LRB-4434/1
MDK&EHS:all
2015 - 2016 LEGISLATURE
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
1An Act to repeal 196.372, 196.975, 285.41 (3) and 285.45 (3);
to renumber
2182.0175 (1) (bt);
to renumber and amend 30.025 (4), 182.0175 (3) (a) (title),
3182.0175 (3) (a) and 182.0175 (3) (b);
to amend 20.155 (1) (g), 30.206 (1) (ag)
42., 30.208 (3) (e), 66.0821 (5) (a), 66.0821 (5) (e) (intro.), 66.0821 (5) (e) 2.,
566.0821 (5) (e) 3., 66.0821 (5) (e) 4., 182.0175 (2) (am) (title), 182.0175 (2) (am)
67., 182.0175 (2) (bm) (title), 182.0175 (4), 182.0175 (5), 196.374 (3) (b) 2., 196.52
7(3) (d) 2., 200.59 (5) (d), 285.41 (4) (a), 285.41 (4) (a) 4., 285.41 (4) (c) and 285.41
8(4) (d);
to repeal and recreate 182.0175 (3) (title); and
to create 30.025 (4) (c),
966.0821 (5) (f), 182.0175 (1) (ab), 182.0175 (1) (ac), 182.0175 (1) (ad), 182.0175
10(1) (ag), 182.0175 (1) (bq), 182.0175 (1) (br), 182.0175 (1) (bx), 182.0175 (1m) (d)
118. to 12., 182.0175 (3) (am), 182.0175 (3) (c), 182.0175 (3) (d) 2., 182.0175 (3) (e),
12182.0175 (3) (f), 182.0175 (3) (g), 196.85 (1m) (e) and 196.85 (1m) (f) of the
13statutes;
relating to: one-call system violations; sulfur dioxide compliance
14plans; assessment authority of the Public Service Commission; funding for
1statewide energy efficiency and renewable resource programs; public utility
2contracts with affiliated interests; local access and transport areas for
3telephone service; railroad telecommunications service; Department of
4Natural Resources permit application procedures related to the construction of
5a high-voltage transmission line; navigable water general permits and
6individual permits related to utility facilities; granting rule-making authority;
7and 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
1Section
1. 20.155 (1) (g) of the statutes is amended to read:
SB654,8,32
20.155
(1) (g)
Utility regulation. The amounts in the schedule for the
3regulation of utilities. Ninety percent of all moneys received by the commission
4under s.
66.0821 (5) (f) 3., 196.85, 196.855, or 201.10 (3) shall be credited to this
1appropriation. Ninety percent of all receipts from the sale of miscellaneous printed
2reports and other copied material, the cost of which was originally paid under this
3paragraph, shall be credited to this appropriation.
SB654,2
4Section
2. 30.025 (4) of the statutes is renumbered 30.025 (4) (a) and amended
5to read: