LRBs0214/1
MDK&EHS:emw&ahe
2017 - 2018 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO SENATE BILL 475
January 4, 2018 - Offered by Senator LeMahieu.
SB475-SSA1,2,8
1An Act to repeal 196.025 (4), 196.025 (5), 196.192 (2) (am) and 201.10 (1);
to
2renumber 16.95 (12), 182.0175 (1) (bt) and 182.0175 (1) (bv);
to renumber
3and amend 16.955, 182.0175 (2) (am) 3., 182.0175 (3) (a) (title), 182.0175 (3)
4(a), 182.0175 (3) (b) and 196.192 (2) (bm);
to amend 26.03 (1v) (b), 101.80 (1g),
5182.0175 (2) (am) (title), 182.0175 (2) (am) 7., 182.0175 (2) (bm) (title), 182.0175
6(2m) (b) (intro.), 182.0175 (4), 182.0175 (5), 196.192 (2) (c), 196.192 (3m),
7196.193 (3), 196.49 (5g) (ag), 196.49 (5g) (ar) 2m. b., 196.49 (5g) (ar) 2m. c.,
8196.491 (4) (c) 1m. (intro.), 196.491 (4) (c) 1m. a., 196.491 (4) (c) 1m. b., 196.595
9(1) (c), 201.10 (2), 348.17 (3) and 348.17 (4);
to repeal and recreate 182.0175
10(3) (title); and
to create 59.693 (11), 182.0175 (1) (aa), 182.0175 (1) (ab),
11182.0175 (1) (ac), 182.0175 (1) (ag), 182.0175 (1) (bq), 182.0175 (1) (br),
12182.0175 (1) (bw), 182.0175 (1) (by), 182.0175 (1) (bz), 182.0175 (1m) (d) 8. to
1312., 182.0175 (2) (as) (title), 182.0175 (3) (bc), (bg), (br) and (c), 182.0175 (3) (d)
12., 182.0175 (3) (e), 182.0175 (3) (f), 182.0175 (3) (g), 182.0175 (3g), 196.025 (7),
2196.026 and 196.192 (2) (bm) 1. and 2. of the statutes;
relating to: one-call
3system enforcement and other requirements, Public Service Commission
4authority regarding state energy policy, settlements between parties in Public
5Service Commission dockets, various public utility regulatory requirements,
6the regulation of utility facilities under a county construction site erosion
7control and storm water management zoning ordinance, granting rule-making
8authority, and providing a penalty.
Analysis by the Legislative Reference Bureau
This substitute amendment creates procedures for handling complaints about
violations of requirements under current law regarding excavations, which are
commonly referred to as “digger's hotline” requirements. The substitute amendment
also makes other changes to those requirements. In addition, the substitute
amendment imposes duties on the Public Service Commission regarding state
energy policy and makes various other changes to the PSC's regulation of public
utilities. Also, the substitute amendment creates settlement requirements in PSC
dockets. Finally, the substitute amendment affects the treatment of certain utility
facilities under county construction site erosion control and storm water
management zoning ordinances.
digger's hotline requirements
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. 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. 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.
Natural gas and other hazardous materials. The substitute amendment
creates procedures for handling complaints regarding violations of digger's hotline
requirements involving transmission facilities that transport natural gas or other
hazardous materials. The complaint procedure does not apply to violations resulting
from excavations on residential property by owners or lessees or excavations
performed while engaged in an agricultural activity, unless the excavation is
performed by or on behalf of a person engaged in the business of performing
excavations for the public. The substitute amendment allows the one-call system
to file a complaint, as well as a city, village, town, or county (political subdivision) or
the Department of Transportation, but only if the political subdivision or DOT has
property affected by an alleged violation. In addition, a transmission facility owner,
excavator, or underground line locator may file a complaint if its property or
activities are affected by an alleged violation. If a complaint alleges that a person
who is not a state agency is responsible for a violation, the complaint must be filed
with a panel appointed by the one-call system. The panel has the following seven
members: two transmission facility owners; two excavators; one employee of the
one-call system's operational center; one member representing a political
subdivision; and one person employed as an underground line locator. If the
complaint alleges that a state agency is responsible for a violation, the complaint
must be filed with the PSC.
A person who is allowed to file a complaint with the panel or the PSC must do
so no later than 120 days after the person discovers an alleged violation. However,
the substitute amendment allows the panel and the PSC for good cause to extend the
filing deadline to no more than one year after the discovery. Neither the panel nor
the PSC may dismiss a complaint solely due to absence of direct damage to the person
filing the complaint, whom the substitute amendment refers to as the complainant.
For a complaint filed with the panel, the substitute amendment requires the
panel to provide notice by certified mail to a person or a person's agent who is alleged
to have violated digger's hotline requirements. The substitute amendment refers to
that person or agent as the respondent. The substitute amendment also allows the
panel to consolidate complaints. The substitute amendment requires the respondent
to file a response to the complaint within 20 days after service of the notice, unless
the panel extends the 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 a specified deadline, the panel must determine by majority vote
whether there is probable cause that the respondent took an action that the
respondent knew or should have known was in violation of digger's hotline
requirements. If the respondent files a timely response, the panel must make that
determination within 20 days after the response is filed. The substitute amendment
specifies different deadlines if the respondent fails to file a timely response. The
panel must dismiss a complaint for lack of probable cause or at the request of the
complainant. If the panel determines that there is probable cause, the panel must
either 1) refer the complaint to the PSC or 2) allow the respondent to attend an
educational course administered by the one-call system.
If a person files a complaint with the PSC regarding a state agency, or the panel
refers a complaint to the PSC, the substitute amendment allows the PSC, with or
without notice, to investigate the complaint. If the PSC determines there is sufficient
cause to warrant a hearing, the PSC must set the matter for public hearing upon ten
days' notice and treat the complaint as a contested case under the state's
administrative procedure law. The PSC must also treat the complaint as a contested
case if the PSC determines there is not sufficient cause to warrant a hearing, but the
complainant or respondent contests that determination. If the PSC holds a hearing
and determines that the respondent took an action that the respondent knew or
should have known was in violation of digger's hotline requirements, the substitute
amendment allows the PSC to issue an order that directly assesses a forfeiture
against the respondent, requires the respondent to attend an educational course
administered by the one-call system, or does both. The substitute amendment also
allows the PSC to dismiss the complaint by executing a consent agreement with the
respondent. Like an order, a consent agreement may directly assess a forfeiture,
require educational course attendance, or do both.
Regarding forfeitures, the substitute amendment allows a PSC order or consent
agreement to directly assess against the respondent a forfeiture of no more than
$25,000 for each violation, with each day of violation constituting a separate
violation. In order for the PSC to assess a forfeiture against a person, the substitute
amendment requires that the person must have known or should have known that
the person's actions were violations. Also, for a single persisting violation, the
maximum forfeiture is $500,000. The foregoing replaces the $2,000 forfeiture under
current law for willful and knowing violations of digger's hotline requirements. The
forfeitures must be deposited in the school fund. The substitute amendment
provides that no other forfeiture may be imposed. If the PSC assesses a forfeiture
in an order or consent agreement, the PSC must also require the respondent to pay
a surcharge to the one-call system that is equal to 10 percent of the forfeiture. If the
amount of a forfeiture is reduced on appeal, the surcharge must be proportionately
reduced.
If the panel allows a respondent to attend the one-call system's educational
course, or a PSC order or consent agreement requires attendance, the respondent
must pay a fee for the course to the one-call system. The substitute amendment
requires the one-call system to establish a damage prevention fund and deposit the
fees in the fund. The one-call system must also deposit in the fund the surcharges
described above. The substitute amendment requires the one-call system to use the
fund to pay for the cost of producing and administering the educational course or for
providing public outreach and underground utility damage prevention awareness
programs.
Other forfeitures. For violations of digger's hotline requirements involving
transmission facilities that do not transport natural gas or other hazardous
materials, the substitute amendment retains the $2,000 forfeiture under current law
for willful and knowing violations, except that forfeitures do not apply to violations
resulting from excavations on residential property by owners or lessees or
excavations performed while engaged in an agricultural activity. However, that
exception does not apply if the excavation is performed by or on behalf of a person
engaged in the business of performing excavations for the public.
Other changes. The substitute amendment makes other changes, including
the following:
1. 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.
2. Specifies that an owner has marked its transmission facilities in a
reasonable manner as required under current law if the owner has located and
marked the facilities to a level of accuracy and precision consistent with national
standards.
3. Allows the one-call system to establish policies, procedures, and forms for
complaints made to the panel and allows the PSC to promulgate rules regarding its
duties under the substitute amendment.
state energy policy and other PSC changes
The substitute amendment transfers from the Department of Administration
to the PSC powers regarding energy alert orders that are issued by the governor.
Current law allows the governor to issue such an order upon determining that a
disruption of energy supplies poses a serious risk to economic well-being or public
health or welfare. If the governor issues such an order, current law authorizes DOA
to issue orders and promulgate rules requiring producers, importers, and sellers of
coal and other specified fuels to disclose information pertaining to fuel supply and
demand. The substitute amendment transfers that authority from DOA to the PSC.
The substitute amendment also allows the PSC to exercise the following powers
and duties: 1) maintaining data for state agency energy planning; 2) administering
federal energy grants when designated to do so by the governor; 3) preparing and
maintaining contingency plans for critical energy shortages; 4) providing technical
assistance to local governments regarding energy efficiency and renewable
resources; and 5) requiring public utilities to provide energy billing and use data
about public schools. The substitute amendment also requires the Department of
Transportation to consult with the PSC, instead of DOA, when DOT waives motor
vehicle weight limits during energy emergencies.
The substitute amendment eliminates two outdated PSC reporting
requirements. First, current law required the PSC to study the establishment of an
incentive program for developing small-scale electric generating facilities. Second,
current law required the PSC to contract for a study on the impact of horizontal
market power on creating a competitive retail electricity market. Current law
required the PSC to submit reports to the legislature on those studies by January 1,
2001. The substitute amendment eliminates those requirements.
The substitute amendment also does the following:
1. Requires the PSC to approve market-based rates for investor-owned electric
utilities if the rates satisfy specified criteria.
2. Repeals an outdated filing requirement for such utilities regarding such
rates.
3. Requires the PSC to consider interest rates for state and local bonds when
setting the overall rate of return for municipal water and sewer utilities. This
requirement replaces a requirement under current law for the PSC to apply an
interest rate formula based on a federal reserve board publication.
4. Allows the PSC to regulate advertising by water public utilities to the same
extent that the PSC regulates advertising by other public utilities under current law.
5. Eliminates a requirement for an investor-owned public utility to pay a fee
when applying to the PSC to issue securities.
6. Makes changes to the criteria that must be satisfied to qualify for exemptions
from the PSC certifications required for constructing or rebuilding certain electric
transmission lines.
Settlements in PSC dockets
The substitute amendment creates requirements regarding settlements in PSC
“dockets,” which the substitute amendment defines as investigations, proceedings,
or other matters opened by a vote of the PSC, except for rule making. The substitute
amendment allows parties to a docket to agree upon some or all of the facts, which
must be evidenced by a written stipulation and filed with the PSC or entered upon
the record. The substitute amendment also allows the parties to agree upon a
resolution of some or all of the issues. If some of the parties propose a written
settlement agreement, those parties must submit the agreement and relevant
documents to the PSC and serve a copy of the agreement on all parties to the docket.
If not all parties support the proposed settlement agreement, the settling parties
must convene at least one conference for all parties to discuss the proposed
settlement agreement, except that a nonsettling party may waive its right to the
conference. Within 30 days of service of a proposed settlement agreement, each party
must make a written response that consists of the party's agreement, objection, or
nonobjection to the settlement agreement. A party must serve its response on all
parties. If a party objects to a settlement agreement, the party must state its
objections with particularity and specify how the party would be adversely affected
by the agreement. If a party fails to respond within the 30-day deadline, the failure
is considered a nonobjection, unless the PSC for good cause sets a different time for
response.
The substitute amendment allows the PSC to approve a settlement agreement
if all of the following conditions are met. First, each party that responded with an
objection or nonobjection to the agreement or that failed to respond must have been
given a reasonable opportunity to present evidence and arguments in opposition to
the settlement agreement. Second, the PSC must find that the public interest is
adequately represented by the parties who entered into the agreement. Finally, the
PSC must find that the settlement agreement represents a fair and reasonable
resolution to the docket, is supported by substantial evidence on the record as a
whole, and complies with applicable law, including that any rates resulting from the
settlement agreement are just and reasonable. The substitute amendment also
allows the PSC to approve a settlement agreement in whole or in part and with
conditions deemed necessary by the PSC. If a settlement agreement does not resolve
all of the issues in the docket, the substitute amendment requires the PSC to decide
the remaining issues in accordance with applicable law and procedure.
