AB655: Bill Text

AB655,77,5 227.19 (3) (cm) Any changes to the analysis prepared under s. 227.14 (2) or the fiscal estimate prepared under s. 227.14 (4).

AB655, s. 190 Section 190. 227.40 (4m) of the statutes is created to read:

AB655,77,13 227.40 (4m) (a) In any proceeding under this section for judicial review of a rule, the court shall conduct the review without a jury. The review shall be confined to a substantial inquiry of the agency record, as necessarily and appropriately supplemented by evidence presented to the court. The agency record includes the economic impact report and documentation required under s. 227.137 (3), the analysis and documentation required under ss. 227.14 (2) and 227.19 (3), and public comments on the rule.

AB655,77,16 (b) The court shall treat separately disputed issues of agency procedure, interpretations of law, and determinations of fact or policy within the agency's exercise of delegated discretion.

AB655,77,24 (c) When reviewing whether a rule is invalid as promulgated for failure to comply with statutory rule-making procedures under this chapter, the court shall determine the adequacy of the factual basis to support the rule and the related reasoning employed by the agency to reach its conclusions. When determining the adequacy of the factual basis to support the rule, the court shall consider relevant comments on and alternatives to the rule's approach offered by affected parties during the rule-making process. Based on this review, the court shall find the rule invalid if the agency's decision-making process was arbitrary and capricious.

AB655,78,4 (d) The court shall find a rule invalid if it determines that the adequacy of the rule-making process or that the validity of the regulatory approach was impaired by a material error in agency procedure or a failure of the agency to follow prescribed procedure.

AB655,78,10 (e) When an agency's statutory authority to promulgate a rule is predicated on the rule being comparable to relevant federal programs or standards, including requirements that the rule be similar to, consistent with, or no more restrictive than federal programs or standards, the court shall conduct a de novo review of the agency record to determine if the agency determination that the rule was comparable to the federal program or standards was supported by substantial evidence.

AB655,78,15 (f) When an agency's statutory authority to promulgate a rule exceeding relevant federal programs or standards is predicated on the agency making a finding of need, including a need to protect human health or the environment, the court shall review the agency's record to determine if the agency's findings were supported by substantial evidence.

AB655,78,18 (g) If a court finds that the agency's analysis and determinations under s. 227.137 (3) are arbitrary and capricious, the court shall find the rule invalid as without compliance with statutory rule-making procedures set forth in this chapter.

AB655, s. 191 Section 191. 227.43 (1g) of the statutes is created to read:

AB655,78,21 227.43 (1g) The administrator of the division of hearings and appeals shall randomly assign hearing examiners to preside over any hearing under this section.

AB655, s. 192 Section 192. 227.44 (2) (d) of the statutes is created to read:

AB655,78,23 227.44 (2) (d) The name and title of the person who will conduct the hearing.

AB655, s. 193 Section 193. 227.445 of the statutes is created to read:

AB655,79,4 227.445 Substitution of hearing examiner. (1) A person requesting a hearing before a hearing examiner may file a written request for a substitution of a new hearing examiner for the hearing examiner assigned to the matter. The written request shall be filed not later than 10 days after receipt of the notice under s. 227.44.

AB655,79,5 (2) No person may file more than one such written request in any one hearing.

AB655,79,14 (3) Upon receipt of the written request, the original hearing examiner shall have no further jurisdiction in the matter except to determine if the request was made timely and in proper form. If the hearing examiner fails to make a determination as to allowing the substitution within 7 days, the hearing examiner shall refer the matter to the administrator of the division of hearings and appeals for the determination and reassignment of the hearing as necessary. If the written request is determined to be proper, the matter shall be transferred to another hearing examiner. Upon transfer, the hearing examiner shall transmit to the new hearing examiner all the papers in the matter.

AB655, s. 194 Section 194. 227.45 (7) (intro.) of the statutes is renumbered 227.45 (7) and amended to read:

AB655,79,25 227.45 (7) In any class 2 proceeding, each party shall have the right, prior to the date set for hearing, to take and preserve evidence as provided in ch. 804. Upon motion by a party or by the person from whom discovery is sought in any class 2 proceeding, and for good cause shown, the hearing examiner may make any order in accordance with s. 804.01 which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. In any class 1 or class 3 proceeding, an agency may by rule permit the taking and preservation of evidence, but in every such proceeding the taking and preservation of evidence shall be permitted with respect to a witness:

AB655, s. 195 Section 195. 227.45 (7) (a) to (d) of the statutes are repealed.

AB655, s. 196 Section 196. 227.46 (1) (intro.) of the statutes is amended to read:

AB655,80,9 227.46 (1) (intro.) Except as provided under s. 227.43 (1), an agency may designate an official of the agency or an employee on its staff or borrowed from another agency under s. 20.901 or 230.047 as a hearing examiner to preside over any contested case. In hearings under s. 19.52, a reserve judge shall be appointed. A hearing examiner does not have authority to address or make decisions regarding possible constitutional issues. Subject to rules of the agency, examiners presiding at hearings may:

AB655, s. 197 Section 197. 227.46 (1) (h) of the statutes is amended to read:

AB655,80,12 227.46 (1) (h) Make or recommend findings of fact, conclusions of law, and decisions to the extent permitted by law.

AB655, s. 198 Section 198. 227.46 (2) of the statutes is repealed.

AB655, s. 199 Section 199. 227.46 (2m) of the statutes is repealed.

AB655, s. 200 Section 200. 227.46 (3) of the statutes is repealed.

AB655, s. 201 Section 201. 227.46 (4) of the statutes is repealed.

AB655, s. 202 Section 202. 227.46 (6) of the statutes is amended to read:

AB655,80,24 227.46 (6) The functions of persons presiding at a hearing or participating in proposed or final decisions shall be performed in an impartial manner. A hearing examiner or agency official may at any time disqualify himself or herself. In class 2 and 3 proceedings, on the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a hearing examiner or official, the agency or hearing examiner shall determine the matter as part of the record and decision in the case.

AB655, s. 203 Section 203. 227.47 (1) of the statutes is amended to read:

AB655,81,9 227.47 (1) Except as provided in sub. (2), every proposed or final decision of an agency or hearing examiner following a hearing and every final decision of an agency shall be in writing accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise and separate statement of the ultimate conclusions upon each material issue of fact without recital of evidence. Every proposed or final decision shall include a list of the names and addresses of all persons who appeared before the agency in the proceeding who are considered parties for purposes of review under s. 227.53. The agency shall by rule establish a procedure for determination of parties.

AB655, s. 204 Section 204. 227.483 of the statutes is created to read:

AB655,81,15 227.483 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 his or her costs, as determined under s. 814.04, and reasonable attorney fees.

AB655,81,19 (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.

AB655,81,21 (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:

AB655,81,23 (a) That the petition, claim, or defense was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.

AB655,82,2 (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.

AB655, s. 205 Section 205. 227.485 (5) of the statutes is amended to read:

AB655,82,16 227.485 (5) If the hearing examiner awards costs under sub. (3), he or she shall determine the costs under this subsection, except as modified under sub. (4). The decision on the merits of the case shall be placed in a proposed decision and submitted under ss. 227.47 and 227.48. The prevailing party shall submit, within 30 days after service of the proposed decision, to the hearing examiner and to the state agency which is the losing party an itemized application for fees and other expenses, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The state agency which is the losing party has 15 working days from the date of receipt of the application to respond in writing to the hearing examiner. The hearing examiner shall determine the amount of costs using the criteria specified in s. 814.245 (5) and include an order for payment of costs in the final decision.

AB655, s. 206 Section 206. 227.53 (1) (a) 3. of the statutes is amended to read:

AB655,83,6 227.53 (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.

AB655, s. 207 Section 207. 227.57 (11) of the statutes is created to read:

AB655,83,10 227.57 (11) If the decision of the hearing examiner is inconsistent with the position taken at the hearing by the agency, the court shall give no deference to the examiner's decision when conducting its review.

AB655, s. 208 Section 208. 236.16 (3) (d) (intro.) of the statutes is amended to read:

AB655,83,23 236.16 (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:

AB655, s. 209 Section 209. 241.02 (3) of the statutes is created to read:

AB655,83,25 241.02 (3) (a) In this subsection:

AB655,84,3 1. "Affiliate" of a bank, savings bank, or savings and loan association means a business entity that controls, is controlled by, or is under common control with the bank, savings bank, or savings and loan association.

AB655,84,6 2. "Financial institution" means a bank, savings bank, or savings and loan association organized under the laws of this state, another state, or the United States and any affiliate of such a bank, savings bank, or savings and loan association.

