December 8, 2010Client Alert

Natural Resources Board Approves Emergency Rule to Implement the “Tailoring Rule” in Wisconsin

On December 8, 2010, the Wisconsin Natural Resources Board approved an emergency rule that effectively implements the federal Tailoring Rule in Wisconsin. The federal Tailoring Rule, finalized by the U.S. Environmental Protection Agency (“EPA”) in May 2010, is intended to mitigate administrative and regulatory burdens that would have resulted from implementing traditional Clean Air Act permit requirements for greenhouse gas (“GHG”) emissions.

In 2009, EPA made its Endangerment Finding, stating that GHGs “threaten the public health and welfare of current and future generations.” Since making that finding, EPA has proposed and finalized a suite of rules requiring GHGs to be regulated pursuant to the Clean Air Act. The Clean Air Act requires “major sources” of regulated pollutants - those that emit more than either 100 or 250 tons per year (depending on the source of the pollutant) – to obtain construction and operating permits. Because GHGs are emitted in much larger volumes than other regulated pollutants, if traditional Clean Air Act permit requirements were imposed on GHG emitters, tens of thousands of facilities would be subject to construction permit requirements and millions of facilities would be subject to operating permit requirements by January 2011.

The Federal Tailoring Rule and the emergency rule approved by the state’s Natural Resources Board on December 8, 2010, substantially increase the GHG emission thresholds that will trigger permitting requirements and establish a phase-in approach for GHG permitting, thereby reducing the number of permits necessary for GHG emissions and reducing the associated administrative burden. The emergency rule is in place to ensure that Wisconsin’s air permitting program is consistent with the federal Clean Air Act requirements by January 2011. The Department intends to have an identical, permanent rule finalized and promulgated by Fall 2011.

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