Energy requesting that language in a proposed footnote be more definitive and be established as code requirements. No change is

being made in response to that comment. Minor changes and corrections have been made in response to Legislative Council Rules 

Clearinghouse comments. 

While the Department does not anticipate any controversy with this proposal, it is aware of the significant concern the public has with 

the continued uncertainty of greenhouse gas regulation under the Clean Air Act. 

RECOMMENDATION: That the Board adopt 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: 

_______________________________________________________________ ________________________ 

Bureau Director, John H. Melby, Jr Date 

_______________________________________________________________ ________________________ 

Administrator, Patrick Stevens Date 

_______________________________________________________________ ________________________ 

Secretary, Cathy Stepp Date 

cc: Board Liaison - AD/8 Linda Haddix - LS/8 

 Marney Hoefer - LS/8 R. Eckdale - AM/7 
STAFF REVIEW - DNR BOARD AGENDA ITEM 

 REMINDER 

 Have the following questions been answered under the summary section of this form? 

 - -Why is the rule needed? 

 - -What are the significant changes? 

 - -What are the key issues/controversies? 

 - -What was the last action of the Board? 

LIST OF ATTACHED REFERENCE MATERIAL REQUIRED FOR RULE PROPOSALS: 

 Hearing authorization: Final adoption: 

 Background memo (if needed)* Background Memo (if needed)* 

 Fiscal Estimate Response Summary 

 Environmental Assessment (if needed) Fiscal Estimate 

 Rule Environmental Assessment (if needed) 

 Rule 

*If all the questions listed in the REMINDER section above can be adequately summarized on the Green Sheet (and a second sheet if needed), 

the Background Memo may be omitted. 

Unit Reviewer Date Comments 

Management and Budget 

Legal Services 

Marney Hoefer 

Linda Haddix 

Other (if applicable)