SB654: Bill Text

LRB-4434/1

MDK&EHS:all

2015 - 2016 LEGISLATURE

2015 Senate BILL 654

February 1, 2016 - Introduced by Senators Roth, Olsen, Gudex and Marklein, cosponsored by Representatives Kuglitsch, Ballweg, Knodl, Kulp, Macco, A. Ott, Petersen, Petryk, Ripp, Steffen and Tauchen. Referred to Joint Committee on Finance.

SB654,2,7 An Act to repeal 196.372, 196.975, 285.41 (3) and 285.45 (3); to renumber 182.0175 (1) (bt); to renumber and amend 30.025 (4), 182.0175 (3) (a) (title), 182.0175 (3) (a) and 182.0175 (3) (b); to amend 20.155 (1) (g), 30.206 (1) (ag) 2., 30.208 (3) (e), 66.0821 (5) (a), 66.0821 (5) (e) (intro.), 66.0821 (5) (e) 2., 66.0821 (5) (e) 3., 66.0821 (5) (e) 4., 182.0175 (2) (am) (title), 182.0175 (2) (am) 7., 182.0175 (2) (bm) (title), 182.0175 (4), 182.0175 (5), 196.374 (3) (b) 2., 196.52 (3) (d) 2., 200.59 (5) (d), 285.41 (4) (a), 285.41 (4) (a) 4., 285.41 (4) (c) and 285.41 (4) (d); to repeal and recreate 182.0175 (3) (title); and to create 30.025 (4) (c), 66.0821 (5) (f), 182.0175 (1) (ab), 182.0175 (1) (ac), 182.0175 (1) (ad), 182.0175 (1) (ag), 182.0175 (1) (bq), 182.0175 (1) (br), 182.0175 (1) (bx), 182.0175 (1m) (d) 8. to 12., 182.0175 (3) (am), 182.0175 (3) (c), 182.0175 (3) (d) 2., 182.0175 (3) (e), 182.0175 (3) (f), 182.0175 (3) (g), 196.85 (1m) (e) and 196.85 (1m) (f) of the statutes; relating to: one-call system violations; sulfur dioxide compliance plans; assessment authority of the Public Service Commission; funding for statewide energy efficiency and renewable resource programs; public utility contracts with affiliated interests; local access and transport areas for telephone service; railroad telecommunications service; Department of Natural Resources permit application procedures related to the construction of a high-voltage transmission line; navigable water general permits and individual permits related to utility facilities; granting rule-making authority; and making an appropriation.

Analysis by the Legislative Reference Bureau

This bill makes changes to certain Department of Natural Resources (DNR) procedures used on applications for permits related to certain utility facilities. The bill also makes changes to the enforcement of digger's hotline requirements, including allowing the Public Service Commission (PSC) to directly assess forfeitures. The bill also eliminates the PSC's role regarding sulfur dioxide compliance plans, and makes changes regarding the PSC's assessment authority, funding for Focus on Energy programs, public utility contracts with affiliated interests, telecommunications local access and transport area boundaries, and railroad telecommunications.

DNR permits

This bill allows for an extended deadline for DNR action on an application for a permit relating to the construction of a high-voltage transmission line. Currently, a utility that wishes to construct a high-voltage transmission line must submit a single application to DNR requesting all of the DNR permits that the utility is required to obtain for the project. DNR must grant or deny the application within 30 days of the date on which the PSC issues a decision on the project. Under this bill, upon agreement between DNR and the utility, DNR must grant or deny the application within 45 days after DNR has received all of the information necessary for it to make that decision regardless of whether the PSC has issued its decision.

This bill prohibits DNR from requiring the relocation of a utility facility as a condition of a general permit to conduct an activity in navigable waters or as part of a modification granted for an individual permit if the activity sought to be permitted is necessary in order to maintain or repair the facility. General permits apply statewide and authorize certain activities to be conducted in navigable waters as long as a person notifies DNR of the proposed activity and DNR does not, within 30 days, request additional information or notify the person that an individual permit will be required.

Digger's hotline enforcement

Current law generally requires owners of transmission facilities, which include pipes, pipelines, wires, cables, ducts, and associated facilities, to establish or designate a nonprofit organization to operate a statewide communication system for receiving excavation notices and transmitting information to transmission facility owners affected by the notices. Current law requires excavators to provide advance notice to the system and comply with other requirements regarding excavations. Transmission facility owners must take certain actions in response to the notices, including marking their facilities. The statewide communication system is called the "one-call system," and current law generally requires transmission facility owners to be members of the system and pay membership fees. The notice and other requirements are commonly referred to as digger's hotline requirements. Current law exempts from the requirements transmission facilities on private property that do not cross public rights-of-way. Current law allows a court to require a person who willfully and knowingly violates the digger's hotline requirements to pay a forfeiture of $2,000 for each violation.

The bill creates a procedure for handling complaints regarding violations of digger's hotline requirements and allowing the PSC to directly assess forfeitures for violations, instead of a court. The bill requires the one-call system to appoint a panel of seven to nine members to receive complaints filed by a person (complainant) that another person (respondent) has violated or aided in the violation of the digger's hotline requirements. A complaint may not be dismissed solely due to absence of direct damage to the complainant. However, a complaint may not be filed after 120 days after a person discovers an alleged violation, except that the panel may, for good cause, allow filing no later than one year after discovery. Upon receiving a complaint, the panel must provide a notice by certified mail to the respondent that requires the respondent to file a response within 20 days, except that the panel may extend that deadline upon request. In the response, the respondent must admit or deny the alleged violation or advise the panel that the complainant has agreed to dismiss the complaint based on the respondent's satisfaction of the complaint.

Within 20 days after a respondent files a response, the panel must determine by majority vote whether there is probable cause to believe that the respondent committed the violation or whether to dismiss the complaint. The bill specifies other deadlines for the panel's determination if a respondent fails to file a timely response. If the panel determines there is probable cause, the panel must provide notice to the PSC, unless the one-call system allows the respondent to attend an educational course that is produced and administered as provided by the one-call system. If the respondent agrees to attend the educational course, the respondent must pay a fee to the one-call system before completing the course. The fee must recover a portion of the cost of producing the course, as well as the direct cost of administering the course for the respondent. The notice described above that the panel provides to a respondent must advise the respondent of the amount of the fee.

If the one-call system does not allow the respondent to attend the educational course, the panel must provide notice of probable violation to the PSC. The notice must include the panel's recommendation, by majority vote, regarding the amount of the forfeiture the PSC should directly assess against the respondent for the violation. The bill specifies factors for the panel to consider in making the recommendation. Upon receiving the notice from the panel, the PSC must provide its own notice of probable violation to the respondent. The bill allows the PSC to include certain items in the notice, including any forfeiture amount recommended by the panel, as well as a statement that the PSC may require the respondent to attend the educational course described above in lieu of, or in addition to, paying a forfeiture.

Within 30 days after the respondent receives the PSC's notice, the respondent must respond by either submitting written explanations, a statement of general denial, or other materials contesting the alleged violation, or by submitting a signed admission that the respondent committed the violation. The bill also allows a respondent to execute a consent agreement with the PSC for dismissing the complaint. The consent agreement may assess a forfeiture, require attendance at the educational course described above, or do both. If the respondent does not execute a consent agreement with the PSC, the bill allows the PSC to issue an order assessing a forfeiture, requiring attendance at the educational course, or doing both. However, the PSC may issue the order no sooner than 30 days after the PSC serves its notice of probable violation on the respondent. Also, if the respondent does not enter into a consent agreement with the PSC, and fails to respond within 30 days after receiving the PSC's notice of probable violation, the bill provides that, unless good cause is shown, the failure to respond constitutes an admission that the respondent committed the violation that is the subject of the notice. The bill allows the admission to be used against the respondent in any future proceeding.

As noted above, the bill allows the PSC to directly assess a forfeiture against a respondent in a consent agreement or, if a consent agreement is not executed, an order. The bill allows the PSC to assess a forfeiture of no more than $2,000 for each violation of the digger's hotline requirements, with each day of continued violation constituting a separate violation. The bill provides that no other forfeiture may be imposed for violating the digger's hotline requirements. As a result, unlike current law, a court may not impose a forfeiture. Like other forfeitures under current law, the forfeitures are deposited in the school fund. If the PSC assesses a forfeiture, the PSC must also require the respondent to pay a surcharge equal to 10 percent of the forfeiture to the one-call system. If the forfeiture is reduced on appeal, the surcharge must be proportionately reduced.

