2003 Wisconsin Act 118

(b) The proposed rule would cost affected persons $20 million or more during each of the first 5 years after the rule's implementation to comply with the rule, or the rule would adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.

(3) An economic impact report shall contain information on the effect of the proposed rule on specific businesses, business sectors, and the state's economy. When preparing the report, the agency shall solicit information and advice from the department of commerce, and from governmental units, associations, businesses, and individuals that may be affected by the proposed rule. The agency may request information that is reasonably necessary for the preparation of an economic impact report from other state agencies, governmental units, associations, businesses, and individuals. The economic impact report shall include all of the following:

(a) An analysis and quantification of the problem, including any risks to public health or the environment, that the rule is intending to address.

(b) An analysis and quantification of the economic impact of the rule, including costs reasonably expected to be incurred by the state, governmental units, associations, businesses, and affected individuals.

(c) An analysis of benefits of the rule, including how the rule reduces the risks and addresses the problems that the rule is intended to address.

(4) The agency shall submit the economic impact report to the legislative council staff, to the department of administration, and to the petitioner.

(5) This section does not apply to emergency rules promulgated under s. 227.24.

118,160 Section 160. 227.138 of the statutes is created to read:

227.138 Department of administration review of proposed rules. (1) In this section:

(a) "Agency" has the meaning given in s. 227.137 (1).

(b) "Department" means the department of administration.

(c) "Economic impact report" means a report prepared under s. 227.137.

(2) If an economic impact report will be prepared under s. 227.137 (2) regarding a proposed rule, the department shall review the proposed rule and issue a report. The agency shall not submit a proposed rule to the legislative council staff for review under s. 227.15 (1) until the agency receives a copy of the department's report and the approval of the secretary of administration. The report shall include all of the following findings:

(a) That the economic impact report and the analysis required under s. 227.137 (3) are supported by related documentation contained in the economic impact report.

(b) That the agency has statutory authority to promulgate the proposed rule.

(c) That the proposed rule, including any administrative requirements, is consistent with and not duplicative of other state rules or federal regulations.

(d) That the agency has adequately documented the factual data and analytical methodologies that the agency used in support of the proposed rule and the related findings that support the regulatory approach that the agency chose for the proposed rule.

(3) Before issuing a report under sub. (2), the department may return a proposed rule to the agency for further consideration and revision with a written explanation of why the proposed rule is returned. If the agency head disagrees with the department's reasons for returning the proposed rule, the agency head shall so notify the department in writing. The secretary of administration shall approve the proposed rule when the agency has adequately addressed the issues raised during the department's review of the rule.

(4) No person is entitled to judicial review of any action taken by the department under this section.

118,161 Section 161. 227.14 (2) (a) of the statutes is amended to read:

227.14 (2) (a) An agency shall prepare in plain language an analysis of each proposed rule, which shall be printed with the proposed rule when it is published or distributed. The analysis shall include a all of the following:

1. A reference to each statute that the proposed rule interprets, each statute that authorizes its promulgation, each related statute or related rule, and a an explanation of the agency's authority to promulgate the proposed rule under those statutes.

2. A brief summary of the proposed rule.

118,162 Section 162. 227.14 (2) (a) 3. of the statutes is created to read:

227.14 (2) (a) 3. A summary of and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule.

118,163 Section 163. 227.14 (2) (a) 4. of the statutes is created to read:

227.14 (2) (a) 4. A comparison of similar rules in adjacent states.

118,164 Section 164. 227.14 (2) (a) 5. of the statutes is created to read:

227.14 (2) (a) 5. A summary of the factual data and analytical methodologies that the agency used in support of the proposed rule and how any related findings support the regulatory approach chosen for the proposed rule.

118,165 Section 165. 227.14 (2) (a) 6. of the statutes is created to read:

227.14 (2) (a) 6. Any analysis and supporting documentation that the agency used in support of the agency's determination of the rule's effect on small businesses under s. 227.114 or that was used when the agency prepared an economic impact report under s. 227.137 (3).

118,166 Section 166. 227.14 (4) (b) 3. of the statutes is created to read:

227.14 (4) (b) 3. For rules that the agency determines may have a significant fiscal effect on the private sector, the anticipated costs that will be incurred by the private sector in complying with the rule.

118,167 Section 167. 227.19 (3) (intro.) of the statutes is amended to read:

227.19 (3) Form of report. (intro.) The report required under sub. (2) shall be in writing and shall include the proposed rule in the form specified in s. 227.14 (1), the material specified in s. 227.14 (2) to (4), a copy of any economic impact report prepared by the agency under s. 227.137, a copy of any report prepared by the department of administration under s. 227.138, a copy of any recommendations of the legislative council staff, and an analysis. The analysis shall include:

118,168 Section 168. 227.19 (3) (a) of the statutes is amended to read:

227.19 (3) (a) A detailed statement explaining the need for basis and purpose of the proposed rule, including how the proposed rule advances relevant statutory goals or purposes.

118,169 Section 169. 227.19 (3) (b) of the statutes is amended to read:

227.19 (3) (b) An A summary of public comments to the proposed rule and the agency's response to those comments, and an explanation of any modification made in the proposed rule as a result of public comments or testimony received at a public hearing.

118,170 Section 170. 227.19 (3) (cm) of the statutes is created to read:

227.19 (3) (cm) Any changes to the analysis prepared under s. 227.14 (2) or the fiscal estimate prepared under s. 227.14 (4).

118,171 Section 171. 227.43 (1g) of the statutes is created to read:

227.43 (1g) The administrator of the division of hearings and appeals shall establish a system for assigning hearing examiners to preside over any hearing under this section. The system shall ensure, to the extent practicable, that hearing examiners are assigned to different subjects on a rotating basis. The system may include the establishment of pools of examiners responsible for certain subjects.

118,172 Section 172. 227.44 (2) (d) of the statutes is created to read:

227.44 (2) (d) If the subject of the hearing is a decision of the department of natural resources or the department of transportation, the name and title of the person who will conduct the hearing.

118,173 Section 173. 227.483 of the statutes is created to read:

227.483 Costs upon frivolous claims. (1) If a hearing examiner finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by a party is frivolous, the hearing examiner shall award the successful party the costs and reasonable attorney fees that are directly attributable to responding to the frivolous petition, claim, or defense.

(2) If the costs and fees awarded under sub. (1) are awarded against the party other than a public agency, those costs may be assessed fully against either the party or the attorney representing the party or may be assessed so that the party and the attorney each pay a portion of the costs and fees.

(3) To find a petition for a hearing or a claim or defense to be frivolous under sub. (1), the hearing examiner must find at least one of the following:

(a) That the petition, claim, or defense was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.

(b) That the party or the party's attorney knew, or should have known, that the petition, claim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.

118,174 Section 174. 227.53 (1) (a) 3. of the statutes is amended to read:

227.53 (1) (a) 3. If the petitioner is a resident, the proceedings shall be held in the circuit court for the county where the petitioner resides, except that if the petitioner is an agency, the proceedings shall be in the circuit court for the county where the respondent resides and except as provided in ss. 73.0301 (2) (b) 2., 77.59 (6) (b), 182.70 (6), and 182.71 (5) (g). The proceedings shall be in the circuit court for Dane County if If the petitioner is a nonresident, the proceedings shall be held in the county where the property affected by the decision is located or, if no property is affected, in the county where the dispute arose. If all parties stipulate and the court to which the parties desire to transfer the proceedings agrees, the proceedings may be held in the county designated by the parties. If 2 or more petitions for review of the same decision are filed in different counties, the circuit judge for the county in which a petition for review of the decision was first filed shall determine the venue for judicial review of the decision, and shall order transfer or consolidation where appropriate.

118,175 Section 175. 236.16 (3) (d) (intro.) of the statutes is amended to read:

236.16 (3) (d) (intro.) All of the owners of all of the land adjacent to a public access established under par. (a) to an inland lake, as defined in s. 30.92 (1) (bk), may petition the city, village, town or county that owns the public access to construct shoreline erosion control measures. Subject to par. (e), the city, village, town or county shall construct the requested shoreline erosion control measures or request the department of natural resources to determine the need for shoreline erosion control measures. Upon receipt of a request under this paragraph from a city, village, town or county, the department of natural resources shall follow the notice and hearing procedures in s. 30.02 (3) and (4) 30.208 (3) to (5). Subject to par. (e), the city, village, town or county shall construct shoreline erosion control measures as required by the department of natural resources if the department of natural resources determines all of the following:

118,176 Section 176. 285.11 (9) of the statutes is amended to read:

285.11 (9) Prepare and adopt minimum standards for the emission of mercury compounds or metallic mercury into the air, consistent with s. 285.27 (2) (b).

