The social and economic roots of judge-made air pollution policy in Wisconsin. Laitos, 58 MLR 465.
Cleaning the Air: Wisconsin's Air Quality Laws. Burke. Wis. Law. Aug. 1992.
GENERAL POWERS AND DUTIES
Air pollution control; department duties.
The department shall:
Promulgate rules implementing and consistent with this chapter and s. 299.15
Encourage voluntary cooperation by persons and affected groups to achieve the purposes of this chapter and s. 299.15
Encourage local units of government to handle air pollution problems within their respective jurisdictions and on a regional basis, and provide technical and consultative assistance for that purpose.
Collect and disseminate information and conduct educational and training programs relating to the purposes of this chapter and s. 299.15
Organize a comprehensive and integrated program to enhance the quality, management and protection of the state's air resources.
Prepare and develop one or more comprehensive plans for the prevention, abatement and control of air pollution in this state. The department thereafter shall be responsible for the revision and implementation of the plans. The rules or control strategies submitted to the federal environmental protection agency under the federal clean air act for control of atmospheric ozone shall conform with the federal clean air act unless, based on the recommendation of the natural resources board or the head of the department, as defined in s. 15.01 (8)
, of any other department, as defined in s. 15.01 (5)
, that promulgates a rule or establishes a control strategy, the governor determines that measures beyond those required by the federal clean air act meet any of the following criteria:
The measures are part of an interstate ozone control strategy implementation agreement under s. 285.15
signed by the governor of this state and of the state of Illinois.
The measures are necessary in order to comply with the percentage reductions specified in 42 USC 7511a
(b) (1) (A) or (c) (2) (B).
See also chs. NR 428
, Wis. adm. code.
Conduct or direct studies, investigations and research relating to air contamination and air pollution and their causes, effects, prevention, abatement and control and, by means of field studies and sampling, determine the degree of air contamination and air pollution throughout the state.
Consult, upon request, with any person proposing to construct, install, or otherwise acquire an air contaminant source, device or system for the control thereof, concerning the efficacy of such device or system, or the air pollution problem which may be related to the source, device or system. Nothing in any such consultation shall relieve any person from compliance with this chapter or rules pursuant thereto, or any other provision of law.
Prepare and adopt minimum standards for the emission of mercury compounds or metallic mercury into the air, consistent with s. 285.27 (2) (b)
Specify the best available control technology on an individual case-by-case basis considering energy, economic and environmental impacts and other costs related to the source.
Coordinate the reporting requirements under ss. 285.65
in order to minimize duplicative reporting requirements.
Prepare an annual report which states the total nitrogen oxide and sulfur dioxide emissions from all stationary sources in this state. This report may be combined with other reports published by the department.
If federal legislation is enacted that establishes sulfur dioxide or nitrogen oxide controls for the purpose of reducing acid deposition, prepare a report, in consultation with the public service commission, this state's electric utilities, industries and environmental groups, recommending ways to coordinate state law with federal law. The department, after holding a public hearing on the report, shall submit the report to the governor and the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3)
, within 6 months after the enactment of the federal legislation.
Promulgate by rule the actions or events which constitute the reconstruction of a major source.
Promulgate by rule the actions or events which constitute the shutdown of a facility.
Promulgate rules, consistent with but no more restrictive than the federal clean air act, that specify the amounts of emissions that result in a stationary source being classified as a major source and that may limit the classification of a major source to specified categories of stationary sources and to specific air contaminants.
Promulgate rules, consistent with the federal clean air act, that modify the meaning of the term “modification" as it relates to specified categories of stationary sources, to specific air contaminants and to amounts of emissions or increases in emissions.
Adopt and apply objective performance measurements, for the subunit of the department that administers this chapter, relating to the issuance of permits under subch. VII
and to overall performance of the subunit.
Annually, contact the owners or operators of stationary sources that have operation permits under s. 285.60
and that are not required to have operation permits under the federal clean air act to inform the owners and operators of the benefits of obtaining a registration permit or an exemption under s. 285.60
Cross-reference: See also NR 400-, Wis. adm. code.
Air pollution control; department powers.
The department may:
Hold hearings relating to any aspect of the administration of this chapter and s. 299.15
and, in connection therewith, compel the attendance of witnesses and the production of evidence.
Issue orders to effectuate the purposes of this chapter and s. 299.15
and enforce the same by all appropriate administrative and judicial proceedings.
Secure necessary scientific, technical, administrative and operational services, including laboratory facilities, by contract or otherwise.
Make a continuing study of the effects of the emission of air contaminants from motor vehicles on the quality of the outdoor atmosphere and make recommendations to appropriate public and private bodies with respect thereto.
Advise, consult, contract and cooperate with other agencies of the state, local governments, industries, other states, interstate or interlocal agencies, and the federal government, and with interested persons or groups.
Examine any records relating to emissions which cause or contribute to air contamination.
Establish by rule, consistent with the federal clean air act, the amount of offsetting emissions reductions required under s. 285.63 (2) (a)
History: 1995 a. 227
Cross-reference: See also NR 400-, Wis. adm. code.