The bill gives various powers and duties to the one-call system. The bill requires the one-call system to deposit educational course fees and surcharges in a fund called the damage prevention fund that is established and maintained by the one-call system. The bill allows the one-call system to use the damage prevention fund at its discretion to pay for the costs of the educational course or provide for public outreach and underground utility damage prevention awareness programs. Also, the bill allows the one-call system to establish policies, procedures, and forms for complaints made to the panel.

The bill makes other changes, including the following:

1. If the PSC delegates its powers and duties under the bill to an employee, the bill allows for PSC review of the employee's orders.

2. The bill provides that any recommendation, order, or other action of the panel, one-call system, or PSC is presumed valid and provides that a person claiming invalidity has the burden to plead and prove facts establishing invalidity.

3. If the PSC executes a consent agreement or issues an order against a respondent, the bill allows the PSC to assess the respondent for the PSC's expenses.

4. The bill requires excavators to promptly make a report to the 911 emergency telephone number upon discovering that flammable, toxic, or corrosive gas or liquid that may endanger life, cause bodily harm, or result in damage to property has escaped from damaged transmission facilities.

Sulfur dioxide compliance plans

The bill eliminates the requirement that major energy utilities submit an annual plan for complying with sulfur dioxide emission rates to the PSC and the Department of Natural Resources (DNR) and the requirement for DNR to review and approve or disapprove those plans.

In addition, this bill eliminates the requirement that DNR make certain determinations and recommendations regarding the goals for sulfur dioxide emissions from major utilities and other large sources. Under current law, if DNR determines that the total annual sulfur dioxide emissions from major utilities and other large sources exceeded the state's emission goals for the previous year, or if DNR projects that emissions will exceed those goals in any of the three succeeding years, and if DNR determines that the excess emissions are attributable to major utilities or other large sources, DNR must, after consulting with the PSC and holding a public hearing, prepare a recommendation to the legislature as to whether the emission goals should be replaced with enforceable limits.

This bill also eliminates the requirement that a major utility submit a request for a variance from sulfur dioxide emission rates to PSC and for PSC to determine whether a condition exists for granting a variance. Under the bill, a variance request must be submitted to DNR, as required under current law. The bill also requires DNR to determine whether a variance condition exists.

PSC assessments

The bill makes changes to the PSC's authority to assess its regulatory expenses against persons who are subject to the PSC's jurisdiction.

Current law allows the PSC to directly assess a public utility, power district, or sewerage system for the expenses the PSC incurs in proceedings involving those entities. For other types of entities, current law allows the PSC to directly assess an entity only for proceedings that are specified under current law. Although the PSC conducts proceedings to determine whether certain oil pipeline companies have condemnation authority, current law does not allow the PSC to directly assess those companies for its expenses for those proceedings. This bill allows the PSC to directly assess those companies for those proceedings.

In addition, current law allows septage disposers licensed by DNR to complain to the PSC that the septage disposal fees of a municipal sewerage and storm system (system) are unreasonable. If the PSC finds that the fees are unreasonable and that reasonable fees are 15 percent or more lower, current law requires the system to pay all of the PSC's expenses related to the complaint. If the PSC finds that the fees are reasonable, or finds they are unreasonable but that reasonable fees are less than 15 percent lower, current law requires the licensed septage disposer to pay the PSC's expenses. If the PSC terminates the proceeding before determining reasonableness, current law requires the system and licensed septage disposer to each pay 50 percent of the PSC's expenses, unless the parties agree to a different allocation. The bill gives the PSC the discretion to require a licensed septage disposer to pay the PSC's expenses under the foregoing circumstances. Under current law, licensed septage disposers must pay the PSC's expenses under those circumstances. The bill does not affect the duty of a system to pay the PSC's expenses if the PSC finds that fees are unreasonable and that reasonable fees are 15 percent or more lower.

