285.73(4)(a)(a) If the department has reason to believe that a program in force pursuant to this section is inadequate to prevent and control air pollution in the jurisdiction to which such program relates, or that such program is being administered in a manner inconsistent with the requirements of this chapter, the department shall, on due notice, conduct a hearing on the matter.
285.73(4)(b)
(b) If, after such hearing, the department determines that a program is inadequate to prevent and control air pollution in the county to which such program relates, or that such program is not accomplishing the purposes of this chapter, it shall require that necessary corrective measures be taken within a reasonable period of time, not to exceed 60 days.
285.73(4)(c)
(c) If the county fails to take such necessary corrective action within the time required, the department shall administer within such county all of the regulatory provisions of this chapter. Such air pollution control program shall supersede all county air pollution regulations, ordinances and requirements in the affected jurisdiction.
285.73(5)
(5) Any county in which the department administers its air pollution control program under
sub. (4) may, with the approval of the department, resume a county air pollution control program which meets the requirements of
sub. (1).
285.73(6)
(6) Nothing in this chapter supersedes the jurisdiction of any county air pollution control program in operation on July 26, 1967, but any such program shall meet all requirements of this chapter for a county air pollution control program. Any approval required from the department shall be deemed granted unless the department takes specific action to the contrary.
285.73 History
History: 1973 c. 90;
1979 c. 34 s.
2102 (39) (g);
1995 a. 227 s.
506; Stats. 1995 s. 285.73.
285.73 Cross-reference
Cross-reference: See also ch.
NR 403, Wis. adm. code.
285.75
285.75
County program. Instead of state review of plans and specifications, the department may authorize counties which are administering approved air pollution control programs to review and approve plans, specifications and permits of air contaminant sources being constructed, modified or operated within the jurisdiction of these counties.
285.75 History
History: 1979 c. 34;
1995 a. 227 s.
501; Stats. 1995 s. 285.75.
285.75 Cross-reference
Cross-reference: See also ch.
NR 403, Wis. adm. code.
285.76
285.76
Notice concerning proposed area redesignations. 285.76(1)(1) Within 5 days after the department receives notification that an American Indian tribal governing body proposes to redesignate an area under
42 USC 7474 for the purpose of the federal clean air act provisions concerning the prevention of significant deterioration of air quality and that a consultation meeting is requested among the tribal governing body, the federal environmental protection agency and this state, the department shall report that notification to the appropriate standing committees of the legislature, as determined by the speaker of the assembly and the president of the senate, under
s. 13.172 (3).
285.76(2)
(2) Within 15 days after receiving notification that an American Indian tribal governing body proposes to redesignate an area under
42 USC 7474 for the purpose of the federal clean air act provisions concerning the prevention of significant deterioration of air quality, the department shall do all of the following:
285.76(2)(a)
(a) Publish a class 1 notice, under
ch. 985, of the proposed redesignation and request for consultation with the state in a newspaper of general circulation in the area that would be affected by the redesignation, as determined using standards established by the federal environmental protection agency, and in the official state newspaper and provide a written statement concerning the proposed redesignation to those newspapers.
285.76(2)(b)
(b) Report that notification to the governor, and to the agency responsible for administering air pollution control laws, of any other state with an area that would be affected by the redesignation, as determined using standards established by the federal environmental protection agency.
285.76(3)
(3) Within 15 days after receiving notification of the time and place of a public hearing under
42 USC 7474 (b) (1) (A) concerning a proposal by an American Indian tribal governing body to redesignate an area, the department shall provide notice of the time and place of the public hearing in the manner provided in
subs. (1) and
(2) (a). If the department receives notification of a hearing at the same time that it receives notification of the proposed redesignation, it shall combine the newspaper notices under this subsection with the notices under
sub. (2) (a).
285.76(4)
(4) The department shall submit a report to the appropriate standing committees of the legislature, as determined by the speaker of the assembly and the president of the senate, under
s. 13.172 (3), on the results of any consultations, under
40 CFR 52.21 (g) (4) (ii), with an American Indian tribal governing body that proposes to redesignate an area under
42 USC 7474.
285.76 History
History: 1997 a. 270.
285.77
285.77
Machinery use. The department may not require the use of machinery, devices or equipment from a particular supplier or produced by a particular manufacturer, if the required performance standards may be met by machinery, devices or equipment otherwise available.
285.77 History
History: 1979 c. 34;
1987 a. 27; Stats. 1987 s. 144.404;
1995 a. 227 s.
503; Stats. 1995 s. 285.77.
285.78
285.78
Registration of early emission reductions. 285.78(1)(a)
(a) "Carbon reserve" means any system that takes in and stores more carbon from the atmosphere than it releases to the atmosphere.
285.78(1)(b)
(b) "Fine particulate matter" means solid or liquid particles with a diameter less than or equal to 2.5 micrometers or emissions that are precursors to solid or liquid particles with a diameter less than or equal to 2.5 micrometers.
285.78(1)(c)
(c) "Greenhouse gas" means carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride or any other gas that traps heat in the atmosphere.
285.78(2)(a)(a) The department shall establish and operate a system under which the department registers reductions in emissions of greenhouse gases if the reductions are made before the reductions are required by law. Under the system, the department may register carbon sequestration from the creation or preservation of carbon reserves and may register avoided emissions resulting from energy efficiency measures and from the use of renewable energy sources. Under the system, the department may not register a reduction in emissions of greenhouse gases if the reduction was made before January 1, 1991.
285.78(2)(b)
(b) The department may establish and operate systems under which the department registers reductions in emissions of fine particulate matter, mercury or other air contaminants identified by the department if the reductions are made before the reductions are required by law.
285.78(2)(c)
(c) The department may verify and quantify, or require the verification and quantification of, emission reductions that a person seeks to register under
par. (a) or
(b).
285.78(2)(d)
(d) Registration of emission reductions under this section is voluntary.
285.78(3)(a)(a) The department shall promulgate rules for the system under
sub. (2) (a). In promulgating the rules, the department shall make the system as consistent as possible with other state, federal and international programs designed to reduce emissions of greenhouse gases.
285.78(3)(b)
(b) The department shall promulgate rules for any system that the department establishes under
sub. (2) (b). In promulgating the rules, the department shall make the system as consistent as possible with other state, federal and international programs designed to reduce emissions of the substances covered by the system.
285.78 History
History: 1999 a. 195.
285.79
285.79
Small business stationary source technical and environmental compliance assistance program. 285.79(1)(1)
Definition. In this section, "small business stationary source" means a stationary source designated under
sub. (2) (a) or, except as provided in
sub. (2) (b), a stationary source that satisfies all of the following criteria:
285.79(1)(a)
(a) Is owned or operated by a person that employs 100 or fewer individuals.
285.79(1)(c)
(c) Is not a major stationary source, as defined in rules promulgated by the department.
285.79(1)(d)
(d) Does not emit 50 tons or more per year of any regulated pollutant.
285.79(1)(e)
(e) Emits a total of less than 75 tons per year of all regulated pollutants.
285.79(2)(a)(a) In response to a petition by a stationary source, the department may, by rule, designate as a small business stationary source any stationary source that does not meet the criteria of
sub. (1) (c),
(d) or
(e) but that does not emit a total of more than 100 tons per year of all regulated pollutants.
285.79(2)(b)
(b) The department may, by rule, after consultation with the administrators of the federal environmental protection agency and the federal small business administration, exclude from the definition of small business stationary source any category or subcategory of stationary source that the department determines to have sufficient technical and financial capabilities to meet the requirements of the federal clean air act without the assistance provided under this section.
285.79(3)
(3) Assistance program. The department shall, in cooperation with the small business ombudsman clearinghouse under
s. 560.03 (9), develop and administer a small business stationary source technical and environmental compliance assistance program. The program shall include all of the following:
285.79(3)(a)
(a) Mechanisms to develop, collect and coordinate information concerning methods and technologies that small business stationary sources can use to comply with the federal clean air act and programs to encourage lawful cooperation among small business stationary sources or other persons to further compliance with the federal clean air act.
285.79(3)(b)
(b) Mechanisms for providing small business stationary sources with information concerning alternative technologies, process changes, products and methods of operation that help reduce air pollution and with other assistance in pollution prevention and accidental release detection and prevention.
285.79(3)(c)
(c) A compliance assistance program that assists small business stationary sources in determining applicable requirements under this chapter and
s. 299.15 and in receiving air pollution control permits in a timely and efficient manner.
285.79(3)(d)
(d) Mechanisms to ensure that small business stationary sources receive notice of their rights under the federal clean air act and state laws implementing the federal clean air act in a manner and form that assures reasonably adequate time for small business stationary sources to evaluate compliance methods and any relevant or applicable proposed or final regulation or standard issued under the federal clean air act.
285.79(3)(e)
(e) Mechanisms for referring small business stationary sources to qualified auditors to determine compliance with the federal clean air act and state laws implementing the federal clean air act and other mechanisms for informing small business stationary sources of their obligations under the federal clean air act and state laws.
285.79(3)(f)
(f) Procedures for consideration of a request from a small business stationary source for alteration of any required work practice or technological method of compliance with this chapter or of the schedule of measures that must be taken to implement a required work practice or method of compliance before an applicable compliance date, based on the technological and financial capability of the small business stationary source.
285.79(4)
(4) Granting alterations. The department may not grant an alteration under
sub. (3) (f) unless the alteration complies with the requirements of the federal clean air act and any applicable plan under
s. 285.11 (6). If those applicable requirements are set forth in federal regulations, the department may only grant alterations authorized in those regulations.