118,177 Section 177. 285.14 of the statutes is created to read:

285.14 State implementation plans. (1) Content. 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 revisor of statutes 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.

118,178 Section 178. 285.17 (2) of the statutes is renumbered 285.17 (2) (a).

118,179 Section 179. 285.17 (2) (b) of the statutes is created to read:

285.17 (2) (b) 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.

118,180 Section 180. 285.21 (1) (b) of the statutes is renumbered 285.21 (1) (b) (intro.) and amended to read:

285.21 (1) (b) Standard to protect health or welfare. (intro.) 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:

118,181 Section 181. 285.21 (1) (b) 1. to 4. of the statutes are created to read:

285.21 (1) (b) 1. 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.

2. 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.

3. 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.

4. A comparison of the proposed ambient air quality standard with ambient air quality standards in Illinois, Indiana, Michigan, Minnesota, and Ohio.

118,182 Section 182. 285.21 (4) of the statutes is amended to read:

285.21 (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 relaxed modified, the department shall alter the corresponding state standards unless it finds that the relaxed 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. to 4.

118,183 Section 183. 285.23 (1) of the statutes is amended to read:

285.23 (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 the effective date of this subsection .... [revisor inserts date], 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.

118,184 Section 184. 285.23 (2) of the statutes is amended to read:

285.23 (2) Documents. 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.

118,185 Section 185. 285.23 (6) of the statutes is created to read:

285.23 (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 revisor of statutes 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.

118,186 Section 186. 285.27 (1) (a) of the statutes is amended to read:

285.27 (1) (a) Similar to federal standard. If a standard of performance for new stationary sources is promulgated under section 111 of the federal clean air act, the department shall promulgate by rule a similar emission standard, including administrative requirements that are consistent with the federal administrative requirements, but this standard may not be more restrictive in terms of emission limitations than the federal standard except as provided under sub. (4).

118,187 Section 187. 285.27 (2) (a) of the statutes is amended to read:

285.27 (2) (a) Similar to federal standard. If an emission standard for a hazardous air contaminant is promulgated under section 112 of the federal clean air act, the department shall promulgate by rule a similar standard, including administrative requirements that are consistent with the federal administrative requirements, but this standard may not be more restrictive in terms of emission limitations than the federal standard except as provided under sub. (4).

118,188 Section 188. 285.27 (2) (b) of the statutes is renumbered 285.27 (2) (b) (intro.) and amended to read:

285.27 (2) (b) Standard to protect public health or welfare. (intro.) If an emission standard for a hazardous air contaminant is not promulgated under section 112 of the federal clean air act, the department may promulgate an emission standard for the hazardous air contaminant if the department finds the standard is needed to provide adequate protection for public health or welfare. The department may not make this finding for a hazardous air contaminant unless the finding is supported with written documentation that includes all of the following:

118,189 Section 189. 285.27 (2) (b) 1. to 4. of the statutes are created to read:

285.27 (2) (b) 1. A public health risk assessment that characterizes the types of stationary sources in this state that are known to emit the hazardous air contaminant and the population groups that are potentially at risk from the emissions.

2. An analysis showing that members of population groups are subjected to levels of the hazardous air contaminant that are above recognized environmental health standards or will be subjected to those levels if the department fails to promulgate the proposed emission standard for the hazardous air contaminant.

3. An evaluation of options for managing the risks caused by the hazardous air contaminant considering risks, costs, economic impacts, feasibility, energy, safety, and other relevant factors, and a finding that the chosen compliance alternative reduces risks in the most cost-effective manner practicable.

4. A comparison of the emission standards for hazardous air contaminants in this state to hazardous air contaminant standards in Illinois, Indiana, Michigan, Minnesota, and Ohio.