construction site erosion control and storm water
management
The substitute amendment affects the treatment under a county construction
site erosion control and storm water management zoning ordinance of the
construction or maintenance of a facility, defined in the substitute amendment as
property or equipment used for the transmission, delivery, or furnishing of natural
gas, heat, light, or power and owned by a public utility or cooperative association
organized for the purpose of producing or furnishing heat, light, or power to its
members only. Under the substitute amendment, the construction and maintenance
of a facility is considered to satisfy such a zoning ordinance if the Department of
Natural Resources has issued all required navigable water, water and sewage, and
pollution discharge permits or approvals authorizing the construction or
maintenance or, if no such permits or approvals are required, if the construction and
maintenance is conducted in a manner that employs best management practices to
infiltrate or otherwise control storm water runoff from that infrastructure. Under
current law, the construction and maintenance of a facility with these permits or
approvals is considered to satisfy a county's shoreland zoning ordinance.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB475-SSA1,1
1Section
1. 16.95 (12) of the statutes is renumbered 196.025 (7) (a) 3.
SB475-SSA1,2
2Section
2. 16.955 of the statutes is renumbered 196.029, and 196.029 (1), (3)
3(a), (b) and (c) and (4) (a), (b) and (d), as renumbered, are amended to read:
SB475-SSA1,8,84
196.029
(1) Information. If the governor determines that a disruption of
5energy supplies poses a serious risk to the economic well-being, health or welfare of
6the citizens of this state, the governor may issue an order declaring an energy alert.
7Upon declaration of an energy alert by the governor, the
department commission 8may issue general or special orders, as defined in s. 101.01 (7), or promulgate
9emergency rules under ch. 227 to compel disclosure of information required for
10purposes of this section. Any person, or agent of the person, who produces, imports
11or sells, coal or other forms of fuel, other than electricity, natural gas or wood, who
12is subject to an emergency rule or general or special order of the
department 13commission within reasonable time limits specified in the order shall file or furnish
1such reports, information, data, copies of extracts of originals as the
department 2commission deems necessary relating to existing and future energy supplies,
3including but not limited to record of sales in years for 1970 and thereafter, storage
4capacity, supplies on hand and anticipated supplies, and anticipated demand. To the
5extent that the reports and data requested by the
department commission are
6presently available from other state or federal agencies, the
department commission 7shall coordinate its data reporting requirements with the agencies to avoid
8duplication of reporting.
SB475-SSA1,8,14
9(3) (a) Any person, or agent of a person, who produces, imports or sells, coal or
10other forms of fuel, other than electricity, natural gas or wood, who fails to provide
11information requested by the
department commission at the time and in the manner
12specified by the
department commission shall forfeit an amount not to exceed $1,000.
13Each day the violation of this section continues from the day notice has been received
14constitutes a separate offense.
SB475-SSA1,8,1815
(b) Upon request of the
department commission, the attorney general or the
16district attorney of the proper county may aid in any investigation, enforce any
17request of the
department commission for information under this section or seek
18forfeitures for violations of this section.
SB475-SSA1,8,2219
(c) Upon request of the
department commission, the attorney general or the
20district attorney of the proper county may apply to any court of competent
21jurisdiction for a temporary or permanent injunction restraining any person from
22violating this section.
SB475-SSA1,8,25
23(4) (a) The
department commission or any of its authorized agents may, in
24relation to any matter arising under this section, conduct hearings, administer
25oaths, issue subpoenas and take testimony.
SB475-SSA1,9,7
1(b) The witnesses subpoenaed by the
department commission or its agent and
2officers who serve subpoenas shall be entitled to the fees allowed in courts of record.
3The fees shall be audited and paid by the state in the same manner as other expenses
4of the
department commission are audited and paid. No witness subpoenaed at the
5instance of any party other than the
department
commission is entitled to payment
6of fees by the state, unless the
department
commission certifies that the testimony
7of the witness was material.
SB475-SSA1,9,98
(d) A record of all hearings shall be kept by the
department commission. All
9hearings shall be public.
SB475-SSA1,3
10Section
3. 26.03 (1v) (b) of the statutes is amended to read:
SB475-SSA1,9,1211
26.03
(1v) (b) An electric cooperative, as defined in s.
196.025 (5) (ag) 101.80
12(1g).