b. A summary of existing federal regulatory programs that address similar
matters.
c. A summary of the data, studies, and other sources of information on which
the proposed rule is based.
d. A summary of the methodology used to obtain and analyze the data and how
the data supports the regulatory approach and the agency's findings.
5. Requires the agency to submit a proposed rule in final form to the governor
for review, modification, or rejection.
6. Requires the administrator of the division of hearings and appeals to
randomly assign hearing examiners to preside over administrative hearings.
7. Allows a person to request the substitution of an administrative hearing
examiner and provides a procedure for that substitution.
8. Prohibits a hearing examiner from making any decision regarding
constitutional issues.
9. Removes the provision that allowed certain agencies to have the hearing
examiner make a proposed decision and have designated officials of the agency
review that proposed decision and issue a final decision. Instead, the hearing
examiner's decision is final.
10. Allows a hearing examiner to award the successful party his or her costs,
including attorney fees, if the hearing examiner finds that the other party's claim or
defense is frivolous.
11. Allows the venue of judicial review of a contested case where the petitioner
is a nonresident to be in the county where the property involved is located or if no
property involved, in the county where the dispute arose, instead of in Dane County
as is current law.
Air quality management
Air quality standards and emission standards for hazardous pollutants
Under the federal Clean Air Act (CAA), the Environmental Protection Agency
(EPA) has established a national ambient air quality standard (NAAQS) for each of
six air pollutants, including ozone. Under current state law, if EPA establishes an
NAAQS for a substance, the Department of Natural Resources (DNR) must
promulgate by rule a similar ambient air quality standard, which may not be more
restrictive that the federal standard. If EPA relaxes an NAAQS, DNR must alter the
corresponding state standard unless it finds that the relaxed standard would not
provide adequate protection for public health and welfare. Current law also
authorizes DNR to promulgate an ambient air quality standard for a substance for
which EPA has not promulgated an NAAQS if DNR finds that the standard is needed
to provide adequate protection for public health or welfare.
This bill eliminates DNR's authority to promulgate an ambient air quality
standard for a substance for which EPA has not established an NAAQS. The bill also
provides that if EPA modifies an NAAQS, DNR must alter the corresponding state
standard accordingly.
The CAA requires EPA to establish national emission standards for hazardous
air pollutants (NESHAPs). Under current state law, if EPA establishes an NESHAP
for a substance, DNR must promulgate by rule a similar standard, which may not
be more restrictive than the federal standard in terms of emission limitations. If EPA
relaxes an NESHAP, DNR must alter the corresponding state standard unless it
finds that the relaxed standard would not provide adequate protection for public
health and welfare. Current law also authorizes DNR to promulgate an emission
standard for a hazardous air contaminant for which EPA has not promulgated an
NESHAP if DNR finds that the standard is needed to provide adequate protection
for public health or welfare.
This bill provides that if EPA establishes an NESHAP for a substance, DNR
must promulgate a rule that incorporates the NESHAP and related administrative
requirements. The bill prohibits DNR from promulgating a rule that is more
restrictive in terms of emission limitations or otherwise more burdensome to
operators of sources affected by the rule than the NESHAP and related
administrative requirements.
The bill prohibits DNR from promulgating an emission standard for a
hazardous air contaminant for which EPA has not promulgated an NESHAP unless
DNR conducts a public health risk assessment that identifies the sources in this
state that emit the contaminant, shows that identified individuals are subjected to
levels of the hazardous air contaminant that are above recognized environmental
health standards, evaluates options for managing the risks caused by the
contaminant, considering costs and other relevant factors, and finds that the
compliance alternative chosen by DNR for the contaminant reduces risks in the most
cost-effective manner practicable.
State implementation plans and nonattainment areas
Under the CAA, an area with levels of a pollutant above an NAAQS must be
designated as a nonattainment area. Nonattainment areas are subject to more
stringent requirements under the CAA than other areas.
The CAA requires each state to submit implementation plans to show how the
state will ensure that air quality in the state complies with each NAAQS, including
showing how the state will reduce the level of pollutants in its nonattainment areas.
Current state law requires DNR to prepare plans for the prevention, abatement, and
control of air pollution in this state. The law requires that the plans submitted to
EPA for the control of ozone conform with the CAA, except that measures beyond
those required by the CAA may be included if they are necessary to comply with
requirements to show that the state will make reductions in the levels of ozone in
ozone nonattainment areas.
