January 6, 2012 

Ms. Susan Hedman 

Regional Administrator 

U.S. Environmental Protection Agency 

77 West Jackson Boulevard, R-19J 

Chicago IL 60604-3507 

 Subject: Revisions to Wisconsin’s State Implementation Plan for Protection of Visibility 

Dear Ms. Hedman: 

The Wisconsin Department of Natural Resources (WDNR) hereby submits Chapter NR 433, Protection of Visibility 

by Application of Best Available Retrofit Technology (BART), and Section NR 484.04 (11m), Wis. Adm. Code, for 

approval and incorporation into Wisconsin’s State Implementation Plan (SIP). These rules relate to the identification 

of sources subject to the BART requirements for visibility protection and the determination of BART for those 

sources in accordance with the federal Regional Haze Rule (64 FR 35714 and 70 FR 39104). The following table 

provides a summary of state actions related to development of these rules. 

Table 1: History of Rule Development for the BART Requirements 

Action 

Public Hearing 

Authorization Granted 

by the Wisconsin NRB 

Public 

Hearing(s) 

Conducted 

Rule Adopted by 

the Wisconsin NRB 

Rules 

Published 

Rules 

Effective 

Adopt: 

Chapter NR 433 

Section NR 

484.04 (11m) 

January 24, 2007 

(Agenda Item 3.A.3) 

AM-04-06 

March 13, 2007 

(Wausau, WI) 1

March 15, 2007 

(Milwaukee, WI) 2 

January 22, 2008 

(Agenda Item 3.A.2) June 30, 2008 July 1, 2008 

Revise: 

Sections NR 

433.05(1)(a)4. 

and NR 

433.06(1)(intro.), 

(b)1., and (c) 

March 16, 2010 

(Agenda Item 3.A.4) 

AM-06-09 

April 26, 2010 

(Madison, WI) 3

August 11, 2010 

(Agenda Item 3.A.6)

November 30, 

2010 

December 1, 

2010 

 

1

 Wausau Room, Marathon County Public Library, 300 North First Street, Wausau, WI 

2

 Room 140-141, WDNR Southeast Region Headquarters, 2300 North Dr. Martin Luther King Jr. Dr., Milwaukee, WI 

3

 Room G09, WDNR Building, 101 South Webster Street, Madison, WI 

 NRB – Natural Resources Board 

Scott Walker, Governor 

Cathy Stepp, Secretary 

Telephone 608-266-2621 

Toll Free 1-888-936-7463 

TTY Access via relay - 711

State of Wisconsin 

DEPARTMENT OF NATURAL RESOURCES 

101 S. Webster Street 

Box 7921 

Madison WI 53707-7921 

dnr.wi.gov 

wisconsin.gov 
Page 2 

The WDNR has the legal authority under Wisconsin law to adopt and implement these requested SIP revisions. 

Section 227.11 (2) (a), Wis. Stats., gives state agencies general rulemaking authority. Section 285.11 (1), Wis. 

Stats., authorizes the WDNR to develop rules consistent with ch. 285, Wis. Stats. Section 285.11 (6), Wis. Stats., 

authorizes the WDNR to develop and revise the SIP for prevention, abatement, and control of air pollution. 

In accordance with the April 6, 2011 McCabe Memo, one paper copy of the SIP revision documents is enclosed. In 

addition, an electronic copy of these documents is provided as well on an enclosed CD. If you have any questions 

regarding this submittal, please feel free to call either Joseph Hoch at 608-267-7543 or Ralph Patterson at 608-267-

7546. 

Sincerely, 

William B. Baumann, Acting Director 

Bureau of Air Management 

cc: Patrick Stevens — AD/8 

Joseph Hoch — AM/7 

Ralph Patterson — AM/7 

Cheryl Newton — U.S. EPA Region V (A-18J), 77 West Jackson Boulevard, Chicago, IL 60604 

Douglas Aburrano — U.S. EPA Region V (AR-18J), 77 West Jackson Boulevard, Chicago, IL 60604 

Jacqueline Nwia — U.S. EPA Region V (AT-18J), 77 West Jackson Boulevard, Chicago, IL 60604 

Summary of Attachments: Hard Copy and Electronic 

Attachment 1 U.S. EPA SIP checklist 

Attachment 2 — Chapter NR 433, Wis. Adm. Code, as amended 

Attachment 3 — Section NR 484 (11m), Wis. Adm. Code 

Attachment 4 — Proof of public hearing, including public hearing notice, for BART rules adoption. Copy of legal 

notice from February 9, 2007 Wisconsin State Journal 

Attachment 5 — Background for AM-04-06 and public comments received for BART rules adoption — summary 

and response 

Attachment 6 — Proof of public hearing, including public hearing notice, for BART rules revision. Copy of legal 

notice from March 22, 2010 Wisconsin State Journal 

Attachment 7 — Background for AM-06-09 and public comments received for BART rules revision — summary 

and response 
ATTACHMENT 1
EPA Region V 

Wisconsin SIP Submittal 

Completeness Review

Submittal Letter 

1. Signed by Governor’s Designee (Bill Baumann)? Yes X No 

2. Date of Submittal: January 6, 2012 

3. WDNR Person in charge of SIP submittal. 

Name: Ralph Patterson 

Telephone Number: (608) 267-7546 

 Fax Number: (608) 267-0560 

E-mail Address: Ralph.Patterson@wisconsin.gov 

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

Name: Joseph Hoch 

Telephone: (608) 267-7543 

 Fax Number: (608) 267-0560 

E-mail Address: Joseph.Hoch@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 

No (if No, explain) 

 Wisconsin Natural Resource Board (NRB) Order AM-04-06 created Chapter NR 433 and 

Section NR 484.04(11m) 

 Wisconsin NRB Order AM-06-09 modified Sections NR 433.05(1)(a)4. and NR 

433.06(1)(intro.), (b)1., and (c) 

6. The effective date of the regulation is or was: 

 

 Wisconsin NRB Order AM-4-06 Changes Effective: July 1, 2008 

 Wisconsin NRB Order AM-6-09 Changes Effective: December 1, 2010 

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

state Attorney General 

Yes X 

No (if No, explain) 

 Not applicable (if Not applicable, explain answer) 

 

See Section NR 484.04(11m) 
2

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

implement the revision? Provide additional explanation (if necessary). 

 Yes X 

 No 

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

additional explanation (if necessary). 

 Yes X 

 No 

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? Provide additional explanation (if necessary). 

 Yes X 

 No 

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

publication? Provide additional explanation (if necessary). 

 Yes X 

 No 

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). Provide 

additional explanation (if necessary). 

 Yes X 

 No 

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

additional explanation (if necessary). 

 Yes X 

 No 

Technical Issues 

14. Name all the regulated pollutants affected by the revision. 

 Oxides of nitrogen (NOx) 

 Particulate Matter (PM) 

 Sulfur Dioxide (SO2) 

15. Does the submittal identify the designation, status of the attainment plan and attainment date for 

the area(s)? Provide additional explanation (if necessary). 

 Yes 

 No X 

 Not applicable. 
3

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

explanation (if necessary). 

 Yes X 

 No 

 See Section NR 433.02(1) for a list of BART-eligible sources. 

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

changes in actual emissions from affected sources? Provide additional explanation (if necessary). 

 Yes 

 No X 

 Not applicable. 

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

protected if the revision is approved and implemented? Provide additional explanation (if 

necessary). 

 Yes X 

 No 

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? Provide additional explanation (if necessary). 

 Yes 

 No X 

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? 

Provide additional explanation (if necessary). 

 Yes X 

 No 

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

determined in practice, and at what frequency? Provide additional explanation (if necessary). 

 Yes 

 No X 

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: Protection of Visibility by Application of Best Available Retrofit 

Technology (BART) 

Applicability 

USEPA Question USEPA Requirement State Response 

What sources are being 

regulated? Clear discussion See Section NR 433.02(1) for list of BARTeligible sources. 

What are criteria for 

exemption? Clear discussion 

Section NR 433.05(2): 

“The department may not make a determination 

of BART for SO2 or for NOX if the potential to 

emit of a BART-eligible source is less than 40 

tons per year of the respective pollutant; or for 

particulate matter, if the potential to emit PM10

of a BART-eligible source is less than 15 tons 

per year.” 

Is calculation procedure 

for exemption clearly 

specified? 

Supply example calculation or 

clear explanation of how to 

determine exemption (line by 

line, etc.) 

Yes. 

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 (no ambient standard). 
6

USEPA Question USEPA Requirement State Response 

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. 

Section NR 433.03(3): 

“A BART-eligible source shall be considered 

subject to BART if the air quality modeling 

analysis conducted under sub. (2) demonstrates 

that the source contributes to visibility 

impairment in any mandatory class I federal 

area. A source shall be considered to contribute 

to visibility impairment if for any year modeled 

the 98th percentile daily average change in 

visibility impairment from the source is equal 

to or greater than 0.5 deciviews, as compared 

to natural visibility conditions. Natural 

visibility conditions for each mandatory class I 

federal area shall be the average natural 

visibility impairment of the 20% best visibility 

days, or with department approval of a request 

made by the source owner or operator, the 

annual average natural visibility impairment for 

the class I area.” 

Is bubbling or averaging 

of any type allowed? If 

yes, state criteria. Could a 

USEPA inspector 

independently determine 

if the criteria were met?? 

Does USEPA have to 

approve each case? 

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 whether 

USEPA case-by-case approval 

is required. If provision 

intended to be “generic” then 

USEPA bubble policy must be 

met. 

Not applicable. However, the BART rule does 

allow for emissions trading between boilers (see 

Section NR 433.06). 

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. 
7

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. 

Section NR 433.05(1)4.: 

“The requirement that the owner or operator of 

each source subject to BART shall install and 

operate BART as expeditiously as practicable, 

but in no event later than December 31, 2015.” 

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. No. 

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), 227.14(1m), 285.11(1), 

and 285.11(6), Wis. Stats. 

Are methods/rules 

incorporated by reference 

in the right manner? 

Clearly stated. Yes. See Section NR 484.04(11m) 
8

Recordkeeping

USEPA Question USEPA Requirement State Response 

What records are required 

to determine compliance? Clearly stated. 

A final BART determination is necessary and the

department must issue a revision to the facility’s 

air quality permit which includes the BART 

requirements. 

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 . 

Permit enforceable limits. 

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. 

Section NR 433.05(2): 

“The department may not make a 

determination of BART for SO2 or for NOX if 

the potential to emit of a BART-eligible source 

is less than 40 tons per year of the respective 

pollutant; or for particulate matter, if the 

potential to emit PM10 of a BART-eligible 

source is less than 15 tons per year.” 

Are the criteria for 

application clear? Clearly stated. Yes. 

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. 
ATTACHMENT 2
166−17 DEPARTMENT OF NATURAL RESOURCES NR 433.02

Register November 2010 No. 659

Chapter NR 433

PROTECTION OF VISIBILITY BY APPLICATION OF BEST

AVAILABLE RETROFIT TECHNOLOGY

NR 433.01 Applicability; purpose.

NR 433.02 Definitions.

NR 433.03 Identification of sources subject to BART.

NR 433.04 BART analyses.

NR 433.05 Determination of BART requirements.

NR 433.06 Emissions trading program for boilers.

NR 433.01 Applicability; purpose. (1) APPLICABILITY.

The provisions of this chapter apply to facilities having one or

more BART−eligible sources.

(2) PURPOSE. This chapter is adopted under s. 285.11, Stats.,

to establish the procedures for controlling emissions of air pollutants from BART−eligible sources which may reasonably be

anticipated to cause or contribute to any visibility impairment in

any mandatory class I federal area.

History: CR 07−017: cr. Register June 2008 No. 630, eff. 7−1−08.

NR 433.02 Definitions. The definitions contained in ch.

NR 400 apply to the terms used in this chapter. In addition, the following definitions apply to the terms used in this chapter:

(1) “BART−eligible source” means any of the stationary

sources of air pollutants listed in this subsection, including any

reconstructed source, which was not in operation prior to August

7, 1962, and was in existence on August 7, 1977, and which has

the potential to emit 250 tons per year or more of any visibility

impairing air pollutant. In determining potential to emit, fugitive

emissions, to the extent quantifiable, shall be counted. The stationary sources are as follows:

(a) Fossil fuel−fired steam electric plants of more than 250 million Btu per hour heat input, except for cogeneration units that

supply 1/3 or less of their potential electric output capacity and

219,000 megawatt−hours or less actual electric output on an

annual basis to any utility power distribution system for sale.

(b) Coal cleaning plants (thermal dryers).

(c) Kraft pulp mills.

(d) Portland cement plants.

(e) Primary zinc smelters.

(f) Iron and steel mill plants.

(g) Primary aluminum ore reduction plants.

(h) Primary copper smelters.

(i) Municipal incinerators capable of charging more than 250

tons of refuse per day.

(j) Hydrofluoric, sulfuric, and nitric acid plants.

(k) Petroleum refineries.

(L) Lime plants.

(m) Phosphate rock processing plants.

(n) Coke oven batteries.

(o) Sulfur recovery plants.

(p) Carbon black plants (furnace process).

(q) Primary lead smelters.

(r) Fuel conversion plants.

(s) Sintering plants.

(t) Secondary metal production facilities.

(u) Chemical process plants.

(v) Fossil fuel boilers of more than 250 million Btu per hour

heat input.

(w) Petroleum storage and transfer facilities with a capacity

exceeding 300,000 barrels.

(x) Taconite ore processing facilities.

(y) Glass fiber processing plants.

(z) Charcoal production facilities.

(2) “Best available retrofit technology” or “BART” means an

emission limitation based on the degree of reduction achievable

through the application of the best system of continuous emission

reduction for each visibility impairing pollutant which is emitted

by a stationary source. The emission limitation shall be established on a case−by−case basis, taking into consideration the

technology available, the costs of compliance, the energy and

non−air quality environmental impacts of compliance, any pollution control equipment in use or in existence at the source, the

remaining useful life of the source and the degree of improvement

in visibility which may reasonably be anticipated to result from

the use of the technology.

(3) “Deciview” means a metric for visibility impairment. A

deciview is a haze index derived from calculated light extinction

that is designed so that uniform changes in haziness correspond

to uniform incremental changes in perception across the entire

range of conditions, from pristine to highly impaired. The haze

index in units of deciviews is calculated as follows:

Haze index deciview =10 lne (beXt/10 Mm−1)

where:

beXt is the atmospheric light extinction coefficient,

expressed in inverse megameters (Mm−1)

(4) “In existence” means that the owner or operator obtained

all necessary preconstruction approvals or permits required by

federal or state air pollution emissions and air quality laws or regulations and either began, or caused to begin, a continuous program

of physical on−site construction of the facility, or entered into

binding agreements or contractual obligations, which could not be

cancelled or modified without substantial loss to the owner or

operator, to undertake a program of construction of the facility to

be completed in a reasonable time.

(5) “In operation” means engaged in activity related to the primary design function of the source.

(6) “Integral vista” means a view perceived from within a

mandatory class I federal area of a specific landmark or panorama

located outside the boundary of the mandatory class I federal area.

(7) “Least impaired days” means the average visibility

impairment, measured in deciviews, for the 20% of monitored

days in a calendar year with the lowest amount of visibility impairment.

(8) “Major stationary source” has the meaning given in s. NR

405.02 (22).

(9) “Mandatory class I federal area” means any area identified

in 40 CFR part 81, Subpart D.

(10) “Potential to emit” means the maximum capacity of a stationary source to emit an air pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit an air pollutant including air pollution

control equipment and restrictions on hours of operation or on the

type or amount of material combusted, stored or processed, shall

be treated as part of its design if the limitation or the effect it would

have on emissions is federally enforceable. Secondary emissions
 NR 433.02 WISCONSIN ADMINISTRATIVE CODE 166−18

Register November 2010 No. 659

do not count in determining the potential to emit of a stationary

source.

(11) “Secondary emissions” means emissions which occur as

a result of the construction or operation of an existing stationary

facility but do not come from the existing stationary facility. Secondary emissions may include, but are not limited to, emissions

from ships or trains coming to or from the existing stationary facility.

(12) “Visibility impairing air pollutant” means SO2, NOX or

particulate matter. Particulate matter smaller than 10 microns in

diameter (PM10) may be used as the indicator for particulate matter.

(13) “Visibility impairment” means any humanly perceptible

change in visibility, perceived as light extinction, visual range,

contrast or coloration, from that which would have existed under

natural conditions. Natural conditions include naturally occurring

phenomena that reduce visibility as measured in terms of light

extinction, visual range, contrast, or coloration.

History: CR 07−017: cr. Register June 2008 No. 630, eff. 7−1−08.

NR 433.03 Identification of sources subject to

BART. (1) On or before September 29, 2008, the department

shall identify all BART−eligible sources that may reasonably be

anticipated to cause or contribute to any visibility impairment in

any mandatory class I federal area according to the criteria and

procedures in this section and the applicable guidelines in 40 CFR

part 51, Appendix Y, incorporated by reference in s. NR 484.04

(11m). These sources are identified as sources subject to BART.

The department may request in writing information that is

required for the identification of sources subject to BART from

the owner or operator of a BART−eligible source. The owner or

operator of the source shall submit to the department true, accurate

and complete information in writing within a reasonable time

period specified by the department in its request.

(2) The department shall identify sources subject to BART by

using an air quality modeling analysis to estimate the individual

contribution of each BART−eligible source to visibility impairment in a mandatory class I federal area. The department shall use

an air quality model approved by the EPA and conduct the air quality modeling analysis according to procedures that include all of

the following:

(a) The department shall apply the air quality model to each

BART−eligible source for calendar years 2002, 2003 and 2004.

(b) The individual contribution to visibility impairment shall

be calculated on a daily basis, using emission rates reflecting

steady−state operating conditions during periods of high capacity

utilization of the source. These emission rates shall reflect either

the maximum actual emission rates provided by the owner or

operator, if available and approved by the department, or the

source’s potential to emit. The maximum actual emission rates

shall be the 24−hour average actual emission rate from the highest

emitting day of the meteorological period modeled, unless this

rate reflects periods of start−up, shutdown or malfunction. The

source’s potential to emit shall be averaged over 24 hours or

shorter periods of time.

(3) A BART−eligible source shall be considered subject to

BART if the air quality modeling analysis conducted under sub.

(2) demonstrates that the source contributes to visibility impairment in any mandatory class I federal area. A source shall be considered to contribute to visibility impairment if for any year modeled the 98th percentile daily average change in visibility

impairment from the source is equal to or greater than 0.5 deciviews, as compared to natural visibility conditions. Natural visibility conditions for each mandatory class I federal area shall be

the average natural visibility impairment of the 20% best visibility

days, or with department approval of a request made by the source

owner or operator, the annual average natural visibility impairment for the class I area.

(4) On or before September 29, 2008, the department shall

provide written notice to the owner or operator of each facility

which the department has determined includes a source that is

subject to BART.

History: CR 07−017: cr. Register June 2008 No. 630, eff. 7−1−08.

NR 433.04 BART analyses. (1) No later than 180 days

after the department sends a notification under s. NR 433.03 (4)

that a source is subject to BART, the owner or operator of the

source shall conduct and submit to the department a BART analysis for all emissions units which comprise the BART−eligible

source. If the owner or operator submits a written request for an

extension prior to the BART analysis submittal deadline date, the

department may grant an extension of up to 60 days to the submittal deadline. The BART analysis shall contain all information necessary to evaluate all available retrofit control technologies for

each unit and to determine the level of control that is BART for the

unit, including all of the following:

(a) A list of all emissions units which comprise the BART−eligible source within the facility.

(b) All available retrofit emission control technologies for

each visibility impairing pollutant emitted by each unit subject to

BART at the facility.

(c) An evaluation of each control technology identified in par.

(b), considering all of the following factors:

1. The costs of compliance.

2. The energy and non−air quality environmental impacts of

compliance.

3. Any existing pollution control technology in use at the

source.

4. The remaining useful life of the source.

5. The degree of improvement in visibility which may reasonably be anticipated to result from the use of the technology.

(d) Procedures for an initial performance test and for demonstrating compliance with the emission limits representing BART

on a continuous basis including continuous emission monitoring,

recordkeeping, and reporting according to the applicable requirements of ch. NR 439 or 440.

(2) The BART analysis shall be conducted pursuant to the

applicable guidelines in 40 CFR part 51, Appendix Y, incorporated by reference in s. NR 484.04 (11m).

(3) If the owner or operator of a BART−eligible source proposes to use the emissions trading program under s. NR 433.06 for

compliance with this section, the owner or operator shall submit

to the department the emissions trading plan required under s. NR

433.06 (1).

(4) If the BART analysis for a source subject to BART demonstrates that all control technologies are technologically or economically infeasible, the owner or operator of the source shall propose in the BART analysis a design, equipment, work practice, or

other operational standard, or combination thereof, to meet the

BART requirements. If a design, equipment, work practice or

operational standard is proposed, the analysis shall include a calculation of the emission reductions to be achieved by implementation of the design, equipment, work practice or operation, and

shall provide the method for demonstrating compliance.

(5) The owner or operator of a BART−eligible source shall

certify in writing that any information submitted to the department

under this section is true, accurate, and complete, based on information and belief formed after reasonable inquiry.

(6) The department may request in writing additional information necessary to evaluate the BART analysis. The owner or

operator of the BART−eligible source shall provide the information in writing within the reasonable period of time specified by

the department in the request.

(7) If a fossil fuel−fired steam electric plant subject to BART

is subject to the trading programs of the clean air interstate rule

under 40 CFR part 97, the owner or operator of the fossil fuel−
166−19 DEPARTMENT OF NATURAL RESOURCES NR 433.06

Register November 2010 No. 659

fired electric plant is not required to conduct a BART analysis for

SO2 and NOx emissions under this section.

History: CR 07−017: cr. Register June 2008 No. 630, eff. 7−1−08.

NR 433.05 Determination of BART requirements.

(1) PRELIMINARY DETERMINATION. (a) The department shall make

a preliminary determination of the BART requirements for each

emissions unit which comprises the sources subject to BART

based on the information in the BART analysis required under s.

NR 433.04 and other available information. The preliminary

BART determination for each facility shall include all of the following elements:

1. A list of all emissions units which comprise the source subject to BART.

2. A determination of the BART requirements for each emissions unit.

3. Requirements for initial performance tests and for demonstrating compliance with the emission limits representing BART

on a continuous basis, including emission monitoring, recordkeeping and reporting.

4. The requirement that the owner or operator of each source

subject to BART shall install and operate BART as expeditiously

as practicable, but in no event later than December 31, 2015.

5. The requirement that the owner or operator of each source

subject to BART shall maintain the control equipment required by

the BART determination and establish procedures to ensure the

equipment is properly operated and maintained.

(b) The determination of BART shall be based on the department’s review of the analysis of the best system of continuous

emission control technology available and associated emission

reductions achievable for each unit subject to BART at the facility.

The department shall take into consideration the technology available, the costs of compliance, the energy and non−air quality environmental impacts of compliance, any pollution control equipment in use at the source, the remaining useful life of the source,

and the degree of improvement in visibility which may reasonably

be anticipated to result from use of the technology.

(c) The determination of BART for all emissions units which

comprise the source subject to BART shall be made pursuant to

the applicable guidelines in 40 CFR part 51, Appendix Y, incorporated by reference in s. NR 484.04 (11m).

(d) If the department determines that it is technologically or

economically infeasible for a source to install and operate the

available control technologies, it may instead prescribe a design,

equipment, work practice, or other operational standard, or combination thereof to meet the BART requirements. The department

shall estimate the emission reduction to be achieved by implementation of the design, equipment, work practice or operation,

and shall prescribe the method for demonstrating compliance.

(e) If a fossil−fuel fired steam electric plant is subject to the

clean air interstate rule trading programs under 40 CFR part 97 the

determination of BART shall be made for particulate matter emissions only.

(f) The department shall incorporate the results of its preliminary BART determination in a draft revision to the source’s air

quality permit.

(2) EXCEPTION. The department may not make a determination of BART for SO2 or for NOX if the potential to emit of a

BART−eligible source is less than 40 tons per year of the respective pollutant; or for particulate matter, if the potential to emit

PM10 of a BART−eligible source is less than 15 tons per year.

(3) PUBLIC NOTICE AND COMMENT. The department shall notify

the owner or operator of the source subject to BART and the EPA

of its preliminary BART determination and shall publish a notice

of its preliminary BART determination and the draft permit conditions for public comment. The department shall provide at least 30

days for submittal of written comments.

(4) FINAL DETERMINATION. Following the close of the public

comment period and after consideration of all public comments,

the department shall make a final BART determination and issue

a revision to the facility’s air quality permit which includes the

BART requirements.

(5) REVISION. The department may revise the BART requirements in the air quality permit, if the EPA requires a revision of

the BART requirements or the department determines that the

revision of the existing BART requirements is justified based on

safety, health, environmental or excessive cost impacts which the

original BART analysis and BART determination failed to take

into account. The department shall provide notice and offer an

opportunity for public comment on any proposed revision under

this section.

History: CR 07−017: cr. Register June 2008 No. 630, eff. 7−1−08; CR 10−033:

am. (1) (a) 4. Register November 2010 No. 659, eff. 12−1−10.

NR 433.06 Emissions trading program for boilers.

(1) The owner or operator of a facility, having at least one boiler

subject to BART, may propose an emissions trading program if the

program achieves an improvement in visibility in the mandatory

class I federal areas greater than would be achieved through the

installation and operation of BART on each boiler subject to

BART. The owner or operator of a boiler subject to BART who

is proposing to use an emissions trading program shall submit an

emissions trading plan to the department. The plan shall be subject to department approval and meet the following criteria:

(a) The plan shall contain the proposed control strategy and the

method of demonstrating compliance.

(b) The plan shall achieve either of the following:

1. For each visibility impairing pollutant for which compliance is demonstrated through use of a trading plan, an emission

reduction of that pollutant at least 10% greater than would be

achieved through the installation and operation of BART on each

boiler subject to BART.

2. An improvement in visibility in the mandatory class I federal areas greater than or equal to the visibility improvement

achieved under subd. 1. The improvement in visibility shall be

demonstrated by comparing the 20% best days of visibility and the

20% worst days of visibility in at least the 4 mandatory class I federal areas nearest to the source and for each calendar year 2002,

2003 and 2004. The daily visibility shall be determined using an

air quality model approved by the EPA for predicting visibility

impacts from single emission sources and conducting the air quality modeling analyses according to the guidelines in 40 CFR part

51, Appendix Y, incorporated by reference in s. NR 484.04 (11m).

(c) Trading shall be between all boilers serving a similar function and located on the same property.

(d) Boilers participating in the trading shall achieve the

required emission reductions on a continuous basis and shall be

subject to continuous emission monitoring, which meets the

applicable requirements under ch. NR 439 or 440.

(e) The plan shall specify the monitoring devices and procedures which will be used to provide information sufficient to

assess the performance of the proposed emission control measures and to quantify on an hourly average basis the mass flow of

each pollutant in pounds per hour and the emission rate of each

pollutant in pounds per mmBtu heat input for each boiler participating in the trading. The procedures and methods required for

compliance demonstration and for performance testing shall be

according to the applicable requirements of ch. NR 439 or 440.

(f) Excess emission reductions, for the purposes of meeting the

BART requirements, shall be emission reductions beyond those

required to meet all state and federal requirements and may not

include emission reductions used in any other banking or trading

program.

(2) If the department approves the emissions trading plan, the

department shall propose to revise the source’s air quality permit
 NR 433.06 WISCONSIN ADMINISTRATIVE CODE 166−20

Register November 2010 No. 659

to include the requirements of the emissions trading plan in lieu

of the BART requirements for the boilers identified in the emissions trading plan.

(3) After the department incorporates the emissions trading

plan in the revised air operation permit, the owner or operator of

the BART−eligible source shall comply with the requirements of

the emissions trading plan for the boilers identified in the plan.

History: CR 07−017: cr. Register June 2008 No. 630, eff. 7−1−08; CR 10−033:

am. (1) (intro.), (b) 1., (c) Register November 2010 No. 659, eff. 12−1−10.
ATTACHMENT 3

ATTACHMENT 4
r. 

BEFORE THE 

DEPARTMENT OF NATURAL RESOURCES 

NOTICE OF PUBLIC HEARING 

AM-04-06 

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.11(2)(a), 227.14 (1m) and 285.11(1) and 

(6), Stats., interpreting s. 285.11(6), Stats., the Department of Natural Resources will hold a public 

hearing on the creation of ch. NR 433 and s. NR 484.04(11m) Wis. Adm. Code, relating to the best 

available retrofit technology (BART) requirements for visibility protection. 

The Department is proposing a rule to address BART related State Implementation Plan (SIP) 

revisions which are required by the federal regional haze rule. The Federal regulations require all states, 

including Wisconsin, to develop State Implementation Plans to address visibility impairment in mandatory 

Class I Federal Areas (Class I Areas) by December 2007. One of the provisions of the federal 

regulations is the application of BART requirements to major stationary sources that meet certain criteria 

relating to amount and type of emissions, installation date and source category. The proposed rule 

requires that the affected facilities perform an engineering analysis for the BART determination which 

shall be based on an analysis of the best systems of continuous emission control technology available 

and associated emission reductions achievable for each source subject to BART. This analysis is to be 

performed on a source-by-source basis taking into account the criteria provided by the federal regulation. 

The net effect of the proposed rule would be to examine potential emission control technologies for S02. 

NOx and particulate mailer from approximately 10 power plants and 4 pulp and paper mills that meet the 

criteria in the federal regulations and to determine BART for those emission sources. 

NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 227.114, Stats., it is not anticipated 

that the proposed rule will have a direct economic impact on small businesses. The requirements to 

emission units owned and operated by electric utilities and paper manufacturers may increase the cost of 

their products and therefore may have an indirect impact on small businesses through higher electricity 

costs or the costs of paper products. 

NOTICE IS HEREBY FURTHER GIVEN that the Department has made a preliminary 

determination that this action does not involve significant adverse environmental effects and does not 

need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on the comments 

received, the Department may prepare an environmental analysis before proceeding with the proposal. 

This environmental review document would summarize the Department's consideration of the impacts of 

the proposal and reasonable alternatives. 

NOTICE IS HEREBY FURTHER GIVEN that the hearings will be held on: 

Tuesday, March 13, 2007 Marathon County Public Library, Wausau Room, 300 N. First Street, 

Wausau, WI at 1:00 p.m. 

Thursday, March 15, 2007 Room 140-141, DNR Southeast Region Headquarters, 2300 North Dr. 

Martin Luther King Jr. Dr., Milwaukee, WI at 1:00 p.m. 

NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, 

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

be provided for qualified individuals with disabilities upon request. Please call Robert Eckdale at (608) 

266-2856 or by e-mail to RobertEckdale@wisconsin.gov with specific information on your request at 

least 10 days before the date of the scheduled hearing. 

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

downloaded and comments electronically submitted at the following Internet site: 

http://adminrules.wisconsin.gov. (Search this Web site using the Natural Resources Board Order No. 
AM-04-06.) Written comments on the proposed rule may be submitted via U.S. mail to Mr. Farrokh 

Ghoreishi, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707 or by e-mail to Mr. Ghoreishi 

at Farrokh.Ghoreishi@wisconsin.gov . Comments may be submitted until March 19, 2007. Written 

comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral 

statements presented at the public hearings. If you do not have Internet access, a personal copy of the 

proposed rule and supporting documents, including the fiscal estimate may be obtained from Robert 

Eckdale, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707 or by calling (608) 266-2856. 

Dated at Madison, Wisconsin Aboo7 

STATE OF WISCONSIN 

DEPARTMENT OF NATURAL RESOURCES 

By Sett Hathat 

Scott Hassell, Secretary 
inda Lund, Office Operations Associate 

Bureau of Air Management 

608-264-9206 

Subscribed and sworn to before me 

Notary Public, State of Wisconsin 

My commission e 

Publication to appear in: 

The DNR will publish in: 

Wisconsin State Journal 

PO Box 8056 

Madison, WI, 53708-8056 

On Friday, February 9, 2007 

Location and date of hearing: 

Tuesday, March 13, 2007 

Marathon County Public Library 

Wausau Room, 300 N. First St. 

Wausau, WI at 1:00 p.m. 

Thursday, March 15, 2007 

Room 140-141, DNR Southeast REgion 

Headquarters 

2300 N. Dr. Martin Luther King Jr. Dr. 

Milwaukee, WI at 1:00 p.m. 
STATE OF WISCONSIN Notice/Permit Number: 

DEPARTMENT OF NATURAL RESOURCES AM-04-06 

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.11(2)(a), 227.14 (1m) and 285.11(1) and (6), Stats., 

interpreting s. 285.11(6), Stats., the Department of Natural Resources will hold a public hearing on the 

creation of ch. NR 433 and s. NR 484.04(11m) Wis. Adm. Code, relating to the best available retrofit 

technology (BART) requirements for visibility protection 

Linda Lund, being first duly sworn on oath deposes and says that said person is employed as a Office 

Operations Associate, by the State of Wisconsin Department of Natural Resources; that on the 9th day of 

8th, February, said person deposited in the United States mail at Madison, Dane County, Wisconsin, copies 

of the notice for public hearingto the above entitled action, securely enclosed in envelopes, the postage duly 

prepaid and one copy addressed to each of the following at his/her respective last known address: 

Pamela Blakley, Chief- AR-18J 

US EPA - Region 5 

77 West Jackson Boulevard 

Chicago, IL 60604 

Janice Kelb 

PO Box 146 

Brokaw, WI 54417 

Michael Huenick 

Env. Tech. & Engineering Corp. 

