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
Under current law, a person must be issued a stream course permit to change
or straighten the course of a stream or river. The bill requires DNR to issue a general
permit under which riparian owners may change or straighten the course of streams
or rivers if the change or straightening involves a relocation of less than a total of 500
feet or a relocation of a stream with an average flow of less than 2 cubic feet per
second. The bill also repeals an exemption for municipal or county lands in
Milwaukee County and a provision that states that compliance with a stream course
permit is a presumption of the exercise of due care. The bill also allows the
legislature to authorize the changing or straightening of stream or river courses.
Removal approvals
The bill makes the following changes to current provisions regarding removal
approvals:
1. Allows the removal of materials to be authorized by the legislature.
2. Limits the scope of the general requirement for a removal contract to natural
navigable lakes. Under current law, both natural and artificial lakes are subject to
this requirement.
3. Limits the scope of the general requirement for a removal permit to
navigable streams. Under current law, both navigable and nonnavigable streams
are subject to this requirement.
4. Exempts removals for certain specified amounts if the removals are not from
an area of natural resource interest, do not contain hazardous substances, and will
be placed in an upland area.
5. Requires DNR to issue general permits for other removals that are within
specified amounts.
Boathouses
Current law, with some exceptions, imposes a prohibition on placing a
boathouse beyond the ordinary high-water mark of a navigable waterway. This bill
creates an exemption for the construction, repair, or maintenance of a boathouse that
is in compliance with all individual or general permitting requirements, that is used
exclusively for commercial purposes, that is on land zoned exclusively for commercial
or industrial purposes or is in a brownfield or blighted area, and that is located in a
commercial harbor or on a tributary of Lake Michigan or Lake Superior. Current law
defines a "brownfield" to be an industrial or commercial facility, the expansion or
redevelopment of which is complicated by environmental contamination.
Notice, hearing, and decision provisions for individual permits
Under current law, for individual placement permits, bridge permits, removal
permits, stream course permits, and enlargement permits, DNR must order a public
hearing to be held within 60 days after receiving a complete application for the
permit or provide notice (notice of application) that DNR will proceed on the
application without a public hearing unless a substantive written objection is
received within 30 days after the notice is published. DNR must provide the notice
of application to various parties and to the applicant, who in turn must publish
notice. Current law defines a "substantive written objection" to be one that gives the
reasons why the issuance of the proposed permit will violate state law and that states
that the person objecting will appear at the public hearing to present information
supporting the objection. The applicant must publish the notice in a newspaper that
is likely to give notice in the area where the waterway activity will be located (area
newspaper).
If DNR does not receive a substantive written objection within the 30-day
period, DNR proceeds on the permit application. If DNR receives such an objection,
the public hearing must be held within 60 days after being ordered. At least 10 days
before the hearing, the Division of Hearings and Appeals in the Department of
Administration must mail a notice of the public hearing to the applicant, all of the
parties who received the notice of application, and anyone who submitted a
substantive written objection. The applicant again must publish the notice in an area
newspaper.
Under current law, DNR may also use this notice and hearing procedure when
it is not specifically required if DNR determines that substantial interests of any
party may be adversely affected by the granting of the permit.
Under the bill, DNR must provide notice of a complete application to interested
members of the public within 15 days after DNR determines that the application is
complete. DNR must provide a period for public comment after providing notice that
the application is complete. If no hearing is requested, the public comment period
ends in 30 days.
If a public hearing is requested, the comment period ends 10 days after the
conclusion of the hearing. The permit application may contain a request for a public
hearing or any other person may request a hearing. DNR may also decide on its own
to hold a hearing if it determines that there is a significant public interest in the
permit. A hearing request must be submitted to DNR within 30 days of the notice
that the application is complete. DNR must then provide notice within 15 days, and
the hearing must be held within 30 days of the notice being complete. DNR must
issue its decision within 30 days after the hearing.
If no hearing is to be held, then DNR must issue its decision within 30 days after
the close of the comment period.
The changes to the applicability of the hearing and notice procedures for
individual permits under the bill include the following:
1. The procedure applies to removal approvals and stream course permits, as
well as the permits covered under current law.
2. The procedure applies to permits to place water ski jumps, replacing the
procedures that apply to these permits under current law.
3. The bill repeals the authority that allowed DNR to use these notice and
hearing procedures when they were not required to do so in making determinations
that affected navigable waters and navigation.
4. The procedures specifically apply to applications for modifications of
individual permits.
Administrative and court review of DNR decisions on individual permits
Under current law, if a substantial interest of a person is injured by an agency
action and there is a dispute of material fact, that person has the right to an
administrative hearing before an impartial hearing officer. The notice
requirements, procedures, rules of evidence, records, and right to judicial review are
specified in detail under current law.
Under this bill, an applicant for or holder of an individual permit, or five or more
persons, may ask DNR for an administrative hearing regarding the issuance, denial,
or modification of an individual permit, or regarding a term or condition of an
individual permit. If DNR determines that the request for a hearing gives specific
reasons why the department's decision violates state law, DNR is required to hold an
administrative hearing. The bill requires that the hearing be conducted as a
contested case hearing and be subject to current law's administrative hearing
requirements regarding contested case hearings, including the procedures, rules of
evidence, records, and right to judicial review.
Instead of requesting an administrative hearing to review the DNR decision,
any person who has the right to request such a hearing may bring a court action to
review DNR's decision. The bill requires the court to review the evidence and
examine witnesses, rather than review the record of DNR's action. In addition, the
bill allows a party to the administrative hearing to stop an administrative hearing
and have the court take jurisdiction over the issues raised in the hearing. If an
administrative hearing is removed to a court, that court is required by the bill to
review the evidence and examine witnesses, independent of DNR's evidence review
and witness examination.
Strategic energy assessments
Current law requires the Public Service Commission (PSC) to prepare a
strategic energy assessment every two years that evaluates the adequacy and
reliability of the state's electricity supplies. An assessment must describe, among
other things, large electric generating facilities and high-voltage transmission lines
on which utilities plan to begin construction within three years. The bill requires an
assessment to describe large electric generating facilities and high-voltage
transmission lines on which utilities plan to begin construction within seven years,
rather than three years.
Partial deregulation of telecommunications services
Under current law, a person may petition the PSC to begin proceedings for
determining whether to partially deregulate certain telecommunications services.
The PSC may also begin such proceedings on its own motion. If the PSC makes
certain findings regarding competition for such telecommunications services, the
PSC may issue an order suspending specified provisions of law. Current law does not
impose any deadlines on such proceedings.