This bill specifies that when DNR prepares a state implementation plan for a
pollutant for which EPA has established an NAAQS, DNR may only include
provisions that are necessary to obtain EPA approval of the plan, including
provisions that are necessary to comply with requirements to show that the state will
make reductions in the levels of that pollutant in the state's nonattainment areas.
The bill requires that, at least 90 days before DNR is required to submit a state
implementation plan to EPA, DNR submit a report to the Joint Committee for
Review of Administrative Rules (JCRAR) that describes the proposed plan and
contains supporting documents for the plan. The bill gives JCRAR 30 days to review
the report. If, within that time, JCRAR returns the report to DNR with a written
explanation of why the committee is returning the report, DNR may not submit the
state implementation plan to EPA until JCRAR agrees that DNR has adequately
addressed the issues raised by JCRAR.
Current law authorizes DNR to identify nonattainment areas based on
procedures and criteria that it establishes.
This bill prohibits DNR from identifying a county as part of a nonattainment
area if the level of an air pollutant in the county does not exceed an ambient air
quality standard, unless the CAA requires the county to be so designated. The bill
requires that, at least 90 days before this state is required to provide a submission
to EPA identifying an area as a nonattainment area, DNR submit a report to JCRAR
that describes the area and contains supporting documents. The bill gives JCRAR
30 days to review the report. If, within that time, JCRAR returns the report to DNR
with a written explanation of why the committee is returning the report, DNR may
not provide the submission to EPA until JCRAR agrees that DNR has adequately
addressed the issues JCRAR has raised.
When EPA replaced an NAAQS based on the concentration of particulate
matter in the atmosphere measured as total suspended particulates with standards
based on the size of particulate matter, DNR retained the state emission standard
based on total suspended particulates and also adopted the federal standards based
on the size of the particulate matter.
The bill prohibits DNR from designating an area as a nonattainment area
based on the concentration of particulate matter in the atmosphere measured as
total suspended particulates and requires DNR to end the designation of an area as
a nonattainment area if the designation was based on the concentration of
particulate matter in the atmosphere measured as total suspended particulates.
New source review
Under the CAA, a person must obtain a construction permit before beginning
the construction of a stationary source of air pollution that meets certain criteria.
These sources are generally called major sources. The CAA also requires a person
to obtain a construction permit before making changes to a major source if the
changes amount to what the CAA calls "modifications." If a source is required to
obtain a construction permit, the CAA imposes air pollution control requirements
that are more stringent than those imposed on sources that are not required to obtain
a construction permit, including those to which changes are made that do not amount
to modifications. The part of the CAA that contains these provisions is often referred
to as new source review.
Recently, EPA has promulgated regulations that revise the way in which it is
determined under federal law whether changes to a major source are considered to
be modifications, thus revising the situations in which major sources must obtain
construction permits and implement more stringent pollution controls. States are
not required to use the federal approach to determining whether changes are
considered to be modifications, as long as their new source review provisions are at
least as stringent as the federal new source review provisions.
This bill requires DNR to promulgate rules incorporating the recent revisions
that EPA made in its regulations for determining whether changes to a major source
amount to modifications and any future revisions that EPA makes. The bill requires
DNR to make similar revisions to its rules for sources that are not covered by the CAA
(minor sources) if the revisions reduce administrative requirements.
Permit requirements
The CAA requires states to require operation permits for major sources of air
pollution and construction permits for the construction or modification of major
sources of air pollution. Current state law generally requires operation permits for
all stationary sources of air pollution and construction permits for the construction
or modification of all stationary sources of air pollution.
Current state law authorizes DNR to promulgate rules exempting types of
sources from the requirements to obtain permits if the potential emissions from the
sources do not present a significant hazard to public health, safety, or welfare or to
the environment. This bill requires DNR to promulgate rules exempting minor
sources from the requirement to obtain a construction permit and an operation
permit if emissions from the sources do not present a significant hazard to public
health, safety, or welfare or to the environment.
This bill specifically exempts an agricultural source from the requirement to
obtain a construction permit and an operation permit, unless the CAA requires
permits for the source. The bill exempts from the construction permit requirement
a source that is a component of a process, of equipment, or of an activity that is
otherwise covered by a preexisting operation permit.
Current state law authorizes DNR to promulgate rules specifying types of
sources that may obtain general construction permits and general operation
permits, which may cover numerous similar sources. This bill requires DNR to
promulgate rules for the issuance of general permits for similar stationary sources.
The bill requires that within 15 days of receiving an application for coverage under
a general permit DNR either notify the applicant whether the source qualifies for
coverage or tell the applicant what additional information DNR needs to determine
whether the source qualifies for coverage. The bill specifies that a person is not
required to obtain a construction permit or to apply for coverage under a general
permit before beginning to construct or modify a source that qualifies for a general
permit, unless the CAA requires a construction permit for the source. The bill limits
DNR's ability to specify expiration dates for coverage under general permits. The bill
also eliminates DNR's authority to promulgate rules providing for general
construction permits.
The bill requires DNR to promulgate rules, which must be consistent with the
CAA, providing a simplified process under which DNR issues a registration permit
for a stationary source with low actual emissions. The bill requires that within 15
days of receiving an application for a registration permit DNR either grant or deny
the registration permit or tell the applicant what additional information DNR needs
to determine whether the source qualifies for a registration permit.
The bill requires DNR to grant a waiver from the requirement to obtain a
construction permit for the construction or modification of a stationary source upon
a showing by the owner or operator of the source that obtaining the permit would
cause undue hardship, unless the CAA requires the owner or operator to obtain a
construction permit. DNR must act on a waiver request within 15 days of its receipt.
The bill requires DNR to continually assess air pollution permit obligations and
implement measures, consistent with the CAA, to lessen those obligations, including
consolidating permits for sources at a facility into one permit, expanding permit
exemptions, and expanding the availability of registration permits, general permits,
and construction permit waivers. The bill also requires DNR to take those measures
in response to petitions.
Permitting process
Current state law specifies a process for DNR review of applications for
construction permits for stationary sources of air pollution. Under this process,
within 20 days after receiving an application for a construction permit, DNR must
notify the applicant of any additional information needed to process the application.
Once the additional information is received, DNR must complete an analysis of the
effect of the proposed new source (or modification to an existing source) on air quality
and a preliminary determination on the approvability of the application. DNR must
make this determination within 120 days of receiving the additional information
that it requested for a major source and within 30 days for a minor source.
This bill reduces those periods to 60 days for a major source and 15 days for a
minor source. The bill also provides that if the additional information is not
requested (by DNR or by a certified contractor, as described below) within 20 days
after the application is received, additional information may be requested but the 60
and 15 day periods begin to run after the 20 days are up.
The bill provides that an application for an air pollution construction permit
may be made to a private contractor certified by DOA. The certified contractor
performs the determination of whether additional information is needed to process
the application, the analysis of the effect of the proposed new source (or modification
to an existing source) on air quality, and the preliminary determination on the
approvability of the application. The bill requires DOA, in consultation with DNR,
to specify minimum standards relating to staffing and professional expertise and
other conditions applicable to certified contractors.
Current law requires DNR to distribute the analysis and preliminary
determination for a construction permit application and to publish a newspaper
notice announcing the opportunity for public comment and a public hearing on an
application for a construction permit. The bill requires DNR to publish the
newspaper notice within ten days after DNR prepares the analysis and preliminary
determination for a construction permit application or, if a certified contractor
prepares them, within ten days after DNR receives them from the certified
contractor.
Current law requires DNR to receive public comments on a construction permit
application for 30 days after publishing the newspaper notice. DNR is authorized
to hold a public hearing if requested by a person, an affected state, or EPA within 30
days after publishing the newspaper notice and is required to hold a public hearing
if there is significant public interest in holding a hearing. The department must hold
the hearing within 60 days after the end of the public comment period.
The bill specifies that DNR may hold a hearing if requested by a person who
may be directly aggrieved by the issuance of the permit or by an affected state or EPA.
It also requires that the hearing be held within 30, rather than 60, days after the end
of the public comment period.
Current law requires DNR to act on a construction permit application within
60 days after the close of the public comment period or the public hearing, whichever
is later, unless compliance with environmental impact statement requirements
requires a longer time. This bill requires DNR to act within 60 days after it publishes
the newspaper notice (30 days after the close of the public comment period), unless
compliance with environmental impact statement requirements requires a longer
time. The bill authorizes DNR to extend any time limit applicable to it or a certified
contractor under this process at the request of an applicant for a permit.
Under the bill, if DNR does not act on an application within the required time
limit, it must include in a report the reasons for the delay in acting on the application,
including the names of the department's employees responsible for review of the
application, and recommendations for how to avoid similar delays in the future.
DNR must make these reports available to the public, and submit the reports to
JCRAR on a quarterly basis.
The bill makes changes to the processing of applications for operation permits
that are similar to the changes it makes to the processing of construction permits,
including providing for the use of certified contractors. Under current law, DNR
must act on an application for an operation permit within 180 days after the
applicant submits to DNR the results of equipment testing and emission monitoring
required by the construction permit. This bill reduces that deadline to 30 days.