AB655,84,11 (b) Except as provided in par. (d), no action may be commenced against a financial institution on or in connection with any of the following promises or commitments of the financial institution unless the promise or commitment is in writing, sets forth relevant terms and conditions, and is signed by the financial institution:

AB655,84,13 1. A promise or commitment to lend money, grant or extend credit, or make any other financial accommodation.

AB655,84,16 2. A promise or commitment to renew, extend, modify, or permit a delay in repayment or performance of a loan, extension of credit, or other financial accommodation.

AB655,84,19 (c) Except as provided in par. (d), a promise or commitment by a financial institution described in par. (b) may not be enforced under the doctrine of promissory estoppel.

AB655,84,21 (d) Paragraphs (b) and (c) do not apply to credit transactions that are subject to chs. 421 to 427.

AB655, s. 210 Section 210. 281.22 (2) (c) of the statutes is amended to read:

AB655,84,25 281.22 (2) (c) If more than one fee under this section or s. 30.28 (2) (a) or 31.39 (2) (a) is applicable to a project, the department shall charge only the highest fee of those that are applicable.

AB655, s. 211 Section 211. 285.01 (12m) of the statutes is created to read:

AB655,85,3 285.01 (12m) "Certified contractor" means a contractor that is certified under s. 285.755.

AB655, s. 212 Section 212. 285.11 (6) (intro.) of the statutes is renumbered 285.11 (6) and amended to read:

AB655,85,15 285.11 (6) Prepare and develop one or more comprehensive plans for the prevention, abatement and control of air pollution in this state. The department thereafter shall be responsible for the revision and implementation of the plans. The rules or control strategies submitted to the federal environmental protection agency under the federal clean air act for control of atmospheric ozone shall conform with the federal clean air act unless, based on the recommendation of the natural resources board or the head of the department, as defined in s. 15.01 (8), of any other department, as defined in s. 15.01 (5), that promulgates a rule or establishes a control strategy, the governor determines that measures beyond those required by the federal clean air act meet any of the following criteria:

AB655, s. 213 Section 213. 285.11 (6) (a) and (b) of the statutes are repealed.

AB655, s. 214 Section 214. 285.11 (9) of the statutes is amended to read:

AB655,85,19 285.11 (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).

AB655, s. 215 Section 215. 285.11 (17) of the statutes is repealed and recreated to read:

AB655,86,6 285.11 (17) Promulgate rules that incorporate changes made by regulations of the federal environmental protection agency governing review of modifications of major sources under 42 USC 7470 to 7515, including regulations that were published in the Federal Register on December 31, 2002, and October 27, 2003. The department may not include in the rules any requirements that are inconsistent with or more stringent than the federal regulations. To the extent possible, the department shall incorporate similar changes for minor sources if the changes reduce administrative requirements for minor sources. The department shall submit in proposed form rules required under this subsection to the legislative council staff under s. 227.15 (1) no later than the first day of the 7th month after the regulations making the changes on which the rules are based take effect.

AB655, s. 216 Section 216. 285.14 of the statutes is created to read:

AB655,86,13 285.14 State implementation plans. (1) Content. The department may only include in a state implementation plan under 42 USC 7410 rules or requirements that are necessary to obtain approval of the plan by the federal environmental protection agency, including requirements that are necessary in order to comply with the percentage reductions specified in 42 USC 7511a (b) (1) (A) or (c) (2) (B).

AB655,87,5 (2) Review by committee for review of administrative rules. At least 90 days before the department is required to submit a state implementation plan to the federal environmental protection agency, the department shall prepare and submit a report to the joint committee for review of administrative rules that describes the proposed plan and contains all of the supporting documents that the department intends to submit with the plan. If, within 30 days after the department submits the report, the cochairpersons of the joint committee for review of administrative rules do not return the report to the department with a written explanation of why the committee is returning the report, the department may submit the plan. If, within 30 days after the department submits the report, the cochairpersons of the joint committee for review of administrative rules return the report to the department with a written explanation of why the committee is returning the report, the department may not submit the plan until the committee agrees that the department has adequately addressed the issues raised by the committee. If the secretary disagrees with the committee's reasons for returning the report, the secretary shall so notify the committee in writing. This subsection does not apply to a modification to a state implementation plan relating to an individual source.