State implementation plans. 285.14(1)(1)
The department may not submit a control measure or strategy that imposes or may result in regulatory requirements to the federal environmental protection agency for inclusion in a state implementation plan under 42 USC 7410
unless the department has promulgated the control measure or strategy as a rule.
(2) Review by standing committees.
At least 60 days before the department is required to submit a state implementation plan to the federal environmental protection agency, the department shall prepare, and provide to the standing committees of the legislature with jurisdiction over environmental matters, under s. 13.172 (3)
a report that describes the proposed plan and contains all of the supporting documents that the department intends to submit with the plan. The department shall also submit to the legislative reference bureau for publication in the administrative register a notice of availability of the report. If, within 30 days after the department provides the report, the chairperson of a standing committee to which the report was provided submits written comments on the report to the department, the secretary shall respond to the chairperson in writing within 15 days of receipt of the comments. This subsection does not apply to a modification to a state implementation plan relating to an individual source.
History: 2003 a. 118
; 2007 a. 20
After May 14, 1992, the governor may enter into an agreement with the governor of the state of Illinois, that may also include the governors of the states of Indiana and Michigan, that specifies measures for the control of atmospheric ozone that are necessary in order to implement an interstate ozone control strategy to bring an area designated under 42 USC 7407
as an ozone nonattainment area into attainment with the ambient air quality standard for ozone if the area includes portions of this state and the state of Illinois.
History: 1995 a. 227
See also s. NR 1.50
, Wis. adm. code.
Classification, reporting, monitoring, and record keeping. 285.17(1)(a)
The department, by rule, shall classify air contaminant sources which may cause or contribute to air pollution, according to levels and types of emissions and other characteristics which relate to air pollution, and may require reporting for any such class. Classifications made pursuant to this section may be for application to the state as a whole or to any designated area of the state, and shall be made with special reference to effects on health, economic and social factors, and physical effects on property.
Any person operating or responsible for the operation of air contaminant sources of any class for which the rules of the department require reporting shall make reports containing such information as the department requires concerning location, size and heights of contaminant outlets, processes employed, fuels used and the nature and time periods of duration of emissions, and such other information as is relevant to air pollution and available or reasonably capable of being assembled.
The department may, by rule or in an operation permit, require the owner or operator of an air contaminant source to monitor the emissions of the air contaminant source or to monitor the ambient air in the vicinity of the air contaminant source and to report the results of the monitoring to the department. The department may specify methods for conducting the monitoring and for analyzing the results of the monitoring. The department shall require the owner or operator of a major source to report the results of any required monitoring of emissions from the major source to the department no less often than every 6 months.
Before issuing an operation permit that contains a monitoring requirement relating to the emissions from an air contaminant source, the department shall notify the applicant of the proposed monitoring requirement and give the applicant the opportunity to demonstrate to the administrator of the division of the department that administers this chapter that the proposed monitoring requirement is unreasonable considering, among other factors, monitoring requirements imposed on similar air contaminant sources. If the administrator determines that the monitoring requirement is unreasonable, the department may not impose the monitoring requirement. If the administrator determines that the monitoring requirement is reasonable, the applicant may obtain a review of that determination by the secretary. The secretary may not delegate this function to another person. If the secretary determines that the monitoring requirement is unreasonable, the department may not impose the monitoring requirement.
The department may not post on the Internet any information that is required to be reported to the department under this chapter and that relates to a facility's air emissions, including the nature and duration of specific emissions of an air contaminant source and any results of monitoring the emissions of a contaminant source or the ambient air in the vicinity of a contaminant source, unless the department certifies that the information is accurate on the date on which the information is posted.
The department shall evaluate the reporting, monitoring, and record-keeping requirements it imposes, as of July 2, 2013, on owners and operators of stationary sources that are required to have operation permits under s. 285.60
but that are not required to have operation permits under the federal clean air act. The department shall promulgate rules that simplify, reduce, and make more efficient those requirements, consistent with any applicable requirements under the federal clean air act.
Cross-reference: See also NR 400-, Wis. adm. code.
Any duly authorized officer, employee or representative of the department may enter and inspect any property, premises or place on or at which an air contaminant source is located or is being constructed or installed at any reasonable time for the purpose of ascertaining the state of compliance with this chapter and s. 299.15
and rules promulgated or permits issued under this chapter or s. 299.15
. No person may refuse entry or access to any authorized representative of the department who requests entry for purposes of inspection, and who presents appropriate credentials. No person may obstruct, hamper or interfere with any such inspection. The department, if requested, shall furnish to the owner or operator of the premises a report setting forth all facts found which relate to compliance status.
See also ch. NR 439
, Wis. adm. code.
AIR QUALITY STANDARDS, PERFORMANCE
STANDARDS; EMISSION LIMITS AND
Ambient air quality standards and increments. 285.21(1)(a)
Similar to federal standard.