Finally, current law allows other users of a system to complain to the PSC that the system's rates, rules, or practices are unreasonable or unjustly discriminatory, and allows revenue bond and debt holders to complain that the system's rates are inadequate. Current law requires the PSC to assess a system to pay the PSC's expenses in those proceedings. This bill also allows the PSC to assess the complainant. Under the bill, if the PSC determines that the rates, rules, or practices that are the subject of a complaint are not unreasonable, unjustly discriminatory, or inadequate, the PSC has the discretion to require the complainant to pay all or a portion of the expenses. If the PSC terminates the proceeding before making a final determination, the PSC has the discretion to require the system and complainant to each pay 50 percent of the expenses or a different allocation agreed to by the parties. A complainant who is billed for expenses must pay the bill within 30 days after the PSC mails the bill to the complainant.

Focus on Energy funding

This bill makes changes to the funding of statewide energy efficiency and renewable resources programs that current law requires investor-owned electric and natural gas utilities to collectively establish and fund. The programs are commonly referred to as the Focus on Energy programs. Current law requires the PSC to require those utilities to spend 1.2 percent of their annual operating revenues to fund the Focus on Energy and related programs. This bill changes that requirement so that the utilities must spend 1.2 percent of their annual operating revenues derived from retail sales on the programs.

Affiliated interest contracts

The bill allows the PSC to extend a deadline for considering certain applications for approval of public utility contracts with affiliated interests. Under current law, with certain exceptions, a public utility may not enter into a contract with an affiliated interest without the PSC's approval. Current law defines an "affiliated interest" of a public utility to include the following: 1) any person who has 5 percent or more of the voting securities of the public utility; 2) any officer or director of the public utility; 3) any subsidiary; and 4) any person that the PSC finds has substantial influence over the public utility. If the PSC holds a hearing on an application for approval, current law requires the PSC to take final action within 180 days after opening a docket on the application, except that the PSC chairperson may extend the deadline for an additional 180 days for good cause. If the PSC does not hold a hearing on an application, current law imposes a 90-day deadline on the PSC, but does not allow for an extension. If the PSC fails to meet a deadline, the PSC is considered to have approved the application.

This bill allows the chairperson of the PSC to extend the above 90-day deadline for an additional 90 days for good cause. If the PSC fails to meet the extended deadline, the bill provides that the PSC is considered to have approved the application.

Local access and transport areas

The bill eliminates statutory authority for filing a petition with the PSC requesting that the PSC petition a federal court to make changes to local access and transport areas (LATAs) for telephone service. LATAs were formed in 1984 upon the breakup of the Bell System pursuant to a federal antitrust action. At present, LATAs are used to define local toll calling areas.

Current law allows 150 or more consumers who reside in the same local exchange area to petition the PSC to petition the appropriate federal court to include their local exchange area in a different LATA. The consumers' petition must explain why the LATA that includes their local exchange area does not adequately reflect common social, economic, and other concerns. If a petition is filed, the PSC must hold a public hearing. After the hearing, if the PSC determines there is sufficient evidence supporting the consumers' petition, the PSC must, in cooperation with the affected telephone companies, petition the federal court to revise the LATA boundaries. This bill eliminates the authority for consumers to file the petition and the related requirements that apply to the PSC.

Railroad telecommunications

The bill eliminates the authority of the PSC regarding complaints about railroad telecommunications service. Current law authorizes the PSC to investigate complaints about telecommunications service with railroads and, upon making certain findings, make appropriate orders regarding the complaints. The bill eliminates that authority.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB654,1 Section 1. 20.155 (1) (g) of the statutes is amended to read:

SB654,8,3 20.155 (1) (g) Utility regulation. The amounts in the schedule for the regulation of utilities. Ninety percent of all moneys received by the commission under s. 66.0821 (5) (f) 3., 196.85, 196.855, or 201.10 (3) shall be credited to this appropriation. Ninety percent of all receipts from the sale of miscellaneous printed reports and other copied material, the cost of which was originally paid under this paragraph, shall be credited to this appropriation.

