AB655,79,4
1227.445 Substitution of hearing examiner. (1) A person requesting a
2hearing before a hearing examiner may file a written request for a substitution of a
3new hearing examiner for the hearing examiner assigned to the matter. The written
4request shall be filed not later than 10 days after receipt of the notice under s. 227.44.
AB655,79,5 5(2) No person may file more than one such written request in any one hearing.
AB655,79,14 6(3) Upon receipt of the written request, the original hearing examiner shall
7have no further jurisdiction in the matter except to determine if the request was
8made timely and in proper form. If the hearing examiner fails to make a
9determination as to allowing the substitution within 7 days, the hearing examiner
10shall refer the matter to the administrator of the division of hearings and appeals for
11the determination and reassignment of the hearing as necessary. If the written
12request is determined to be proper, the matter shall be transferred to another
13hearing examiner. Upon transfer, the hearing examiner shall transmit to the new
14hearing examiner all the papers in the matter.
AB655, s. 194 15Section 194. 227.45 (7) (intro.) of the statutes is renumbered 227.45 (7) and
16amended to read:
AB655,79,2517 227.45 (7) In any class 2 proceeding, each party shall have the right, prior to
18the date set for hearing, to take and preserve evidence as provided in ch. 804. Upon
19motion by a party or by the person from whom discovery is sought in any class 2
20proceeding, and for good cause shown, the hearing examiner may make any order in
21accordance with s. 804.01 which justice requires to protect a party or person from
22annoyance, embarrassment, oppression, or undue burden or expense. In any class
231 or class 3 proceeding, an agency may by rule permit the taking and preservation
24of evidence, but in every such proceeding the taking and preservation of evidence
25shall be permitted with respect to a witness:
AB655, s. 195
1Section 195. 227.45 (7) (a) to (d) of the statutes are repealed.
AB655, s. 196 2Section 196. 227.46 (1) (intro.) of the statutes is amended to read:
AB655,80,93 227.46 (1) (intro.) Except as provided under s. 227.43 (1), an agency may
4designate an official of the agency or an employee on its staff or borrowed from
5another agency under s. 20.901 or 230.047 as a hearing examiner to preside over any
6contested case. In hearings under s. 19.52, a reserve judge shall be appointed. A
7hearing examiner does not have authority to address or make decisions regarding
8possible constitutional issues.
Subject to rules of the agency, examiners presiding at
9hearings may:
AB655, s. 197 10Section 197. 227.46 (1) (h) of the statutes is amended to read:
AB655,80,1211 227.46 (1) (h) Make or recommend findings of fact, conclusions of law, and
12decisions to the extent permitted by law.
AB655, s. 198 13Section 198. 227.46 (2) of the statutes is repealed.
AB655, s. 199 14Section 199. 227.46 (2m) of the statutes is repealed.
AB655, s. 200 15Section 200. 227.46 (3) of the statutes is repealed.
AB655, s. 201 16Section 201. 227.46 (4) of the statutes is repealed.
AB655, s. 202 17Section 202. 227.46 (6) of the statutes is amended to read:
AB655,80,2418 227.46 (6) The functions of persons presiding at a hearing or participating in
19proposed or final decisions shall be performed in an impartial manner. A hearing
20examiner or agency official may at any time disqualify himself or herself. In class
212 and 3 proceedings, on the filing in good faith of a timely and sufficient affidavit of
22personal bias or other disqualification of a hearing examiner or official, the agency
23or hearing examiner shall determine the matter as part of the record and decision
24in the case.
AB655, s. 203 25Section 203. 227.47 (1) of the statutes is amended to read:
AB655,81,9
1227.47 (1) Except as provided in sub. (2), every proposed or final decision of an
2agency or hearing examiner following a hearing and every final decision of an agency
3shall be in writing accompanied by findings of fact and conclusions of law. The
4findings of fact shall consist of a concise and separate statement of the ultimate
5conclusions upon each material issue of fact without recital of evidence. Every
6proposed or final decision shall include a list of the names and addresses of all
7persons who appeared before the agency in the proceeding who are considered
8parties for purposes of review under s. 227.53. The agency shall by rule establish a
9procedure for determination of parties.
AB655, s. 204 10Section 204. 227.483 of the statutes is created to read:
AB655,81,15 11227.483 Costs upon frivolous claims. (1) If a hearing examiner finds, at
12any time during the proceeding, that an administrative hearing commenced or
13continued by a petitioner or a claim or defense used by a party is frivolous, the
14hearing examiner shall award the successful party his or her costs, as determined
15under s. 814.04, and reasonable attorney fees.