If an ambient air quality standard is promulgated under section 109 of the federal clean air act, the department shall promulgate by rule a similar standard but this standard may not be more restrictive than the federal standard except as provided under sub. (4)
Standard to protect health or welfare.
If an ambient air quality standard for any air contaminant is not promulgated under section 109 of the federal clean air act, the department may promulgate an ambient air quality standard if the department finds that the standard is needed to provide adequate protection for public health or welfare. The department may not make this finding for an air contaminant unless the finding is supported with written documentation that includes all of the following:
A public health risk assessment that characterizes the types of stationary sources in this state that are known to emit the air contaminant and the population groups that are potentially at risk from the emissions.
An analysis showing that members of population groups are subjected to levels of the air contaminant that are above recognized environmental health standards or will be subjected to those levels if the department fails to promulgate the proposed ambient air quality standard.
An evaluation of options for managing the risks caused by the air contaminant considering risks, costs, economic impacts, feasibility, energy, safety, and other relevant factors, and a finding that the proposed ambient air quality standard reduces risks in the most cost-effective manner practicable.
A comparison of the proposed ambient air quality standard with ambient air quality standards in Illinois, Indiana, Michigan, Minnesota, and Ohio.
(2) Ambient air increment.
The department shall promulgate by rule ambient air increments for various air contaminants in attainment areas. The ambient air increments shall be consistent with and not more restrictive, either in terms of the concentration or the contaminants to which they apply, than ambient air increments under the federal clean air act except as provided under sub. (4)
(3) Cause or exacerbation of ambient air quality standard or increment.
The department shall promulgate rules to define what constitutes the cause or exacerbation of a violation of an ambient air quality standard or ambient air increment.
(4) Impact of change in federal standards.
If the ambient air increment or the ambient air quality standards in effect on April 30, 1980, under the federal clean air act are modified, the department shall alter the corresponding state standards unless it finds that the modified standards would not provide adequate protection for public health and welfare. The department may not make this finding for an ambient air quality standard unless the finding is supported with the written documentation required under sub. (1) (b) 1.
See also ch. NR 404
, Wis. adm. code.
The promulgation of emission standards is discussed. Wisconsin Hospital Association v. Natural Resources Board, 156 Wis. 2d 688
, 457 N.W.2d 879
(Ct. App. 1990).
Identification of nonattainment areas. 285.23(1)(1)
Procedures and criteria.
The department shall promulgate by rule procedures and criteria to identify a nonattainment area and to reclassify a nonattainment area as an attainment area. After February 6, 2004, the department may not identify a county as part of a nonattainment area under the federal clean air act if the concentration of an air contaminant in the atmosphere in that county does not exceed an ambient air quality standard, unless under the federal clean air act the county is required to be designated as part of a nonattainment area.
The department shall issue documents from time to time which define or list specific nonattainment areas or recommend that areas be designated as nonattainment areas under the federal clean air act based upon the procedures and criteria promulgated under sub. (1)
. Notwithstanding ss. 227.01 (13)
and 227.10 (1)
, documents issued under this subsection are not rules.
For any document issued under sub. (2)
, the department shall hold a public hearing and follow the procedures in this subsection.
The department shall give notice of the public hearing, and shall take any steps it deems necessary to convey effective notice to persons who are likely to have an interest in the proposed document. The notice shall be given at least 30 days prior to the date set for the hearing. The notice shall include a statement of the time and place at which the hearing is to be held and either a text of the proposed document or a description of how a copy of the document may be obtained from the department at no charge.
The department shall hold a public hearing at the time and place designated in the notice of hearing, and shall afford all interested persons or their representatives an opportunity to present facts, views or arguments relative to the proposal under consideration. The presiding officer may limit oral presentations if it appears that the length of the hearing otherwise would be unduly increased by reason of repetition. The department shall afford each interested person opportunity to present facts, views or arguments in writing whether or not he or she has had an opportunity to present them orally.
At the beginning of each hearing the department shall present a summary of the factual information on which the document is based. The department or its duly authorized representative may administer oaths or affirmations and may continue or postpone the hearing to such time and place as it determines. The department shall keep minutes or a record of the hearing in such manner as it determines to be desirable and feasible.
The department shall receive written comments on the document for at least 10 days after the close of the hearing. The department may not issue documents under this section earlier than 30 days after the close of the hearing.
(6) Report to standing committees.
Before the department issues documents under sub. (2)
and at least 60 days before the governor is required to make a submission on a nonattainment designation under 42 USC 7407
(d) (1) (A), the department shall prepare, and provide to the standing committees of the legislature with jurisdiction over environmental matters under s. 13.172 (3)
, a report that contains a description of any area proposed to be identified as a nonattainment area and supporting documentation. The department shall also submit to the legislative reference bureau for publication in the administrative register a notice of availability of the report. If, within 30 days after the department submits the report, the chairperson of a standing committee to which the report was provided submits written comments on the report to the department, the secretary shall respond to the chairperson in writing within 15 days of receipt of the comments.
See also ch. NR 401
, Wis. adm. code.