13020 Bluemound Rd. 

Elm Grove, WI 53122 

Gene Mayemick 

Mayemick Assoc., Inc. 

PO Box 201 

North Prairie, WI 53153-0201 

James O'Connor 

Kent & O'Connor Incorporated 

1990 M. Street NW STE 340 

Washington, DC 20036 

Lee Kottke 

Anguil Environmental Consultants 

851 E. Glen Avenue 

Milwaukee, WI 53217 

Michael Mayan 

Environmental Monitoring & Tech. Inc. 

8100 North Austin Ave 

Morton Grove, IL 60053-3203 

Dennis Greil 

Bay Environmental Strategies 

529 S. Jefferson St. - STE 10 

Green Bay, WI 54301 

Clean Wisconsin 

122 State Street STE 200 

Madison, WI 53703-2500 

Environmental Law Society, UW Law School 

975 Bascom Mall 

Madison, WI 53706 

Bro. Don Balentine 

It's About Time, Ltd. 

PO Box 090062 

Milwaukee, WI 53209 

Mike Mayan 

RMC Env. 

PO Box 216 

Rosendale, WI 54974 

Bruce Nines 

Sierra Club 

122 W. Washington St.- STE 830 

Madison, WI 53703 

Mark Larson 

2310 Pinehurst Drive 

Middleton, WI 53562-2541 

Blake Trimbell 

8256 Starr Grass Drive 

Madison, WI 53719-4479 

Dave Bender 

Garvey & Stoddard SC 

634 W Main Street 

Ste 200 

Madison, WI 53703-2697 

Dane County Library Service 

201 W. Mifflin St. 

Madison, WI 53703-2597 
County Clerk, Dane County 

210 Martin Luther King, Jr. Blvd. Deforest Times-Tribune 

Room 112 PO Box 585 

Madison, WI 53703-3342 De Forest, WI 53532 

Mayor, City of Madison 

210 Martin Luther King Jr Blvd 

Madison, WI 53709 

County Executive, Dane County 

210 Martin Luther King, Jr. Blvd. 

Room 421 

Madison, WI 53703-3345 

Dane County Board 

210 Martin Luther King Jr Blvd 

Madison, WI 53709 

Unit Director 

The Community Analysis and Planning Division 

City County Building 

210 Martin Luther King Blvd.-RM 362 

Madison, WI 53703 

GLIFW Commission 

P.O. Box 9 

Odanah, WI 54861-0009 

Ho-Chunk Tribe 

PO Box 667 

Black River Falls, WI 54615 

Capital Times 

City Desk Box 8060 

Madison, WI 53708 

Belleville Recorder 

PO Box 50 

Belleville, WI 53508-0050 

Cambridge News 

201 W. North St. 

Cambridge, WI 53523 

Mt. Horeb Mail 

PO Box 88 

Mount Horeb, WI 53572 

Oregon Observer 

PO Box 26 

Oregon, WI 53575 

Stoughton Courier-Hub 

135 W Main St. STE-102 

Stoughton, WI 53589 

The Independent 

33 N. Main St. 

Deerfield, WI 53531 

Waunakee Tribune 

PO Box 128 

Waunakee, WI 53597 

WDLB/WLJY Radio 

1712 N. Central Ave. 

Marshfield, WI 54449 

WIBA 

Radio Park 

PO Box 99 

Madison, WI 53701 

WISM 

PO Box 2058 

Madison, WI 53701 

WORT 

118 Bedford St. 

Madison, WI 53703 

Dane Co. News-Sickle & Arrow WTDY AM/FM 

1126 Mills St. PO BOX 2058 

Black Earth, WI 53515 Madison, WI 53701 

1..71 \lt 11VGil i11 cult. eucnuai. 

CI 
WISC TV Hometown News, LP 

7025 Raymon Rd. PO Box 645 

Madison, WI 53711 Sun Prairie, WI 53590-0264 

Wisconsin State Journal 

PO Box 8058 

Madison, WI 53708 

WKOW TV 

5727 Tokay Blvd 

Madison, WI 53719 

WMTV 

615 Forward Dr. 

Madison, WI 53711 

Milwaukee Journal Sentinal 

119 Martin Luther King Jr. Blvd. STE LL 

Madison, WI 53703-3355 

Tom Steidl, LS/5 

DMZ. Hearing and Meeting Calendar, CE/6 

Annmarie Kutzke, LS/5 

Others: 

Milwaukee Journal Sentinel 

333 W. State St. Box 661 

Milwaukee, WI 53201-0661 

Daily Herald 

220 First Ave. South Box 8090 

Wausau, WI 54402-1286 

Middleton Times Tribune 

6826 Union Avenue 

PO Box 6 

Middleton, WI 53562 

Don Sutton 

Illinois 

PO Box 19276 

Springfield, IL 62794 

Catherine Fitzsimmon 

Iowa 

7900 Hickman Road, Suite 1 

Urbandale, IA 50322 
ATTACHMENT 5
Report From Agency

REPORT TO LEGISLATURE

NR 433, Wis. Adm. Code

Identification of sources subject to the Best Available Retrofit Technology

(BART) requirements for visibility protection and the determination of 

BART for those sources

Board Order No. AM-04-06

Clearinghouse Rule No. 07-017

Basis and Purpose of the Proposed Rule

The Department is proposing this rule to address the Best Available Retrofit Technology (BART) revisions 

to Wisconsin State Implementation Plan (SIP) which are required by the federal regional haze rule. Under 

s. 285.14(2), Stats., rules that affect the State Implementation Plan must be submitted to standing 

committees of the legislature with jurisdiction over environmental matters at least 60 days before the rule 

may be submitted to the U.S. Environmental Protection Agency. It is the Department’s intent to submit 

the proposed rule to the U.S. EPA as a revision to the State Implementation Plan.

The U.S. Environmental Protection Agency (EPA) published the final “regional haze regulations and 

guidelines for BART determinations” on July 6, 2005 in the Federal Register (70 FR 39104). The federal 

regulations require all states, including Wisconsin, to revise their State Implementation Plans to address 

visibility impairment in Mandatory Class I Federal Areas (Class I Areas), which are specific national parks 

and wilderness areas across the country. The deadline for the SIP submittal is December 17, 2007. 

One of the provisions of the federal regulations is the application of BART requirements to certain existing 

stationary sources which may reasonably be anticipated to cause or contribute to any impairment of 

visibility in a Class I Area. All such sources are “subject to BART”. The state of Wisconsin must submit an 

implementation plan revision containing emission limitations representing BART and schedules for 

compliance for all sources subject to BART. 

The federal regional haze regulation requires that the BART determination be based on an analysis of the 

best systems of continuous emission control technology available and associated emission reductions 

achievable for each source subject to BART. This analysis is to be performed on a source-by-source 

basis taking into account the criteria provided by the federal regulation. 

The rule would require facilities affected by BART to conduct the BART analyses for their sources subject 

to BART and submit the analyses to the Department for review and the determination of BART 

requirements for each emission unit subject to BART. The BART determinations would be part of the 

state implementation plan (SIP) which is subject to EPA approval.

The net effect of the proposed rule would be to examine potential particulate matter (PM) emission 

controls for BART-eligible boilers at 10 power plants and potential SO2, NOx and PM emission controls for 

BART-eligible units at a pulp and paper facility in the State. 

Summary of the rule

The rule establishes a procedure for the determination of BART requirements to control SO2, NOx and 

particulate matter (PM) emissions from sources subject to BART, which are mainly boilers at electric 

generating power plants and at pulp and paper facilities. The electric generating power plants subject to 
2

BART do not need to install, operate, and maintain BART for SO2 and NOx controls, if they are subject to 

the SO2 and NOx trading programs of the Clean Air Interstate Rule (CAIR). This exception is consistent 

with EPA’s finding that CAIR requirements for SO2 and NOx can be a substitute for meeting BART 

requirements. The main elements of the rule are as follows:

 Identifying sources subject to BART based on their individual impacts on visibility impairment in Class 

I Areas and notifying the facilities.

 Requirements for the facilities to perform engineering analyses for BART determinations based on 

the EPA guidelines published in 40 CFR part 51, Appendix Y. If the guidelines do not provide 

sufficient instructions for a specific case, the facility can consult the Department for further information 

and clarification. The time available for conducting the BART analyses is 6 months.

 Requirements for the facilities to provide their BART analyses with all supporting documents to the 

Department for review and BART determinations.

 The BART rule would require that the BART determinations be based on an analysis of the best 

systems of continuous emission control technology available and associated emission reductions 

achievable for each source subject to BART. The Department will determine the emission reduction 

requirements for each source considering the technologies available and the following factors:

a) The costs of compliance

b) The energy and non-air quality environmental impacts of compliance

c) Any pollution control equipment in use at the source

d) The remaining useful life of the source 

e) The degree of visibility improvement that would be achieved as a result of the emission 

reductions.

 An emissions trading program in lieu of BART for boilers located within a facility is a compliance 

option. Facilities which choose to use the emissions trading program must submit an emissions 

trading plan, which would be subject to Department approval. The criteria for the plan approval are 

listed below: 

a) The plan must ensure an emission reduction at least 10% higher for the visibility impairing 

pollutants than would be achieved through the installation and operation of BART or an 

alternative plan that demonstrates equivalent visibility improvement.

b) Trading must be between the boilers located at the same facility. 

c) Boilers participating in the trading must be equipped with continuous emission monitoring 

equipment meeting the applicable requirements under ch. NR 439 or 440.

d) The plan must specify the monitoring devices and procedures which will be used to determine the 

performance of the proposed emission control measures and to provide information sufficient to 

quantify on an hourly average basis the mass flow of each pollutant in pounds per hour and the 

emission rates of each pollutant in pounds per million Btu (British thermal unit) heat input for each 

boiler participating in the trading. The procedures and methods required for compliance 

demonstration and for performance testing shall be according to the applicable requirements 

under ch. NR 439 or 440.

e) For the purpose of meeting the BART requirements, excess emission reductions shall be 

emission reductions beyond those required to meet all state and federal requirements and may 

not include emission reductions used in any other trading or banking program. 

 Requirements that the Department’s determination of BART for a facility be published for public 

comment, and after consideration of all comments become legally enforceable by including them in 

the air quality permit for the facility.

 A provision that allows the Department to revise the BART requirements in the air quality permit, if the 

EPA requires a revision or the Department determines that the revision is justified based on safety, 
3

health, environmental, or excessive cost impacts which the original BART analysis failed to take into 

account. 

Background information for the proposed BART rule

The federal regional haze regulations require all states, including Wisconsin, to revise their SIPs to 

address visibility impairment in Class I Areas. One of the provisions of the federal regulations is the 

determination and application of BART to certain stationary sources. The EPA has published regulations 

and guidelines for the BART determination but has left the decisions on some issues to the states’ 

discretion. These issues along with the Department’s positions are described below.

