Amendment ASA1-AB532

LRBs0145/1

MDK&EHS:emw&ahe

2017 - 2018 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO ASSEMBLY BILL 532

October 23, 2017 - Offered by Representative Kuglitsch.

AB532-ASA1,2,8 An Act to repeal 196.025 (4), 196.025 (5), 196.192 (2) (am) and 201.10 (1); to renumber 16.95 (12), 182.0175 (1) (bt) and 182.0175 (1) (bv); to renumber and amend 16.955, 182.0175 (2) (am) 3., 182.0175 (3) (a) (title), 182.0175 (3) (a), 182.0175 (3) (b) and 196.192 (2) (bm); to amend 26.03 (1v) (b), 101.80 (1g), 182.0175 (2) (am) (title), 182.0175 (2) (am) 7., 182.0175 (2) (bm) (title), 182.0175 (2m) (b) (intro.), 182.0175 (4), 182.0175 (5), 196.192 (2) (c), 196.192 (3m), 196.193 (3), 196.49 (5g) (ag), 196.49 (5g) (ar) 2m. b., 196.49 (5g) (ar) 2m. c., 196.491 (4) (c) 1m. (intro.), 196.491 (4) (c) 1m. a., 196.491 (4) (c) 1m. b., 196.595 (1) (c), 201.10 (2), 348.17 (3) and 348.17 (4); to repeal and recreate 182.0175 (3) (title); and to create 59.693 (11), 182.0175 (1) (aa), 182.0175 (1) (ab), 182.0175 (1) (ac), 182.0175 (1) (ag), 182.0175 (1) (bq), 182.0175 (1) (br), 182.0175 (1) (bw), 182.0175 (1) (by), 182.0175 (1) (bz), 182.0175 (1m) (d) 8. to 12., 182.0175 (2) (as) (title), 182.0175 (3) (bc), (bg), (br) and (c), 182.0175 (3) (d) 2., 182.0175 (3) (e), 182.0175 (3) (f), 182.0175 (3) (g), 182.0175 (3g), 196.025 (7), 196.026 and 196.192 (2) (bm) 1. and 2. of the statutes; relating to: one-call system enforcement and other requirements, Public Service Commission authority regarding state energy policy, settlements between parties in Public Service Commission dockets, various public utility regulatory requirements, the regulation of utility facilities under a county construction site erosion control and storm water management zoning ordinance, granting rule-making authority, 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:

AB532-ASA1,1 Section 1. 16.95 (12) of the statutes is renumbered 196.025 (7) (a) 3.

AB532-ASA1,2 Section 2. 16.955 of the statutes is renumbered 196.029, and 196.029 (1), (3) (a), (b) and (c) and (4) (a), (b) and (d), as renumbered, are amended to read:

AB532-ASA1,8,8 196.029 (1) Information. If the governor determines that a disruption of energy supplies poses a serious risk to the economic well-being, health or welfare of the citizens of this state, the governor may issue an order declaring an energy alert. Upon declaration of an energy alert by the governor, the department commission may issue general or special orders, as defined in s. 101.01 (7), or promulgate emergency rules under ch. 227 to compel disclosure of information required for purposes of this section. Any person, or agent of the person, who produces, imports or sells, coal or other forms of fuel, other than electricity, natural gas or wood, who is subject to an emergency rule or general or special order of the department commission within reasonable time limits specified in the order shall file or furnish such reports, information, data, copies of extracts of originals as the department commission deems necessary relating to existing and future energy supplies, including but not limited to record of sales in years for 1970 and thereafter, storage capacity, supplies on hand and anticipated supplies, and anticipated demand. To the extent that the reports and data requested by the department commission are presently available from other state or federal agencies, the department commission shall coordinate its data reporting requirements with the agencies to avoid duplication of reporting.

AB532-ASA1,8,14 (3) (a) Any person, or agent of a person, who produces, imports or sells, coal or other forms of fuel, other than electricity, natural gas or wood, who fails to provide information requested by the department commission at the time and in the manner specified by the department commission shall forfeit an amount not to exceed $1,000. Each day the violation of this section continues from the day notice has been received constitutes a separate offense.

AB532-ASA1,8,18 (b) Upon request of the department commission, the attorney general or the district attorney of the proper county may aid in any investigation, enforce any request of the department commission for information under this section or seek forfeitures for violations of this section.

AB532-ASA1,8,22 (c) Upon request of the department commission, the attorney general or the district attorney of the proper county may apply to any court of competent jurisdiction for a temporary or permanent injunction restraining any person from violating this section.

AB532-ASA1,8,25 (4) (a) The department commission or any of its authorized agents may, in relation to any matter arising under this section, conduct hearings, administer oaths, issue subpoenas and take testimony.

AB532-ASA1,9,7 (b) The witnesses subpoenaed by the department commission or its agent and officers who serve subpoenas shall be entitled to the fees allowed in courts of record. The fees shall be audited and paid by the state in the same manner as other expenses of the department commission are audited and paid. No witness subpoenaed at the instance of any party other than the department commission is entitled to payment of fees by the state, unless the department commission certifies that the testimony of the witness was material.

AB532-ASA1,9,9 (d) A record of all hearings shall be kept by the department commission. All hearings shall be public.

AB532-ASA1,3 Section 3. 26.03 (1v) (b) of the statutes is amended to read:

AB532-ASA1,9,12 26.03 (1v) (b) An electric cooperative, as defined in s. 196.025 (5) (ag) 101.80 (1g).

AB532-ASA1,4 Section 4 . 59.693 (11) of the statutes is created to read:

AB532-ASA1,9,18 59.693 (11) Utility facilities. (a) In this subsection, “facility" means any property or equipment of a public utility, as defined in s. 196.01 (5), or a cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, or power to its members only, that is used for the transmission, delivery, or furnishing of natural gas, heat, light, or power.

AB532-ASA1,9,21 (b) The construction and maintenance of a facility is considered to satisfy the requirements of this section and any county ordinance enacted under this section if any of the following applies:

AB532-ASA1,9,23 1. The department has issued all required permits or approvals authorizing the construction or maintenance under ch. 30, 31, 281, or 283.

AB532-ASA1,9,25 2. No department permit or approval under subd. 1. is required for the construction or maintenance and the construction or maintenance is conducted in a manner that employs best management practices to infiltrate or otherwise control storm water runoff from the facility.

AB532-ASA1,5 Section 5. 101.80 (1g) of the statutes is amended to read:

AB532-ASA1,10,7 101.80 (1g) “Electric cooperative" has the meaning given in s. 196.025 (5) (ag) means a cooperative association organized under ch. 185 for the purpose of generating, distributing, or furnishing electric energy at retail or wholesale to its members only.

AB532-ASA1,6 Section 6 . 182.0175 (1) (aa) of the statutes is created to read:

AB532-ASA1,10,10 182.0175 (1) (aa) “Agricultural activity” has the meaning given in s. 101.10 (1) (a).

AB532-ASA1,7 Section 7 . 182.0175 (1) (ab) of the statutes is created to read:

AB532-ASA1,10,12 182.0175 (1) (ab) “Commission” means the public service commission.

AB532-ASA1,8 Section 8 . 182.0175 (1) (ac) of the statutes is created to read:

AB532-ASA1,10,15 182.0175 (1) (ac) “Complainant” means a person who files a complaint under sub. (3) (bg) 1. or 2.

AB532-ASA1,9 Section 9 . 182.0175 (1) (ag) of the statutes is created to read: