Tailoring Rules May Subject Wisconsin Businesses to Federal Permitting

The EPA has proposed two rules to ensure New Source Review Prevention of Significant Deterioration (PSD) permits that address greenhouse gases (GHG) are issued.

The first rule directs 13 states to revise their permitting plans while all other states evaluate their plans to determine if they are adequate.

The second rule creates a federal implementation plan for PSD permits in case a state finds its permits are not adequate and cannot revise them before the Tailoring Rule becomes effective in 2011. This plan gives the EPA temporary authority to issue permits for large GHG emitters in a state while the state revises its rules.

In Wisconsin, permits are issued under a state implementation plan (SIP) except in tribal areas. This means that the first proposed rule obligates Wisconsin to review its SIP to determine if GHGs are adequately covered. If Wisconsin finds that it needs to revise its plan, the second rule provides a federal implementation plan to fill the gap between when permitting is required, January 2011, and the time when the Wisconsin SIP is revised and approved by the EPA. At this time it is unclear whether Wisconsin’s SIP is adequate, and if it is not how long it would take to revise the SIP so the federal plan would not apply.

The EPA has scheduled a hearing on the second proposal for the federal implementation plan on August 25, 2010, and will accept comment for 30 days after that hearing.

(This post was authored by Hamilton consulting Group's intern, Emily Kelchen, a third year law student at the University of Wisconsin Law School.)