Under current law, a permittee must apply for the renewal of an operation
permit at least 12 months before the permit expires. This bill reduces that
requirement to six months.
Criteria for approval of permits
Under current state law, DNR may approve an application for a construction
permit or an operation permit if it finds that criteria specified in the law for the
stationary source are met. This bill provides that DNR may not modify a preliminary
determination of approvability made by a private contractor unless modification is
necessary to comply with the CAA or unless information received from the public, an
affected state, or EPA or an environmental impact statement provide clear and
convincing evidence that issuance of the permit would cause material harm to public
health, safety, or welfare.
Under current law, one of the criteria for approving a permit for the
construction or modification of a major source in a nonattainment area is a finding
by DNR, based on an analysis of alternatives, that the benefits of the construction
or modification significantly outweigh the environmental and social costs imposed
as a result of the construction or modification. This bill eliminates that criterion.
Continuation of operation
Under current law, if a person timely submits a complete application for an
operation permit and submits any additional information within the time set by
DNR, the stationary source may continue to operate even if DNR has not yet issued
the permit. Under this bill, if a person submits an application for renewal of an
operation permit before the date that the operation permit expires, the stationary
source may continue to operate, unless the CAA would prohibit continued operation.
Other provisions related to air quality management
Current law authorizes DNR to require owners and operators of sources of air
pollution to monitor emissions from those sources or to monitor air quality in the
areas of those sources. This bill prohibits DNR from including a monitoring
requirement in an operation permit if the applicant demonstrates that the cost of
compliance with the requirement would exceed the cost of compliance with
monitoring requirements imposed on similar sources by an adjacent state or if the
monitoring is not needed to provide assurance of compliance with requirements that
apply to the source, unless the CAA requires the monitoring.
Current law specifies that an air pollution permit or part of a permit issued by
DNR becomes effective unless the permit holder seeks a hearing on the permit or part
of a permit. The bill specifies that if a permit holder or applicant challenges part of
a permit, the remainder of the permit becomes effective and the permit holder or
applicant may begin the activity for which the permit was issued.
This bill requires DNR to report to the legislature proposals for lessening air
pollution permit obligations, including consolidating permits for sources at a facility
into one permit, expanding permit exemptions, and expanding the availability of
registration permits, general permits, and construction permit waivers and a
description of requirements in the CAA that limit DNR's ability to take those actions.
The bill also requires DNR to provide to JCRAR a description of provisions in this
state's CAA implementation plans that may not have been necessary to obtain EPA
approval and recommendations for removing those provisions from the state
implementation plans.
Navigable waters
This bill makes changes in the permitting, decision, notice, hearing, and court
procedures that apply to permits and contracts given by DNR in regulating
structures, deposits, and other activities that occur in or near navigable waterways
(waterway activities).
Permitting changes in general
With limited exemptions, under current law, an owner of waterfront property
(riparian owner) may not engage in a waterway activity unless the riparian owner
has first obtained a permit or contract from DNR that is specific to the waterway
activity (an individual approval) or unless the waterway activity is authorized under
a general permit issued by DNR.
This bill restructures the substantive requirements for individual permits,
general permits, and contracts for removing material from navigable waterways. It
also creates exemptions from both of these types of permits and from these contracts
for certain waterway activities. The types of permits that are affected by these new
general and individual permitting, contracting, and exemption provisions are
permits to place structures or deposit material (placement permits), permits to
construct or maintain bridges (bridge permits), permits to enlarge or connect
waterways or to grade or remove top soil from banks along navigable rivers and
streams (enlargement permits), permits to change the courses of streams and rivers
(stream course permits), and permits and contracts to remove material from beds of
navigable waterways (removal approvals).
General permits
Under current law, DNR may, but is not required to, issue general permits for
waterway activities that are covered by the abbreviated procedure described above
and for certain activities that require an enlargement permit. Under current law,
general permits may be issued in certain designated areas of the state for any
waterway activity that requires a general permit. The bill expands the use of general
permits by requiring DNR to issue statewide general permits for certain waterway
activities and to allow DNR to promulgate rules to specify additional waterway
activities that may be authorized under a general permit. The bill allows DNR to
impose certain construction and design requirements, location requirements, and
environmental restrictions on the general permits. Under current law, a person
seeking to conduct a waterway activity under a general permit must notify DNR not
less than 20 days before starting the activity. The bill requires this notification to
be in writing and and increases the 20 days to 30 days. If DNR does not act within
30 days of the notification, the waterway activity is considered to be authorized.