AB655,81,19 16(2) If the costs and fees awarded under sub. (1) are awarded against the party
17other than a public agency, those costs may be assessed fully against either the party
18or the attorney representing the party or may be assessed so that the party and the
19attorney each pay a portion of the costs and fees.
AB655,81,21 20(3) To find a petition for a hearing or a claim or defense to be frivolous under
21sub. (1), the hearing examiner must find at least one of the following:
AB655,81,2322 (a) That the petition, claim, or defense was commenced, used, or continued in
23bad faith, solely for purposes of harassing or maliciously injuring another.
AB655,82,224 (b) That the party or the party's attorney knew, or should have known, that the
25petition, claim, or defense was without any reasonable basis in law or equity and

1could not be supported by a good faith argument for an extension, modification, or
2reversal of existing law.
AB655, s. 205 3Section 205. 227.485 (5) of the statutes is amended to read:
AB655,82,164 227.485 (5) If the hearing examiner awards costs under sub. (3), he or she shall
5determine the costs under this subsection, except as modified under sub. (4). The
6decision on the merits of the case shall be placed in a proposed decision and
7submitted under ss. 227.47 and 227.48. The prevailing party shall submit, within
830 days after service of the proposed decision, to the hearing examiner and to the
9state agency which is the losing party an itemized application for fees and other
10expenses, including an itemized statement from any attorney or expert witness
11representing or appearing on behalf of the party stating the actual time expended
12and the rate at which fees and other expenses were computed. The state agency
13which is the losing party has 15 working days from the date of receipt of the
14application to respond in writing to the hearing examiner. The hearing examiner
15shall determine the amount of costs using the criteria specified in s. 814.245 (5) and
16include an order for payment of costs in the final decision.
AB655, s. 206 17Section 206. 227.53 (1) (a) 3. of the statutes is amended to read:
AB655,83,618 227.53 (1) (a) 3. If the petitioner is a resident, the proceedings shall be held in
19the circuit court for the county where the petitioner resides, except that if the
20petitioner is an agency, the proceedings shall be in the circuit court for the county
21where the respondent resides and except as provided in ss. 73.0301 (2) (b) 2., 77.59
22(6) (b), 182.70 (6), and 182.71 (5) (g). The proceedings shall be in the circuit court for
23Dane County if
If the petitioner is a nonresident , the proceedings shall be held in the
24county where the property affected by the decision is located or, if no property is
25affected, in the county where the dispute arose
. If all parties stipulate and the court

1to which the parties desire to transfer the proceedings agrees, the proceedings may
2be held in the county designated by the parties. If 2 or more petitions for review of
3the same decision are filed in different counties, the circuit judge for the county in
4which a petition for review of the decision was first filed shall determine the venue
5for judicial review of the decision, and shall order transfer or consolidation where
6appropriate.
AB655, s. 207 7Section 207. 227.57 (11) of the statutes is created to read:
AB655,83,108 227.57 (11) If the decision of the hearing examiner is inconsistent with the
9position taken at the hearing by the agency, the court shall give no deference to the
10examiner's decision when conducting its review.
AB655, s. 208 11Section 208. 236.16 (3) (d) (intro.) of the statutes is amended to read:
AB655,83,2312 236.16 (3) (d) (intro.) All of the owners of all of the land adjacent to a public
13access established under par. (a) to an inland lake, as defined in s. 30.92 (1) (bk), may
14petition the city, village, town or county that owns the public access to construct
15shoreline erosion control measures. Subject to par. (e), the city, village, town or
16county shall construct the requested shoreline erosion control measures or request
17the department of natural resources to determine the need for shoreline erosion
18control measures. Upon receipt of a request under this paragraph from a city, village,
19town or county, the department of natural resources shall follow the notice and
20hearing
procedures in s. 30.02 (3) and (4) 30.208 (3) to (5). Subject to par. (e), the city,
21village, town or county shall construct shoreline erosion control measures as
22required by the department of natural resources if the department of natural
23resources determines all of the following:
AB655, s. 209 24Section 209. 241.02 (3) of the statutes is created to read:
AB655,83,2525 241.02 (3) (a) In this subsection:
AB655,84,3
11. "Affiliate" of a bank, savings bank, or savings and loan association means
2a business entity that controls, is controlled by, or is under common control with the
3bank, savings bank, or savings and loan association.
AB655,84,64 2. "Financial institution" means a bank, savings bank, or savings and loan
5association organized under the laws of this state, another state, or the United States
6and any affiliate of such a bank, savings bank, or savings and loan association.
AB655,84,117 (b) Except as provided in par. (d), no action may be commenced against a
8financial institution on or in connection with any of the following promises or
9commitments of the financial institution unless the promise or commitment is in
10writing, sets forth relevant terms and conditions, and is signed by the financial
11institution:
AB655,84,1312 1. A promise or commitment to lend money, grant or extend credit, or make any
13other financial accommodation.
AB655,84,1614 2. A promise or commitment to renew, extend, modify, or permit a delay in
15repayment or performance of a loan, extension of credit, or other financial
16accommodation.
AB655,84,1917 (c) Except as provided in par. (d), a promise or commitment by a financial
18institution described in par. (b) may not be enforced under the doctrine of promissory
19estoppel.
AB655,84,2120 (d) Paragraphs (b) and (c) do not apply to credit transactions that are subject
21to chs. 421 to 427.
AB655, s. 210 22Section 210. 281.22 (2) (c) of the statutes is amended to read:
AB655,84,2523 281.22 (2) (c) If more than one fee under this section or s. 30.28 (2) (a) or 31.39
24(2) (a) is applicable to a project, the department shall charge only the highest fee of
25those that are applicable.
AB655, s. 211
1Section 211. 285.01 (12m) of the statutes is created to read:
AB655,85,32 285.01 (12m) "Certified contractor" means a contractor that is certified under
3s. 285.755.
AB655, s. 212 4Section 212. 285.11 (6) (intro.) of the statutes is renumbered 285.11 (6) and
5amended to read:
AB655,85,156 285.11 (6) Prepare and develop one or more comprehensive plans for the
7prevention, abatement and control of air pollution in this state. The department
8thereafter shall be responsible for the revision and implementation of the plans. The
9rules or control strategies submitted to the federal environmental protection agency
10under the federal clean air act for control of atmospheric ozone shall conform with
11the federal clean air act unless, based on the recommendation of the natural
12resources board or the head of the department, as defined in s. 15.01 (8), of any other
13department, as defined in s. 15.01 (5), that promulgates a rule or establishes a control
14strategy, the governor determines that measures beyond those required by the
15federal clean air act meet any of the following criteria:
AB655, s. 213 16Section 213. 285.11 (6) (a) and (b) of the statutes are repealed.
AB655, s. 214 17Section 214. 285.11 (9) of the statutes is amended to read:
AB655,85,1918 285.11 (9) Prepare and adopt minimum standards for the emission of mercury
19compounds or metallic mercury into the air, consistent with s. 285.27 (2) (b).
AB655, s. 215 20Section 215. 285.11 (17) of the statutes is repealed and recreated to read:
AB655,86,621 285.11 (17) Promulgate rules that incorporate changes made by regulations of
22the federal environmental protection agency governing review of modifications of
23major sources under 42 USC 7470 to 7515, including regulations that were published
24in the Federal Register on December 31, 2002, and October 27, 2003. The
25department may not include in the rules any requirements that are inconsistent with

1or more stringent than the federal regulations. To the extent possible, the
2department shall incorporate similar changes for minor sources if the changes
3reduce administrative requirements for minor sources. The department shall
4submit in proposed form rules required under this subsection to the legislative
5council staff under s. 227.15 (1) no later than the first day of the 7th month after the
6regulations making the changes on which the rules are based take effect.
AB655, s. 216 7Section 216. 285.14 of the statutes is created to read:
AB655,86,13 8285.14 State implementation plans. (1) Content. The department may
9only include in a state implementation plan under 42 USC 7410 rules or
10requirements that are necessary to obtain approval of the plan by the federal
11environmental protection agency, including requirements that are necessary in
12order to comply with the percentage reductions specified in 42 USC 7511a (b) (1) (A)
13or (c) (2) (B).
AB655,87,5 14(2) Review by committee for review of administrative rules. At least 90 days
15before the department is required to submit a state implementation plan to the
16federal environmental protection agency, the department shall prepare and submit
17a report to the joint committee for review of administrative rules that describes the
18proposed plan and contains all of the supporting documents that the department
19intends to submit with the plan. If, within 30 days after the department submits the
20report, the cochairpersons of the joint committee for review of administrative rules
21do not return the report to the department with a written explanation of why the
22committee is returning the report, the department may submit the plan. If, within
2330 days after the department submits the report, the cochairpersons of the joint
24committee for review of administrative rules return the report to the department
25with a written explanation of why the committee is returning the report, the

1department may not submit the plan until the committee agrees that the department
2has adequately addressed the issues raised by the committee. If the secretary
3disagrees with the committee's reasons for returning the report, the secretary shall
4so notify the committee in writing. This subsection does not apply to a modification
5to a state implementation plan relating to an individual source.