1. Introduction

The BART provision of the regional haze regulation applies to “BART-eligible” sources. These are major 

stationary sources from 26 identified source categories, which were not in operation prior to August 7, 

1962, and were in existence on August 7, 1977, and have the potential to emit 250 tons per year or more 

of any visibility impairing air pollutant. Among the BART-eligible sources, only those that may cause or 

contribute to any impairment of visibility in any Class I Area are “subject to BART”. Only a source subject 

to BART needs to go through a process to determine the level of emission control and the control 

technology representing BART. The BART determination must be based on a source specific analysis of 

the best systems of continuous emission control technology available taking into account:

a) the cost of control

b) the energy and non-air quality environmental impacts of control

c) any pollution control equipment in use at the source

d) the remaining useful life of the source

e) the degree of improvement in visibility which may reasonably be anticipated to result from the use 

of such technology 

The EPA has provided guidelines for BART determinations, which can be found in Appendix Y of 40 CFR 

part 51. The determination of BART for fossil-fuel fired power plants having a total generating capacity 

greater than 750 megawatts must be made pursuant to the EPA guidelines. The application of the 

guidelines is not mandatory for the other source categories. However, the Department intends to follow 

the EPA guidelines for all BART-eligible sources.

2. Visibility Impairing Pollutants

The rule would consider sulfur dioxide (SO2), nitrogen oxides (NOx) and particulate matter (PM) as 

visibility impairing pollutants. Particulate matter smaller than 10 microns (PM10) will be used as an 

indicator for particulate matter. According to EPA, states should use their best judgment in deciding 

whether certain types of volatile organic compounds (VOCs) as well as ammonia and ammonia 

compounds are likely to have an impact on visibility in a Class I Area. There are significant uncertainties 

in demonstrating the visibility impacts of VOC and ammonia caused by a single source. Therefore, the 

Department does not intend to include these pollutants in the BART determinations. 

3. Sources Subject To BART

The regional haze regulations give states the authority to determine among the BART-eligible sources 

which sources are subject to BART and which sources can be exempted from the BART determinations.

The EPA-guidelines provide three options for the identification of sources subject to BART. 

The Department chose the option which considers the individualized contribution of BART-eligible 

sources to the visibility impairment in Class I Areas and has been conducting source-by-source modeling 

analyses to determine whether the source significantly contributes to visibility impairment in Class I Areas. 

The preliminary results show that ten (10) power plants and an industrial source may be subject to BART. 

The industrial source is a major pulp and paper facility. Further modeling results will be used to finalize 
4

the identification of sources that will be subject to the BART determination. The current preliminary list 

shows that the following facilities potentially have at least one emission unit subject to BART.

Ten Electric generating power plants:

Alliant Energy-Columbia Generating Station

Alliant Energy, Nelson Dewey Gen Station

We Energies-Oak Creek Station

We Energies-Valley Station

WI Public Service Corp - JP Pulliam Plant

Manitowoc Public Utilities

WP & L Alliant Energy - Edgewater Gen Station

Dairyland Power Coop Alma Station

Dairyland Power Coop Genoa Station-EOP

Wisconsin Public Service Corporation- Weston Plant

One Pulp and paper facility:

Georgia-Pacific Corporation (former Fort James Operating Company)

The two other options for determining sources subject to BART are:

a) Consider all BART-eligible sources subject to BART

This option would require the BART determination process for all BART-eligible sources. The 

Department is not proposing this option, because some of the BART-eligible sources have 

minor impacts on visibility impairment in Class I Areas.

b) Consider none of the BART-eligible sources subject to BART

This option required a demonstration that emissions from BART-eligible sources in the state 

are not reasonably anticipated to cause or contribute to any visibility impairment in a Class I 

Area. This option is not applicable for Wisconsin, because the Department has already 

determined that BART-eligible sources in Wisconsin contribute to visibility impairment in the 

nearby Class I Areas.

4. Emissions Trading 

The proposed BART rule includes an emissions trading program. The program is intended to provide 

more flexibility to facilities to meet the requirements of the BART rule. The program provides facilities with 

the option to install emission controls on boilers which are not subject to BART in lieu of the sources 

subject to BART. A facility choosing this option shall submit a plan demonstrating a control strategy that 

achieves at least 10 percent higher emission reductions than would be achieved through the installation 

and operation of BART only on units subject to BART. The plan would be subject to the Department’s 

approval. 

5. Alternative to BART Program 

The regional haze regulation allows states to opt into an alternative measure in lieu of BART. The State 

can use other programs, for example a trading program, as an alternative to BART, if the State can show 

that the alternative program will achieve greater reasonable progress than would be achieved through the 

installation and operation of BART. Based on this alternative, the Department is proposing the emissions 

trading program mentioned above.

The regional haze rule gives states the option to use the Clean Air Interstate Rule (CAIR) as a BART 

substitute for electric generating power plants. This option along with the Department’s proposed 

approach is discussed below.

CAIR as a BART-Substitute for Power Plants
5

There are ten (10) power plants among the BART-eligible sources in Wisconsin. Those power plants are 

also subject to the Clean Air Interstate Rule (CAIR), which is another federal rule designed to address the 

interstate transport of ozone and particulate matter. Although the purpose of CAIR is different from the 

BART rule, both rules require sulfur dioxide (SO2) and nitrogen oxides (NOx) reductions from power 

plants. CAIR provides a cap-and- trade program and applies to all power plants larger than 25 MW 

located in the CAIR-region, which includes the 28 states in the eastern part of the United States. BART, 

on the other hand, needs to be determined on a source-by-source basis and applies to a much smaller 

number of power plants located nationwide.

The EPA conducted modeling analyses comparing BART with CAIR and determined that CAIR makes 

“greater reasonable progress” than BART in terms of the overall improvement in visibility over all Class I 

areas. Based on this finding, the regional haze regulation allows a state participating in the CAIR capand-trade program to treat CAIR as a BART-substitute for power plants. However, if a state believes 

more progress can be made at affected Class I Areas by utilizing BART, the state need not make the 

determination that implementation of CAIR satisfies the BART requirement in that State. Therefore, the 

states have two options, either to treat CAIR and BART as separate requirements, or to consider CAIR as 

a BART substitute for SO2 and NOx, the pollutants covered by CAIR.

The Department has conducted an analysis to investigate the air quality impacts and the cost of control 

for each of the options if applied in Wisconsin. The analysis included all power plants in Wisconsin 

affected by either BART or the CAIR cap-and-trade program, as predicted by EPA in its 2004 modeling 

analysis. The EPA modeling prediction shows that only a limited number of power plants affected by 

CAIR are likely to be equipped with air pollution control systems as a result of open market trading. 

The Department’s analysis showed that the implementation of BART and CAIR as separate rules would 

result in better visibility in the nearby Class I Areas than substituting CAIR for BART. Consequently, the 

Department first proposed making the determination that CAIR satisfies the BART requirements for SO2 

and NOx emissions if the power plant demonstrates that its compliance with CAIR meets its BART 

requirements for SO2 and NOx emissions. However, after receiving several comments on this issue the 

Department has revised its previous proposal and is now proposing to consider CAIR as a BARTsubstitute for the SO2 and NOx requirements. The reasons for the revision are as follows: 

 The regional haze regulation requires states, including Wisconsin, to submit an implementation plan 

addressing regional haze in each Class I area affected by emissions from the state. Emissions from 

Wisconsin mostly affect the visibility in four Class I areas located north of Wisconsin in Michigan and 

Minnesota. The states of Michigan and Minnesota , along with Wisconsin and some other states, 

tribal governments and federal agencies are working together to address the visibility problem in the 

four Class I areas. Although the analyses are not finalized yet, the interim results show that the 

application of BART will not be sufficient to meet the reasonable progress goals required by the 

federal regional haze program for 2018 and additional emission reductions will be required. Our 

current analysis indicates that electric generating power plants as a category are the largest 

contributors to regional haze, as compared with the contributions of the other emission source 

categories. Considering also that the emission controls on power plants are more cost effective, the 

control of SO2 and NOx emissions from power plants will need to be the core element in the state 

implementation plan revisions addressing the reasonable progress goals required by 2018. 

Therefore, the Department intends to propose another rule within a year, the haze rule, which will 

require significant emission reductions from all coal-fired power plants including those older units 

which could be subject to BART. Because the haze rule will be implemented in two phases, the 

emission reductions at power plants in the initial phase will be in a time-frame and at a level 

commensurate with the emission reductions that would otherwise have been associated with BART. 

This approach will be more effective than a unit-by-unit BART determination, and will provide the 

utility companies more flexibility at lower costs to comply with the requirements. In addition, it 

minimizes the time and expenses for conducting site specific engineering analyses required for the 

BART determinations.
6

 As mentioned above, the analyses indicate that there will be more emission reductions required than 

those projected from the application of BART to meet the federal haze requirements. Since a more 

inclusive haze rule is needed for power plants, the BART requirements would be redundant and 

therefore without any significant effect on air quality. In the interests of simplicity and clarity of 

regulations, we believe that SO2 and NOx control requirements are not needed at this time in the 

implementation of BART for power plants that are subject to the CAIR requirements. 

 The EPA’s determination that CAIR is better than BART was upheld by the U.S. Court of Appeals in a 

decision on December 12, 2006. The EPA position was confirmed despite the fact that CAIR may not 

achieve as much visibility improvement as BART in each Class I area. 

Summary of Public Comments

The summary of public comments is attached.

Modifications Made

After consideration of comments that the Department consider the Clean Air Interstate Rule (CAIR) as a 

BART-substitute for electric generating units, the Board adopted revisions to the rule on the CAIR as 

BART-substitute issue and is proposing that the BART-eligible electric generating units subject to a CAIR 

trading program are not required to install, operate and maintain additional control equipment to meet

BART requirements for the pollutants covered by the trading program. This revision is consistent with the 

option allowed in the federal regulation at 40 CFR 51.308(e)4. 

Appearances at the Public Hearing

March 13, 2007 – Wausau

In support – none

In opposition – none

As interest may appear:

Kelly T. Zagrzebski, 4512 Huntington Court, Wausau, WI 54401

March 15, 2007 – Milwaukee

In support:

Elizabeth Wheeler, Clean Wisconsin, 122 State Street, Suite 200, Madison, WI 53702

In opposition:

Michele Pluta, Alliant Energy, 4902 N. Biltmore Lane, Madison, WI 53707

As interest may appear:

Kris McKinney, WE Energies, 333 W. Everett St., A231, Milwaukee, WI 53203

Dave Durment, 231 W. Michigan, P145, Milwaukee, WI 53203

Changes to Rule Analysis and Fiscal Estimate

The rule analysis was changed to reflect consideration of the CAIR rules. The fiscal estimate is 

unchanged.
7

Response to Legislative Council Rules Clearinghouse Report

The recommendations were accepted.

Final Regulatory Flexibility Analysis

The proposed rule does not have a significant economic impact on small businesses. The facilities 

affected by the proposed rule are power plants and major manufacturers of pulp and paper. These 

facilities are not considered to be small businesses.
8

Attachment: Summary of Public Comments and Department Responses

Introduction

Prior to the development of Wisconsin’s BART rule, the Department staff summarized the major issues 

related to the implementation of BART in an information document titled “Strategy for implementation of 

Best Available Retrofit Technology provisions for Wisconsin” in March 2006. That document can be found 

at: (http://dnr.wi.gov/org/aw/air/hot/8hrozonestd/cairbart/BART-Rule%20background.pdf ). Its purpose 

was to provide information regarding BART and to ask the public and stakeholders for comments on the 

different options for the implementation of BART. We also had meetings with the Wisconsin utility 

companies, Clean Air Act Task Force, and pulp and paper companies to inform them about the BART 

requirements and the available options for the implementation of a BART rule. Based on the comments 

we received, we prepared a BART rule proposal that was authorized for public comments by the Natural 

Resources Board in January 2007. That BART rule proposal is posted at: 

https://apps4.dhfs.state.wi.us/admrules/public/Rmo?nRmoId=683

The Department held two public hearings in Wausau and in Milwaukee in March 2007 to receive 

comments on the proposed BART rule. In addition, written comments were submitted to the Department 

by April 9, 2007. 

