At its May 21 meeting, the Wisconsin Natural Resources Board voted to modify the state mercury rule to begin second phase emissions reductions on April 16, 2016, rather than the current January 1, 2015 compliance date. This change is necessary to ensure Wisconsin EGUs are not forced to comply with two sets of controls on different time tables.

The NRB heard public testimony from the Great Lakes Legal Foundation supporting the motion but expressing concern with the DNR’s decision to keep the state program in place at all.

According to the Foundation:

The DNR’s reading of the law – that Wisconsin businesses are not deemed to be regulated by EPA until emission controls mandated by EPA are in place and operating – is inconsistent with any reasonable definition of the term “regulated,” EPA actions, and the intent of the legislature in passing 2003 Wis. Act 118, Wisconsin’s landmark regulatory reform enactment. A more realistic interpretation would consider someone or something “regulated” upon agency promulgation, or at the latest, on the effective date of a rule that applies to that person or thing.

If the DNR shared the Foundation’s position that someone or something is regulated upon the promulgation or effective date of a rule that applies to that person or thing, the recommended changes to Wisconsin’s mercury rule would be unnecessary because the state rules would not apply. The agency could then focus on repealing the state rules and adopting rules “similar and consistent, but not more restrictive than, the federal requirements” as required by statute.