Placement permits
For placement permits, current law provides an abbreviated procedure for
reviewing applications. Under the procedure, DNR may approve or disapprove the
permit application without giving notice or conducing a hearing. Types of permit
applications to which this abbreviated procedure applies include applications to
place sand to improve recreational use and applications to place devices to improve
fish habitat.
This bill repeals this abbreviated review procedure. Instead, under the bill the
general permitting process applies to most of the waterway activities that are subject
to the abbreviated procedure.
The bill also exempts certain waterway activities from both general and
individual placement permits if they do not interfere with the rights of other riparian
owners and if they are located outside an area of special natural resource interest
(exempt waterway activities). Under current law, some of these activities are subject
to the abbreviated procedure and some must meet notice and hearing requirements
before being issued. The bill defines an area of "special natural resource interest"
to be a state natural area or an area identified by DNR as possessing scientific value
or as being an outstanding or exceptional resource water. Examples of such waters
include wild and scenic rivers and certain trout streams. If a waterway activity is
not an exempt waterway activity, the individual permitting process applies unless
the waterway activity is covered by a general permit.
Whether a waterway activity is subject to the individual placement permit
process or the general placement permit process or is totally exempt from any type
of placement permit depends on the placement or deposit meeting certain size and
other criteria. Structures and deposits that are subject to these placement permit
provisions include deposits of sand, crushed rock, gravel, or riprap; boat shelters and
hoists; intake and outlet structures; piers; and wharves. Under current law, a
riparian owner may construct a pier or wharf beyond the ordinary high-water mark
or an established bulkhead line without a placement permit if the wharf or pier
meets certain criteria. This bill eliminates this exemption.
Under current law, DNR may, but is not required to, issue placement permits
for waterway activities that meet the requirements for the permit. Under the bill,
DNR must issue placement permits for activities that meet these requirements.
Enlargement permits
Under current law, a person must be issued an enlargement permit to do any
of the following:
1. Construct, dredge, or enlarge any artificial waterway in order to connect it
with an existing navigable waterway (connection permit requirement). The bill
limits this permit requirement to those artificial waterways that are already
connected to the navigable waterway or that will connect with the navigable
waterway upon completion of the construction.
2. Connect an artificial or natural waterway, whether or not navigable, with
an existing navigable waterway. The bill repeals this provision.
3. Construct, dredge, or enlarge any part of an artificial waterway that is
located within 500 feet of an existing navigable stream (500-foot permit
requirement).
4. Grade or remove top soil from the bank of a navigable waterway if the
exposed area will exceed 10,000 square feet (grading permit requirement).
The bill creates an exemption from the 500-foot permit requirement, if the
artificial waterway's only surface connection to a navigable waterway is an overflow
device and the construction, dredging, or enlargement is authorized by a storm water
discharge permit or a water sewerage and facility plan authorized by DNR (storm
water-sewerage projects).
The bill creates an exemption from the grading permit requirement if the
grading or removal of top soil is not located in an area of special natural resource
interest and is authorized by a storm water discharge permit, by a shoreland or
wetland zoning ordinance, or by a construction site erosion control plan.
The bill requires DNR to issue a general permit to meet the connection permit
requirement and the 500-foot permit requirement for construction, dredging, and
enlargements that are part of an approved storm water-sewerage project, but that
are not covered by the exemption described above. The bill requires DNR to issue
a general permit to meet the connection permit requirement and the 500-foot
requirement for construction, dredging, and enlargements that are designed to
enhance wildlife habitat or wetlands or that affect a body of water less than one acre
in size. The bill requires DNR to issue a general permit to meet the grading permit
requirement for any grading or removing of top soil that is not covered by the
exemption described above.
As to individual enlargement permits, the bill imposes the additional
requirement that the activity not be detrimental to the public interest.
Bridge permits
The bill makes the following changes to current permitting procedures for the
construction and maintenance of bridges:
1. Allows bridge construction and maintenance to be authorized by the
legislature.
2. Subjects bridges that cross navigable streams that are less than 35 feet wide
to the general permitting provisions. Under current law, such bridges are exempt
from the bridge permitting requirements.
3. Changes the permitting provisions to specifically cover the placement of
culverts.
4. Subjects culverts that have diameters of less than 60 inches to the general
permitting provisions.
5. Exempts culverts that have a diameter of less than 48 inches and that are
part of private roads or driveways from all of the bridge permitting requirements.
6. Repeals the requirement that the holder of a bridge permit construct and
maintain a bridge that is used by the public to be in a safe condition.
Stream course permits