AB655, s. 217 Section 217. 285.17 (2) of the statutes is amended to read:

AB655,87,21 285.17 (2) The department may, by rule or in an operation permit, require the owner or operator of an air contaminant source to monitor the emissions of the air contaminant source or to monitor the ambient air in the vicinity of the air contaminant source and to report the results of the monitoring to the department. The department may specify methods for conducting the monitoring and for analyzing the results of the monitoring. The department shall require the owner or operator of a major source to report the results of any required monitoring of emissions from the major source to the department no less often than every 6 months. The department may not include 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 air contaminant sources by a state adjacent to this state or if the monitoring is not needed to provide assurance of compliance with requirements that apply to the air contaminant source, unless the monitoring is required under the federal clean air act.

AB655, s. 218 Section 218. 285.21 (1) (a) (title) of the statutes is repealed.

AB655, s. 219 Section 219. 285.21 (1) (a) of the statutes is renumbered 285.21 (1) and amended to read:

AB655,88,4 285.21 (1) Ambient air quality standards. If an ambient air quality standard is promulgated under section 109 of the federal clean air act, the department shall promulgate by rule a similar standard but this standard may not be more restrictive than the federal standard except as provided under sub. (4).

AB655, s. 220 Section 220. 285.21 (1) (b) of the statutes is repealed.

AB655, s. 221 Section 221. 285.21 (2) of the statutes is amended to read:

AB655,88,11 285.21 (2) Ambient air increment. The department shall promulgate by rule ambient air increments for various air contaminants in attainment areas. The ambient air increments shall be consistent with and not more restrictive, either in terms of the concentration or the contaminants to which they apply, than ambient air increments under the federal clean air act except as provided under sub. (4).

AB655, s. 222 Section 222. 285.21 (4) of the statutes is amended to read:

AB655,88,17 285.21 (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 standards would not provide adequate protection for public health and welfare accordingly.

AB655, s. 223 Section 223. 285.23 (1) of the statutes is amended to read:

AB655,88,25 285.23 (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. The department may not identify a county as part of a nonattainment area if the the concentration of an air contaminant in the atmosphere does not exceed an ambient air quality standard, unless the department is required under the federal clean air act to identify the county as part of a nonattainment area.

AB655, s. 224 Section 224. 285.23 (5) of the statutes is created to read:

AB655,89,7 285.23 (5) Particulate standards. The department may not identify an area as a nonattainment area based on the concentration in the atmosphere of particulate matter measured as total suspended particulates and shall redesignate as an attainment area any area identified as a nonattainment area if the only basis on which the area could be identified as a nonattainment area is the concentration in the atmosphere of particulate matter measured as total suspended particulates.

AB655, s. 225 Section 225. 285.23 (6) of the statutes is created to read:

AB655,89,25 285.23 (6) Report to the joint committee for review of administrative rules. Before the department issues documents under sub. (2) and at least 90 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 submit a report to the joint committee for review of administrative rules that contains a description of any area proposed to be identified as a nonattainment area and supporting documentation. If the department has complied with sub. (4) and if, within 30 days after the department submits the report, the cochairpersons of the joint committee for review of administrative rules do not return the report to the department with a written explanation of why the committee is returning the report, the department may issue the documents under sub. (2) and the governor may make the submission. If, within 30 days after the department submits the report, the cochairpersons of the joint committee for review of administrative rules return the report to the department with a written explanation of why the committee is returning the report, the department may not issue the documents under sub. (2) and the governor may not make the submission until the committee agrees that the department has adequately addressed the issues raised by the committee.

AB655, s. 226 Section 226. 285.27 (1) (a) of the statutes is amended to read:

AB655,90,9 285.27 (1) (a) Similar to federal 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 a rule a similar that incorporates that emission standard but this standard and related administrative requirements. The department may not be promulgate a rule under this paragraph that is more restrictive in terms of emission limitations or otherwise more burdensome to persons operating sources affected by the emission standard than the federal standard and related requirements except as provided under sub. (4).

AB655, s. 227 Section 227. 285.27 (2) (a) of the statutes is amended to read:

AB655,90,18 285.27 (2) (a) Similar to federal 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 a rule a similar that incorporates that emission standard but this standard and related administrative requirements. The department may not be promulgate a rule under this paragraph that is more restrictive in terms of emission limitations or otherwise more burdensome to persons operating sources affected by the emission standard than the federal standard and related requirements except as provided under sub. (4).