We received written comments from: Wisconsin Legislative Council (Rules Clearinghouse); Thilmany, 

LLC; Wisconsin Paper Council; WE Energies; Wisconsin Public Service Corporation; Sierra Club (also on 

behalf of Clean Wisconsin); Wisconsin Manufacturers & Commerce; Quarles and Brady on behalf of 

Mosinee Mill of Wausau Paper Specialty Products, LLC; and Alliant Energy. 

Changes to the rule were made to address the comments from the Rules Clearinghouse. Summaries of 

the other comments and our responses are provided below:

Comment: Several commenters requested that the Department consider the Clean Air Interstate Rule 

(CAIR) as a BART-substitute for electric generating units (EGUs). The basis for this request is the EPA 

determination that CAIR will achieve greater reasonable progress towards the national visibility goal than 

would BART for affected EGUs. The federal regional haze program at 40 CFR 51.308(e)(4) states that “A 

State that chooses to meet the emission reduction requirements of the Clean Air Interstate Rule (CAIR) 

by participating in one or more of the EPA-administrated CAIR trading programs for SO2 and NOx need 

not require BART-eligible EGUs subject to such trading programs in the State to install, operate, and 

maintain BART for the pollutants covered by such trading programs in the State”. Since Wisconsin will 

participate in the CAIR trading programs, CAIR as a BART-substitute is a possible option for Wisconsin.

The Department first proposed the BART rule with a provision allowing a power plant subject to BART to 

demonstrate that the reductions achieved through compliance with the CAIR requirements constitute 

compliance with the SO2 and NOx requirements in the BART rule. Almost all comments on this issue 

opposed the deviation from the EPA’s determination and requested a corresponding revision of the 

state’s proposed rule. One commenter supported the proposed approach and stated that it “aligns with 

the purpose of BART and must remain as a central element of the rule”.

Response: After consideration of those comments, the Department staff have recommended revisions of 

the rule on the CAIR as BART-substitute issue and is now proposing that the BART-eligible electric 

generating units subject to a CAIR trading program are not required to install, operate, and maintain 

additional control equipment to meet BART requirements for the pollutants covered by the trading 

program. This revision is consistent with the option allowed in the federal regulation at 40 CFR 

51.308(e)(4). The Department’s reasons for the revision were outlined below:

 The regional haze regulation requires states, including Wisconsin, to submit an implementation plan 

addressing regional haze in each Class I area affected by emissions from the state. Emissions from 

Wisconsin mostly affect the visibility in four Class I areas located north of Wisconsin in Michigan and 
9

Minnesota. The states of Michigan and Minnesota , along with Wisconsin and some other states, 

tribal governments and federal agencies are working together to address the visibility problem in the 

four Class I areas. Although the analyses are not finalized yet, the interim results show that the 

application of BART will not be sufficient to meet the reasonable progress goals required by the 

federal regional haze program for 2018 and additional emission reductions will be required. Our 

current analysis indicates that electric generating power plants as a category are the largest 

contributors to regional haze, as compared with the contributions of the other emission source 

categories. Considering also that the emission controls on power plants are more cost effective, the 

control of SO2 and NOx emissions from power plants will need to be the core element in the state 

implementation plan revisions addressing the reasonable progress goals required by 2018. 

Therefore, the Department intends to propose another rule within a year, the haze rule, which will 

require significant emission reductions from all coal-fired power plants including those older units 

which could be subject to BART. Because the haze rule will be implemented in two phases, the 

emission reductions at power plants in the initial phase will be in a time-frame and at a level 

commensurate with the emission reductions that would otherwise have been associated with BART. 

This approach will be more effective than a unit-by-unit BART determination, and will provide the 

utility companies more flexibility at lower costs to comply with the requirements. In addition, it 

minimizes the time and expenses for conducting site specific engineering analyses required for the 

BART determinations.

 As mentioned above, the analyses indicate that there will be more emission reductions required than 

those projected from the application of BART to meet the federal haze requirements. Since a more 

inclusive haze rule is needed for power plants, the BART requirements would be redundant and 

therefore without any significant effect on air quality. In the interests of simplicity and clarity of 

regulations, we believe that additional SO2 and NOx control requirements are not needed at this time 

in the implementation of BART for power plants that are subject to the CAIR requirements. 

 The EPA’s determination that CAIR is better than BART was upheld by the U.S. Court of Appeals in a 

decision on December 12, 2006. The EPA position was confirmed despite the fact that CAIR may not 

achieve as much visibility improvement as BART in each Class I area. 

Comment: A commenter stated that contrary to “the fact that the Board, and not Department staff, 

creates environmental policy, the proposed rule does not establish a numerical “floor” for BART 

compliance. Rather it puts off setting any standards or any limits, and delegates that duty and authority to 

Department staff- outside of the Board or the public rulemaking process. This results in a rule that does 

not ensure the Board or the public of pollution reduction and leaves too much opportunity for postenactment weakening of this rule. The Board should include numerical limits in the rule or, at a minimum, 

a presumptive minimum that cannot be weakened”.

Response: The purpose of the proposed BART rule is to establish the procedures for determining what 

BART is for each specific emission unit subject to BART. The BART determination process will be similar 

to other control technology-based (Best Available Control Technology and Lowest Achievable Emission 

Reduction) emission limits that are determined through a permit process and include public notice and 

public comments. The Department will publish its preliminary BART determination for each emission 

sources subject to BART and the public will have at least 30 days to comment on each preliminary BART 

determination. Therefore, contrary to the commenter’s opinion, the BART determination will include public 

participation.

Moreover, because the BART rule is intended to include site-specific conditions that take into account the 

five statutory factors, it would be inconsistent with that approach to establish by rule a minimum or 

“numerical floor” for all BART determinations. 
10

Comment: A commenter requested the removal of “section NR 433.06 from the proposed rule to avoid 

backtracking on the Department’s commitment to implement BART in addition to CAIR and to ensure that 

modern pollution controls are put on each of Wisconsin’s power plants”.

Response: Section NR 433.06 provides a facility the option of trading emissions between boilers at the 

facility if the emission reductions achieved by the trading is at least 10% more than the emission 

reductions that would be achieved by applying BART only to the boilers subject to BART. This trading 

option is expected to make the rule more effective and to reduce costs. In addition, the Department is 

committed to providing trading options for NOx reductions under a statutory requirement (s. 285.49, Wis. 

Stats.).

 

Comment: A commenter stated that “...the draft rule does not result in a modification to the Wisconsin 

State Implementation Plan to incorporate the BART determinations and limits for each source. Rather, it 

proposes to merely amend the operating permit for each source. This poses two problems. First, putting 

aside the Department’s backlog of operating permits, operating permits expire and there is no assurance 

that the limits established as BART will be legally enforceable after the expiration of the permit. BART 

limits must be established by rule and included in a SIP to ensure they do not expire. Second, this 

process does not comply with the requirement in 40 C.F.R. § 51.308(e) that Wisconsin “submit an 

implementation plan containing emission limitations representing BART... for each BART-eligible 

source...” Federal law requires the Wisconsin State Implementation Plan to be amended to incorporate 

the limits. It does not allow the concept behind the proposed rule: where only the process of determining 

BART is in the State Implementation Plan, while leaving the actual limits up to the Department outside of 

the State Implementation Plan process.”

Response: The purpose of the proposed BART rule is to establish a procedure for BART determinations. 

The results of the BART determination process will be BART requirements for each source subject to 

BART. Those requirements, as the commenter correctly states, will be incorporated into the state’s 

federally-enforceable SIP as well as in the facility’s permit and will be federally enforceable. In addition, 

the BART requirements will be an “applicable requirement” that is incorporated into the facility’s operation 

permit. That means, that in each permit renewal the BART requirements will remain in place and will be 

enforceable.

Comment: The proposed rule requires that the visibility impacts of BART-eligible sources are determined 

using air quality modeling. A commenter discussed the requirements for conducting the computer 

modeling and requests that the modeling options provided in the rule should be removed

The commenter noted that “The Department is making a one-time determination about whether sources 

are subject to BART based on only three years of data – 2002, 2003, and 2004. The modeling is based 

upon a very small data set considering that all sources subject to this rule have been in operation since at 

least 1977 – over 30 years. It is entirely possible – and quite likely that those three particular years were 

not representative operational years for some sources.” The commenter requests that “the rule should 

specify that all sources must model impacts to Class I areas according to a uniform method used by the 

Department, which should include a requirement to use potential to emit. A source that wishes to rely on 

its 2002 through 2004 actual emissions, based on its assertion that those emissions are representative of 

the source’s emissions in the future, should be required to accept permit limits that prohibit them from 

increasing emissions in the future.”

In addition the commenter requested that “DNR should not permit industry sources to submit CALPUFF 

modeling results based upon contributions to “natural conditions” calculated using the average “natural 

conditions” instead of the 20% best “natural conditions.”

Response: The modeling requirements and the options included in the rule are provided to be 

consistence with the corresponding EPA guidance and recommendations. The Department has not 
11

deviated from the EPA recommendations and followed EPA guidance for the modeling. The specific 

issues raised by the commenter are addressed below:

According to the federal regional haze regulation, states have discretion to identify BART-eligible sources 

with minor visibility impact on Class I areas and exempt them from BART requirements. Therefore, the 

proposed rule requires that the Department conduct computer modeling to determine the visibility impact 

of each BART-eligible source on Class I areas and exempts sources with a visibility impact below the 

threshold defined in the proposed rule. The modeling years 2002, 2003 and 2004 were selected because 

meteorological data for those years were available when the Department began with the preliminary 

modeling and rule development. In addition, the selected modeling years and period are consistent with 

EPA’s recommendations.

Using maximum actual emission rates for the modeling is consistent with EPA’s recommendations. The 

proposed rule offers sources the option to use the source’s “potential to emit”, because some sources 

may not record their actual emissions daily. The source’s “potential to emit” is an approximation of the 

maximum actual emissions.

The visibility impact of each source is expressed in “deciviews”, a unit defined with the intention to better 

express impairment as visually perceived. It depends on the level of background impairment (also called 

natural conditions) in each Class I area. Therefore, the rule requires the visibility impact of each source to 

be compared against a background which represents the average of the 20% best days of natural 

conditions. To correspond with the EPA’s recommendations the proposed rule also provides a facility the 

option to use the annual average natural visibility as background conditions, if the modeling is performed 

according to the EPA’s requirements as verified by the Department.

Comment: The Department received comments expressing concerns that the separation between the 

BART portion of the regional haze requirements from the requirements for achieving the reasonable 

progress goals is a “problem for regulated sources”. The issue seems to be the uncertainty caused by 

possible differences between the requirements for BART and those for achieving the reasonable progress 

goals. The commenter stated that “Companies could be subject to differing regulatory requirements for 

the same pollutants and these potentially differing requirements could result in unnecessary costs or 

compliance traps for companies.” The commenter requested that the Department provide more 

information about it’s regulatory activities in respect to regional haze. The commenter recommended that 

the Department form a stakeholder group that would meet periodically with the Department’s staff to 

closely monitor the implementation of the BART rule and the development of the reasonable progress 

rule.

Response: The requirements for application of BART and those for achieving the reasonable progress 

goals are separate, but complementary, provisions of the regional haze regulations. For BART, the states 

are required to identify the sources subject to BART and determine BART on a source-by-source basis. 

On the other hand, the requirements for achieving the reasonable progress goals may include emission 

limits for entire source categories or individual sources. Sources affected by both provisions need to 

develop a control strategy meeting the requirements of both provisions. 

The Department intends to inform the public and stakeholders about the relevant regulatory activities with 

respect to regional haze and intends to meet periodically with stakeholders.

Comment: A commenter urged the Department to include a definition for the source category “fossil fuelfired steam electric plants” in the BART rule, consistent with the definition of the electric generating units 

(EGUs) in the Clean Air Interstate Rule (CAIR). The purpose of the definition is to exclude the industrial 

cogeneration units from the BART source category called “fossil fuel-fired steam electric plants”. As a 

supporting document, the commenter provided a copy of a letter from EPA to the American Forest & 

Paper Association dated April 4, 2007.
12

Response: According to the EPA letter to the American Forest & Paper Association 

“...it would be reasonable for a State, for Regional Haze purposes, to treat EGUs as synonymous with the 

category of fossil-fuel fired steam electric plants of more than 250 million British thermal units per hour 

heat input (million BTU/hr), which is BART category number one.” 

Consistent with this statement of EPA, the Department is proposing a rule revision to clarify that an 

industrial cogeneration unit that supplies less than one-third of its potential electric output capacity on an 

annual basis to any utility power distribution system for sale, is not considered a “fossil fuel-fired steam 

electric plant” for the BART-eligibility determination.

Comment: Referring to s. NR 433.04 of the proposed rule, a commenter urged the Department to clarify 

that not all available retrofit control technologies need to be evaluated for the BART determinations. The 

control technology representing BART should be determined using a top-down approach and the analysis 

should stop when BART has been determined and any additional evaluations beyond that point should 

not be required.

Response: It is the Department’s intention to streamline the BART determination process while avoiding 

ambiguous requirements that can be interpreted differently. The top-down approach would simplify the 

identification of BART if the performance and the costs of all available technologies were known for all 

emission units. However, this may not be the case. Especially for industrial sources, the top-down order 

of the available control technologies may be debatable. Therefore, all available control options need to be 

included in the BART analysis. However, if in any case it is obvious which control option would represent 

BART, the BART analysis simply needs to address the other options to demonstrate that the selected 

option represents the best option. In such a case, all available options would be addressed, but a fullblown analysis of each option would not need to be conducted.

Comment: A commenter suggests that the BART rule should allow the extension of the deadline for 

submittal of the BART analysis beyond 6 months with the approval of the Department.

Response: The Department has proposed a revision to the rule to allow one extension of up to a 

maximum of two months (60 days) for submittal of the BART analysis, subject to the Department’s 

approval.

Comment: Section NR 433.04(6) of the proposed rule requires that if the Department needs additional 

information “the owner or operator of the BART-eligible source shall provide the information within a 

period of time specified by the department”. The commenter requests that the language should be revised 

to read “... within a reasonable period of time...”

Response: The Department has modified the proposed language accordingly.

Comment: Section NR 433.05(5) of the proposed rule provides the Department with the ability to revise 

BART requirements if EPA does not approve the BART determination in the State Implementation Plan 

(SIP) or if a revision is required based on unforeseeable safety, health, environmental, or cost impacts. 

Recognizing the purpose of the provision, a commenter pointed out that “the language of s. NR 433.05 

reads as though the department could revise the BART requirements at any time”. The commenter 

suggested that the language be revised by using the term “final BART determination” rather than “BART 

requirements”. In addition, the commenter requested that “technical feasibility” should be added to the 

reasons for a revision of the already determined BART. 

Response: The revision of BART requirements is supposed to be for unexpected events such as EPA’s 

objection to the BART determination. It is also intended as a safety measure for the rare case that the 
13

implementation of BART, as determined in the BART determination process, would cause health, safety, 

environmental, or excessive cost problems that could not be foreseen at the time that the BART 

determination was conducted. Considering that any revision of the existing BART requirements would 

need to be subject to public comments, the Department can and would not propose any revision to the 

existing BART requirements which is not justified. The BART revision procedure would be similar to that 

described for the revision of operation permits (see 285.62, Stats.).

As mentioned above, s. NR 433.05(5) of the proposed rule covers the unexpected problems; the 

Department staff does not think that the “technical feasibility” should be an unexpected problem after the 

BART determination has been conducted. The technical feasibility of control options is one of the main 

reasons for the BART determination analysis and should not be considered an unexpected issue. 

Comment: Referring to s. NR 433.06(1) (b) 2 of the proposed rule, a commenter suggested that, when 

using the emission trading option, the demonstration of visibility improvement should be limited to only 

those Class I areas where the source was shown to significantly contribute to visibility impairment. The 

proposed rule required this demonstration in the four Class I areas nearest to the source.

Response: We have limited the demonstration of visibility improvement to the four Class I areas in order 

to streamline the analyses and to simplify the rule requirements. The Department’s air quality modeling 

analyses show that the emissions from BART eligible sources in Wisconsin would significantly impact the 

visibility in the four Class I areas north of Wisconsin. These Class I areas are Boundary Waters Canoe 

Area Wilderness, Voyageurs National Park, Isle Royale National Park, and Seney Wilderness Area. 

Assuming a facility has somehow determined that its affected sources significantly impacts only one of 

the four Class I areas, the practical approach would be to concentrate the detailed analysis for BART 

determination on that Class I area. However, the final modeling run should include all four Class I areas 

to demonstrate that the visibility improvement in the other Class I areas meet the “better-than-BART” 

criteria, as well. This is a simpler approach than the approach suggested by the commenter. The 

commenter’s suggestion would require that the facility first demonstrate which class I areas are 

significantly affected by the source and the BART rule has to define what “significant” impact means for 

that demonstration. Considering that it is a relatively simple procedure to include all four Class I areas in 

the final modeling run, the approach as proposed in the rule provides straightforward and sound results. 

Comment: Section NR 433.06(1)(e) of the proposed rule deals with monitoring under the trading option 

and specifies hourly monitoring. One commenter suggested that daily or a 24-hour basis should be 

allowed since this would make compliance monitoring consistent with the applicability provision that a 

source has the ability to use the maximum 24-hour average actual emission rate for determining a 

contribution to visibility impairment. 

Response: The averaging time interval for compliance with BART requirements will be determined on a 

source-specific basis in the BART determination process. The purpose of s. NR 433.06(1) (e) of the 

proposed rule is to require a monitoring system that is able to determine the emissions on an hourlyaverage basis. This requirement is consistent with the monitoring requirements of the EPA trading 

programs for boilers participating in the SO2 cap-and-trade program or the NOx trading program and 

makes use of already available data for many boilers participating in other emission trading programs. 

Comment: One commenter requested that the department allow sources affected by BART to implement 

alternate programs in lieu of source-by-source BART since the federal regulations allow this in 40 CFR 

Subpart P.

Response: The federal regulations provide a broad framework for alternative measures and they can be 

as elaborate as a regional trading program. Considering the limited number of sources subject to BART in 

Wisconsin, available resources, and the feedback from the affected facilities, the Department prepared a 
14

more specific trading program as described in s. NR 433.06 of the proposed BART rule. This program 

allows trading among all boilers within a facility. 

 

Comment: A commenter pointed out that the rule needed to cite specific applicable provisions in chs. NR 

339 and NR440, Wis. Adm. Code, in regard to compliance demonstration, recordkeeping, and reporting 

requirements

Response: The purpose of the proposed BART rule is to establish a procedure for determining BART for 

a variety of emission sources belonging to different source categories. BART itself will be determined on 

a source-specific basis considering engineering analyses conducted by the affected facilities. The BART 

determination, like a facility’s air quality permit, will include unit-specific requirements for monitoring, 

recordkeeping, and reporting as well as references to specific applicable provisions in chs. NR 339 and 

NR 440, if needed. The reference generally to chs. NR 339 and NR 440 in the proposed rule provides 

facilities a framework for establishing the monitoring, recordkeeping, and reporting requirements. Citing 

specific provisions of chs. NR 439 and NR 440 is unnecessary and not helpful at this phase of the BART 

determination process, considering the variety of the sources and their unknown emission controls.

Comment: The Department received comments stating that specific emission units should not be subject 

to BART. The basis for the comments is the Department’s preliminary determination of sources subject to 

BART.

Response: The Department staff used the agency’s database for identification of BART-eligible sources 

and has been conducting preliminary modeling analyses to determine the sources subject to BART in 

Wisconsin. Current results are preliminary and subject to change. The data used as input for the 

modeling and the results have been shared with the facilities to inform them of the status of the 

preliminary analyses and to ask them for comments and information if incorrect data were used for the 

analyses. 

The Department will continue to work with the facilities to clarify whether a specific source is subject to 

BART or if it is exempt. 

BEFORE THE 

DEPARTMENT OF NATURAL RESOURCES 

NOTICE OF PUBLIC HEARING 

Natural Resources Board Order AM-06-09 

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 amendments to s. NR 

433.05 and 433.06, relating to implementation of best available retrofit technology for the protection of 

visibility in mandatory class I federal areas. The proposed amendments relate to issues for State 

Implementation Plan approvability, and the State Implementation Plan developed under s. 285.11(6), 

Stats., will be revised. 

Hearing Information 

Date and Time 

April 26, 2010, Monday, at 1:30 PM 

Location 

WI DNR Building (GEF 2) 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 

53703; 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 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 . 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, 

53703, or by calling 608.266.2856. 

Submitting Comments 

Comments on the proposed rule must be received on or before Friday, May 7, 2010. 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: 

Tom Karman 

Department of Natural Resources 

Bureau of Air Management (AM/7) 

101 S Webster St, Madison, WI 53703 

Phone: 608 264-8856 

Fax: 608.267.0560 

E-mail: thomas.karman@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: Section 285.11(6), Stats. The State Implementation Plan developed under s. 

285.11(6), Stats., is revised. 

Statutory authority: Sections 227.11(2)(a) and 285.11(1) and (6),Stats. 
By ,ry 4 e re# 

Matthew J. Frank, Secretary 

Fiscal Estimate Summary: The proposed rules have no fiscal effect on state and local government, 

and no significant fiscal effect on the private sector. The proposed revisions to ch. NR 433 do not alter 

which sources are subject to BART, the required level of emission control, or final compliance requirements 

under the Wisconsin BART rules. Based on this premise, there is no change anticipated for the fiscal cost of 

implementing the BART rule. 

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. 