AB655, s. 217 6Section 217. 285.17 (2) of the statutes is amended to read:
AB655,87,217 285.17 (2) The department may, by rule or in an operation permit, require the
8owner or operator of an air contaminant source to monitor the emissions of the air
9contaminant source or to monitor the ambient air in the vicinity of the air
10contaminant source and to report the results of the monitoring to the department.
11The department may specify methods for conducting the monitoring and for
12analyzing the results of the monitoring. The department shall require the owner or
13operator of a major source to report the results of any required monitoring of
14emissions from the major source to the department no less often than every 6 months.
15The department may not include a monitoring requirement in an operation permit
16if the applicant demonstrates that the cost of compliance with the requirement would
17exceed the cost of compliance with monitoring requirements imposed on similar air
18contaminant sources by a state adjacent to this state or if the monitoring is not
19needed to provide assurance of compliance with requirements that apply to the air
20contaminant source, unless the monitoring is required under the federal clean air
21act.
AB655, s. 218 22Section 218. 285.21 (1) (a) (title) of the statutes is repealed.
AB655, s. 219 23Section 219. 285.21 (1) (a) of the statutes is renumbered 285.21 (1) and
24amended to read:
AB655,88,4
1285.21 (1) Ambient air quality standards. If an ambient air quality standard
2is promulgated under section 109 of the federal clean air act, the department shall
3promulgate by rule a similar standard but this standard may not be more restrictive
4than the federal standard except as provided under sub. (4).
AB655, s. 220 5Section 220. 285.21 (1) (b) of the statutes is repealed.
AB655, s. 221 6Section 221. 285.21 (2) of the statutes is amended to read:
AB655,88,117 285.21 (2) Ambient air increment. The department shall promulgate by rule
8ambient air increments for various air contaminants in attainment areas. The
9ambient air increments shall be consistent with and not more restrictive, either in
10terms of the concentration or the contaminants to which they apply, than ambient
11air increments under the federal clean air act except as provided under sub. (4).
AB655, s. 222 12Section 222. 285.21 (4) of the statutes is amended to read:
AB655,88,1713 285.21 (4) Impact of change in federal standards. If the ambient air
14increment or the ambient air quality standards in effect on April 30, 1980, under the
15federal clean air act are relaxed modified, the department shall alter the
16corresponding state standards unless it finds that the relaxed standards would not
17provide adequate protection for public health and welfare
accordingly.
AB655, s. 223 18Section 223. 285.23 (1) of the statutes is amended to read:
AB655,88,2519 285.23 (1) Procedures and criteria. The department shall promulgate by rule
20procedures and criteria to identify a nonattainment area and to reclassify a
21nonattainment area as an attainment area. The department may not identify a
22county as part of a nonattainment area if the the concentration of an air contaminant
23in the atmosphere does not exceed an ambient air quality standard, unless the
24department is required under the federal clean air act to identify the county as part
25of a nonattainment area.
AB655, s. 224
1Section 224. 285.23 (5) of the statutes is created to read:
AB655,89,72 285.23 (5) Particulate standards. The department may not identify an area
3as a nonattainment area based on the concentration in the atmosphere of particulate
4matter measured as total suspended particulates and shall redesignate as an
5attainment area any area identified as a nonattainment area if the only basis on
6which the area could be identified as a nonattainment area is the concentration in
7the atmosphere of particulate matter measured as total suspended particulates.
AB655, s. 225 8Section 225. 285.23 (6) of the statutes is created to read:
AB655,89,259 285.23 (6) Report to the joint committee for review of administrative rules.
10Before the department issues documents under sub. (2) and at least 90 days before
11the governor is required to make a submission on a nonattainment designation
12under 42 USC 7407 (d) (1) (A), the department shall prepare and submit a report to
13the joint committee for review of administrative rules that contains a description of
14any area proposed to be identified as a nonattainment area and supporting
15documentation. If the department has complied with sub. (4) and if, within 30 days
16after the department submits the report, the cochairpersons of the joint committee
17for review of administrative rules do not return the report to the department with
18a written explanation of why the committee is returning the report, the department
19may issue the documents under sub. (2) and the governor may make the submission.
20If, within 30 days after the department submits the report, the cochairpersons of the
21joint committee for review of administrative rules return the report to the
22department with a written explanation of why the committee is returning the report,
23the department may not issue the documents under sub. (2) and the governor may
24not make the submission until the committee agrees that the department has
25adequately addressed the issues raised by the committee.
AB655, s. 226
1Section 226. 285.27 (1) (a) of the statutes is amended to read:
AB655,90,92 285.27 (1) (a) Similar to federal Federal standard. If a standard of performance
3for new stationary sources is promulgated under section 111 of the federal clean air
4act, the department shall promulgate by a rule a similar that incorporates that
5emission standard but this standard and related administrative requirements. The
6department
may not be promulgate a rule under this paragraph that is more
7restrictive in terms of emission limitations or otherwise more burdensome to persons
8operating sources affected by the emission standard
than the federal standard and
9related requirements
except as provided under sub. (4).
AB655, s. 227 10Section 227. 285.27 (2) (a) of the statutes is amended to read:
AB655,90,1811 285.27 (2) (a) Similar to federal Federal standard. If an emission standard for
12a hazardous air contaminant is promulgated under section 112 of the federal clean
13air act, the department shall promulgate by a rule a similar that incorporates that
14emission
standard but this standard and related administrative requirements. The
15department
may not be promulgate a rule under this paragraph that is more
16restrictive in terms of emission limitations or otherwise more burdensome to persons
17operating sources affected by the emission standard
than the federal standard and
18related requirements
except as provided under sub. (4).
AB655, s. 228 19Section 228. 285.27 (2) (b) of the statutes is renumbered 285.27 (2) (b) (intro.)
20and amended to read:
AB655,91,221 285.27 (2) (b) Standard to protect public health or welfare. (intro.) If an
22emission standard for a hazardous air contaminant is not promulgated under section
23112 of
the federal clean air act, the department may promulgate an emission
24standard for the hazardous air contaminant if the department finds the standard is
25needed to provide adequate protection for public health or welfare. The department

1may not make a finding for a hazardous air contaminant unless the finding is
2supported with written documentation that includes all of the following:
AB655, s. 229 3Section 229. 285.27 (2) (b) 1. to 3. of the statutes are created to read:
AB655,91,64 285.27 (2) (b) 1. A public health risk assessment that characterizes the
5stationary sources in this state that are known to emit the hazardous air
6contaminant and the individuals who are potentially at risk from the emissions.
AB655,91,97 2. An analysis showing that identified individuals are subjected to inhalation
8levels of the hazardous air contaminant that are above recognized environmental
9health standards.
AB655,91,1310 3. An evaluation of options for managing the risks caused by the hazardous air
11contaminant considering risks, costs, economic impacts, feasibility, energy, safety,
12and other relevant factors, and a finding that the chosen compliance alternative
13reduces risks in the most cost-effective manner practicable.
AB655, s. 230 14Section 230. 285.27 (2) (d) of the statutes is created to read:
AB655,91,2215 285.27 (2) (d) Emissions regulated under federal law. Emissions limitations
16promulgated under par. (b) and related control requirements do not apply to
17hazardous air contaminants emitted by emissions units, operations, or activities
18that are regulated by an emission standard promulgated under the federal clean air
19act, including a hazardous air contaminant that is regulated under the federal clean
20air act by virtue of regulation of another substance as a surrogate for the hazardous
21air contaminant or by virtue of regulation of a species or category of hazardous air
22contaminants that includes the hazardous air contaminant.
AB655, s. 231 23Section 231. 285.27 (4) of the statutes is amended to read:
AB655,92,924 285.27 (4) Impact of change in federal standards. If the standards of
25performance for new stationary sources or the emission standards for hazardous air

1contaminants under the federal clean air act are relaxed, the department shall alter
2the corresponding state standards unless it finds that the relaxed standards would
3not provide adequate protection for public health and welfare. The department may
4not make this finding for an emission standard for a hazardous air contaminant
5unless the finding is supported with the written documentation required under sub.
6(2) (b) 1. to 3.
This subsection applies to state standards of performance for new
7stationary sources and emission standards for hazardous air contaminants in effect
8on April 30, 1980, if the relaxation in the corresponding federal standards occurs
9after April 30, 1980.
AB655, s. 232 10Section 232. 285.60 (1) (a) 1. of the statutes is amended to read:
AB655,92,1411 285.60 (1) (a) 1. Except as provided in sub. (2g), (3) (c), (5m), (6), (6m), or (6r),
12no person may commence construction, reconstruction, replacement or modification
13of a stationary source unless the person has a construction permit from the
14department.
AB655, s. 233 15Section 233. 285.60 (1) (b) 1. of the statutes is amended to read:
AB655,92,1816 285.60 (1) (b) 1. Except as provided in subd. 2., par. (a) 2., sub. (2g), (6), or (6m),
17or s. 285.62 (8), no person may operate a new source or a modified source unless the
18person has an operation permit under s. 285.62 from the department.
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