SB654,2 Section 2. 30.025 (4) of the statutes is renumbered 30.025 (4) (a) and amended to read:

SB654,8,8 30.025 (4) (a) The permit may be issued, or the authority to proceed under a permit may be granted, upon stated conditions deemed necessary to assure compliance with the criteria designated under sub. (3). The

SB654,8,11 (b) Except as provided in par. (c), the department shall grant or deny the application for a permit for the utility facility within 30 days of the date on which the commission issues its decision under s. 196.49 or 196.491 (3).

SB654,3 Section 3. 30.025 (4) (c) of the statutes is created to read:

SB654,8,18 30.025 (4) (c) Notwithstanding the deadline in par. (b), upon agreement between the department and a person who submits an application under s. 196.491 (3) for a permit to construct a high-voltage transmission line, the department shall grant or deny the application within 45 days after the department receives all of the information necessary for it to carry out its obligations under this subsection, as determined by the department.

SB654,4 Section 4. 30.206 (1) (ag) 2. of the statutes is amended to read:

SB654,9,2 30.206 (1) (ag) 2. Location requirements that ensure that the activity will not materially interfere with navigation or have an adverse impact on the riparian property rights of adjacent riparian owners, except that if the activity is necessary in order to maintain or repair a utility facility that is owned or operated by a public utility, as defined in s. 196.01 (5), or a cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, water, or power to its members only, the department may not impose a condition on the permit that requires the relocation of the facility.

SB654,5 Section 5. 30.208 (3) (e) of the statutes is amended to read:

SB654,9,13 30.208 (3) (e) Within 20 days after the period for public comment under sub. (4) (b) has ended or, if no public hearing is held, within 30 days of the 30-day comment period under sub. (4) (a), the department shall render a decision issuing, denying, or modifying the permit or approving or disapproving the contract that is the subject of the application submitted under sub. (1). If the application is to modify a permit to allow an activity necessary to maintain or repair a utility facility that is owned or operated by a public utility, as defined in s. 196.01 (5), or a cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, water, or power to its members only, the department may not modify the permit to require the relocation of the facility.

SB654,6 Section 6. 66.0821 (5) (a) of the statutes is amended to read:

SB654,9,25 66.0821 (5) (a) If a user of a service complains to the public service commission that rates, rules and practices are unreasonable or unjustly discriminatory, or if a holder of a mortgage or revenue bond or mortgage certificate or other evidence of debt, secured by a mortgage on the sewerage system or any part of the system or pledge of the income of sewerage service charges, complains that rates are inadequate, the public service commission shall investigate the complaint. If there appears to be sufficient cause for the complaint, the commission shall set the matter for a public hearing upon 10 days' notice to the complainant and the town, village or city. After the hearing, if the public service commission determines that the rates, rules or practices complained of are unreasonable or unjustly discriminatory, it shall determine and by order fix reasonable rates, rules and practices and may make any other order respecting the complaint that is just and reasonable, including, in the case of standby charges imposed under sub. (4) (c), an order that a municipality refund to the user any amount of the standby charges that have been collected if the user has filed a complaint with the public service commission not later than 60 days after receiving the original notice of charge or after receiving a notice of charge that relates to an increased standby charge. The proceedings under this paragraph are governed, to the extent applicable, by ss. 196.26 to 196.40. The Except as provided in pars. (e) and (f), the commission shall bill any expense of the commission attributable to a proceeding under this paragraph to the town, village or city under s. 196.85 (1).

SB654,7 Section 7. 66.0821 (5) (e) (intro.) of the statutes is amended to read:

SB654,10,15 66.0821 (5) (e) (intro.) Notwithstanding par. (a), the public service commission shall bill under s. 196.85 (1) any Any expense of the commission attributable to a proceeding under par. (a) that is initiated under s. 281.49 (11) (d) as follows is subject to the following:

SB654,8 Section 8. 66.0821 (5) (e) 2. of the statutes is amended to read:

SB654,10,24 66.0821 (5) (e) 2. If the commission determines in the proceeding that one or more of the septage disposal fees are unreasonable and determines and fixes by order reasonable fees that, when combined with any other applicable septage disposal fees, total an amount that is not at least 15 percent lower than the total amount of septage disposal fees established by the municipal sewage system for the quantity and type of septage specified in s. 281.49 (11) (b), the commission may require the licensed disposer that is a party to the dispute shall to pay the entire amount of the assessment.