Dated at Madison, Wisconsin 

STATE OF WISCONSIN 

DEPARTMENT OF NATURAL RESOURCES 
Publication to appear in: 

The DNR will publish in: 

Wisconsin State Journal 

PO Box 8056 

Madison, WI, 53708-8056 

On Monday, March 22, 2010 

Location and date of hearing: 

Monday April 26, 2010 at 1:30 PM 

WI DNR Building (GEF 2) 

Room G09 

101 S. Webster 

Madison, WI 

ins a Lund, Office Operations Associate 

Bureau of Air Management 

608-264-9206 

Subscribed and sworn to before me 

this day of ao la 

Notary Public, State of isconsin 

My commission expires: a01.3 

, 

1 ,„,F VVIS) 

• 
STATE OF WISCONSIN Hearing Notice: 

DEPARTMENT OF NATURAL RESOURCES AM-06--09 

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 amendments to s. NR 433.05 

and 433.06, relating to implementation of best available retrofit technology for the protection of visibility in 

mandatory class I federal areas. The proposed amendments relate to issues for State Implementation Plan 

approvability, and the State Implementation Plan developed under s. 285.11(6), Stats., will be revised. 

Linda Lund, being first duly sworn on oath deposes and says that said person is employed as a Office 

Operations Associate, by the State of Wisconsin Department of Natural Resources; that on the 22nd day of 

March, 2010, said person deposited in the United States mail at Madison, Dane County, Wisconsin, copies 

of the notice for public hearing to the above "entitled action, securely enclosed in envelopes, the postage duly 

prepaid and one copy addressed to each of the following at his/her respective last known address: 

Environmental Law Society, UW Law School 

975 Bascom Mall 

Madison, WI 53706 

Bro. Don Balentine 

It's About Time, Ltd. 

PO Box 090062 

Milwaukee, WI 53209 

Pamela Blakley, Chief - AR-18J 

US EPA - Region 5 

77 West Jackson Boulevard 

Chicago, IL 60604 

Janice Kelb 

PO Box 146 

Brokaw, WI 54417 

Michael Huenick 

Env. Tech. & Engineering Corp. 

13020 Bluemound Rd. 

Elm Grove, WI 53122 

James O'Connor 

Kent & O'Connor Incorporated 

1990 M. Street NW 

Ste. 340 

Washington, DC 20036 

Lee Kottke 

Anguil Environmental Consultants 

851 E. Glen Avenue 

Milwaukee, WI 53217 

Gregory Denny 

Environmental Monitoring & Tech. Inc. 

8100 North Austin Ave 

Morton Grove, IL 60053-3203 

Dennis Greil 

Bay Environmental Strategies 

529 S. Jefferson. St. 

Ste. 10 

Green Bay, WI 54301 

Clean Wisconsin 

122 State Street, Ste. 200 

Madison, WI 53703-2500 

Mike Mayan 

RMC Env. 

PO Box 216 

Rosendale, WI 54974 

Bruce Nilles 

Sierra Club 

122 W. Washington St. 

Ste. 830 

Madison, WI 53703 

Mark Larson 

2310 Pinehurst Drive 

Middleton, WI 53562-2541 

David C. Bender 

McGillivray Westerberg & Bender LLC 

305 S. Paterson Street 

Madison, WI 53703 

Dane County Library Service 

201 W. Mifflin St. 

Madison, WI 53703-2597 

Milwaukee Journal Sentinel. 

333 W. State S. 

PO Box 661 . 

Milwaukee, WI 53201-0661 

•Jk.1,4. QUIS.G311a. 
Tom Steidi — LS/8 

Marney Hoefer - LS/8 

Mike Scott — LS/8 

John Melby — AM/7 

Rick Wulk NER/Green Bay 

Imelda Stamm NER/Oshkosh 

Neal Baudhuin — NR/Rhinelander 

Daniel Schramm — SER/Milwaukee 

Bill Yantawood SER/Waukesha 

Tom Roushar — SCR/Fish Hatchery 

Jeffery Johnson — WCR/Eau Claire 

Others: 

None. 

1

Report From Agency

REPORT TO LEGISLATURE

NR 433.05 and 433.06, Wis. Adm. Code

Implementation of best available retrofit technology for the protection of visibility in mandatory class I 

federal areas

Board Order Number: AM-06-09

Clearinghouse Rule Number: CR 10-033

BASIS AND PURPOSE OF THE PROPOSED RULE

In January 2008, the Natural Resources Board adopted rules establishing ch. NR 433, requiring Best 

Available Retrofit Technology (BART) for the protection of visibility. Specifically, the BART 

requirements pertain to controlling particulate matter, nitrogen oxides and sulfur dioxide emitted from 

certain stationary sources which cause or contribute to impairment of visibility in mandatory class I 

federal areas. For Wisconsin, these areas are the Boundary Waters Canoe Area Wilderness and Voyageurs 

National Park in Minnesota, and the Seney National Wildlife Refuge and Isle Royal National Park in 

Michigan. The rule sets forth procedures for identifying stationary sources potentially subject to BART 

and for determining appropriate control levels for each source based on several factors including visibility 

improvement.

Since the initial creation of BART requirements, the Department and affected stakeholders have identified 

several implementation issues and the need for certain rule clarifications. The revisions proposed by this 

rule package are in response to those issues.

Summary of the rule revisions

Compliance Date for BART Controls

The current BART rules require the owner or operator of a source which has been determined to be 

subject to BART controls to have those controls in place and operating "as expeditiously as practicable" 

but no later than December 31, 2013. The Department is proposing to extend the final allowed 

compliance date to December 31, 2015. This extended compliance date provides additional time for 

sources which are undergoing significant installations of control equipment, particularly in the case of a 

source implementing controls for multiple pollutants or emissions units. Extending the final compliance 

date to December 31, 2015 does not relax the requirement for controls to be in place as expeditiously as 

practicable.

Emissions Averaging

The Department is proposing clarifications to the emissions averaging provisions of the BART rules. One 

change pertains to the extra 10% emission reduction required in order to qualify for the additional 

compliance flexibility afforded by emissions averaging under the current rule provisions. The proposed 

revision clarifies that the additional reduction applies only to the pollutant being offset by other 

reductions achieved under the averaging plan. 

Another proposed revision clarifies the intent that emissions averaging must account for all sources at a 

facility which can impact the real emission reductions achieved under BART requirements. Due to the 

nature of the regulation, BART may apply to one emissions unit at a facility but not to other similar 

emissions units. To avoid simply shifting emissions from one boiler to another, the BART rule currently 

requires all boilers at a facility to be included in any emissions averaging program. However, this 
2

language may unnecessarily include units which cannot be used to offset operational load or emissions of 

a BART affected boiler. For that reason, a revision is proposed to require only the boilers serving a 

similar function at the facility be included in emissions averaging because those boilers can affect the 

amount of actual emission reductions achieved by BART.

The Department also proposes to modify the emissions averaging program to allow an owner or operator 

of a BART affected source to submit a proposed emissions averaging plan at any time, not just during the 

initial BART determination process. Determining the best control approach for a source may require 

significant additional analysis once the BART control levels have been finalized. Therefore, the 

Department proposes to revise the BART rule to allow for future submittals of an emissions averaging 

plan. If submitted later, the emissions averaging plan must still show that the necessary emission 

reductions will be achieved by the compliance date set under the initial BART determination. This 

approach will also allow sources flexibility for submitting a revised averaging plan as operating 

conditions at the source change.

SUMMARY OF PUBLIC COMMENTS

Written comments were submitted by Alliant Energy and Georgia Pacific, both of which operate emission 

sources affected by the proposed rules. The substantive comments and issues, and the Department’s 

associated response, are as follows.

Issue 1) Final Compliance Date

This rule making proposes to extend the final compliance date for requiring operation of BART controls 

from December 31, 2013 to December 31, 2015. There were several comments related to the final 

compliance date.

Comment –Both sets of comments supported the change to the compliance date but sought even further 

extension. Alliant Energy suggested that the additional time would be necessary if EPA changes their 

Federal Clean Air Interstate Rule (CAIR), which currently allows SO2 and NOx BART requirements for 

electric utilities to be met through complying with CAIR.

Response – The Department extended the compliance date two years, to December 31, 2015, to allow 

for planning and installation of control equipment for the sources currently affected under the state's 

BART rule. The 2015 date is sufficient to allow for installation of the most intensive SO2 and NOx 

controls that may require several years for completion. At this time, EPA has not proposed revisions 

to the CAIR rule. If EPA does promulgate a revised CAIR that changes its interaction with BART, 

the Department will consider making related changes to the state BART rule. However, at this time 

the Department does not recommend further delay in reducing the amount of SO2 and NOx emitted 

and achieving the resultant health and environmental benefits.

Issue 2) Existing BART Rule Provisions and Their Effect on Final Compliance Date

Comment - Georgia Pacific suggests sources demonstrating compliance through emissions averaging 

under the state BART rule are not subject to a compliance date. 

Response - The trading provisions are meant to provide flexibility to the source to meet BART 

emission reduction requirements, not eliminate the compliance date as suggested by Georgia Pacific.

The compliance date under an averaging program would not exceed the final compliance date 

established in the rule which, if adopted, is December 31, 2015. 
3

Comment - Georgia Pacific suggests that NR 433.05(5) in the BART rule allows the Department to 

consider an extended compliance date.

Response – To clarify, NR 433.05(5) allows the Department to revise BART requirements in a permit 

if the Department determines that the revision is justified based on safety, health, environment, or 

excess costs not considered when the Department originally made the BART determination. This 

provision allows the Department to address conditions that cannot be foreseen through the BART 

determination process, but it does not allow the Department to generally extend the compliance date 

farther into the future than is specifically warranted by the known conditions leading to the extension 

until 2015.

Issue 3) Boilers Required to Participate in an Emissions Trading Program

This rule proposes to modify the boilers required to participate in emissions trading from "all boilers" to 

"boilers serving a similar function" which are located at the affected facility. This proposed change 

provides additional compliance flexibility for facilities without jeopardizing the emission reduction 

requirements of the rule.

Comment – Georgia Pacific suggested that only those boilers at a facility subject to BART be required to 

participate in emissions trading if that compliance option is utilized.

Response – The original rule established the trading program to provide compliance flexibility to 

facilities when they are installing control equipment to comply with the BART requirements. The 

proposed rule change clarifies the scope of boilers used in averaging but not in the same way 

recommended in the comment. The comment proposal would allow a facility to shift loads to other 

boilers resulting in less emission reduction and so is not recommended.

MODIFICATIONS MADE

No modifications were made in response to the public comments received.

APPEARANCES AT THE PUBLIC HEARING

The Department held a hearing on April 26, 2010 at the DNR Building located at 101 S. Webster Street in 

Madison, WI. One person attended as indicated below.

In support: None

In opposition: None

As interest may appear: Kathleen Standen, We Energies, 22 E. Mifflin St., Suite 850, Madison, WI

CHANGES TO RULE ANALYSIS AND FISCAL ESTIMATE

No changes to the fiscal estimate were necessary. The rule analysis was changed to reflect a change in 

terminology recommended by the Legislative Council Rules Clearinghouse, and discussed in the next 

section of this report.

RESPONSE TO LEGISLATIVE COUNCIL RULES CLEARINGHOUSE REPORT

The Clearinghouse provided a comment on Form, Style and Placement in Administrative Code relating to 

the use of the term “particulate matter” instead of “particulate” in the analysis section of the Order. The 

recommended change was made.
4

FINAL REGULATORY FLEXIBILITY ANALYSIS

The existing rule requirements apply to large industrial sources or electric generation units which are not 

small businesses. Therefore based on the limited nature of the proposed rule changes there is no impact 

anticipated to small businesses.