285.79 History
History: 1991 a. 302;
1995 a. 227 s.
462; Stats. 1995 s. 285.79.
285.79 Cross-reference
Cross-reference: See also ch.
NR 437, Wis. adm. code.
ENFORCEMENT; PENALTIES
285.81
285.81
Hearings on certain air pollution actions. 285.81(1)(1)
Permit holder; permit applicant; order recipient. Any permit, part of a permit, condition or requirement in a permit, order, decision or determination by the department under
ss. 285.39,
285.60 to
285.69 or
285.75 shall become effective unless the permit holder or applicant or the order recipient seeks a hearing challenging the action in the following manner:
285.81(1)(a)
(a)
Petition. The person seeking a hearing shall file a petition with the department within 30 days after the date of the action sought to be reviewed. The petition shall set forth specifically the issue sought to be reviewed, the interest of the petitioner, the reasons why a hearing is warranted and the relief desired. Upon receipt of the petition, the department shall hold a hearing after at least 10 days' notice.
285.81(1)(b)
(b)
Hearing. The hearing shall be a contested case under
ch. 227. At the beginning of the hearing the petitioner shall present evidence in support of the allegations made in the petition. Following the hearing the department's action may be affirmed, modified or withdrawn.
285.81(1m)(a)(a) Subject to
par. (b), if a permit holder or applicant seeks a hearing challenging part of a permit or a condition or requirement in a permit under
sub. (1), the remainder of the permit shall become effective and the permit holder or applicant may, at its discretion, begin the activity for which the application was submitted or for which the permit was issued.
285.81(1m)(b)
(b) An emission limitation contained in a construction permit becomes effective despite a challenge under
par. (a), unless the permit holder or applicant challenging the emission limitation obtains a stay of the emission limitation from the hearing examiner or court considering the challenge.
285.81(2)
(2) Other persons. Any person who is not entitled to seek a hearing under
sub. (1) (intro.) and who meets the requirements of
s. 227.42 (1) or who submitted comments in the public comment process under
s. 285.62 (4) or
(5) may seek review under
sub. (1) of any permit, part of a permit, order, decision or determination by the department under
ss. 285.39,
285.60 to
285.69 or
285.75.
285.81(3)
(3) Mining hearing. Subsections (1) and
(2) do not apply if a hearing on the matter is conducted as a part of a hearing under
s. 293.43.
285.81(4)
(4) Review of department determinations. An air pollution control permit, part of an air pollution control permit or determination by the department under
ss. 285.39,
285.60 to
285.69 or
285.75 is not subject to review in any civil or criminal enforcement action for a violation of this chapter. This subsection does not restrict the ability of a person to challenge an administrative rule as provided in
s. 227.40 (2).
285.81 Annotation
This section permits the persons identified in subs. (1) and (2) to challenge only a part of a permit, or only certain conditions or requirements. It does not address when a decision issued by an administrative law judge after the administrative hearing is final. Sierra Club v. Department of Natural Resources, 2007 WI App 181,
304 Wis. 2d 614,
736 N.W.2d 918,
06-2653.
285.81 Annotation
Sub. (4) provides in unequivocal terms that enumerated permits and determinations are not subject to review. U.S. v. Murphy Oil USA, Inc.
143 F. Supp. 2d 1054 (2001).
285.83
285.83
Violations: enforcement. 285.83(1)(a)(a) If the department has reason to believe that a violation of this chapter or
s. 299.15 or any rule promulgated or special order, plan approval or permit issued under this chapter or
s. 299.15 has occurred, it may:
285.83(1)(a)1.
1. Cause written notice to be served upon the alleged violator. The notice shall specify the alleged violation, and contain the findings of fact on which the charge of violation is based. The notice may include an order that necessary corrective action be taken within a reasonable time. This order shall become effective unless, no later than 30 days after the date the notice and order are served, the person named in the notice and order requests in writing a hearing before the department. Upon such request, the department shall after due notice hold a hearing. Instead of an order, the department may require that the alleged violator appear before the department for a hearing at a time and place specified in the notice and answer the charges complained of; or
285.83(1)(b)
(b) If after such hearing the department finds that a violation has occurred, it shall affirm or modify its order previously issued, or issue an appropriate order for the prevention, abatement or control of the problems involved or for the taking of such other corrective action as may be appropriate. If the department finds that no violation has occurred, it shall rescind its order. Any order issued as part of a notice or after hearing may prescribe one or more dates by which necessary action shall be taken in preventing, abating or controlling the violation.
285.83(2)
(2) The notice under
sub. (1) (a) 1. for an alleged violation of rules promulgated under
s. 285.31 (3) may include a tag or other notice placed on the dispensing equipment that is alleged to be in violation of rules promulgated under
s. 285.31 (3).
285.83 History
History: 1971 c. 125 s.
522 (2);
1977 c. 377;
1979 c. 34 s.
980h;
1979 c. 221 s.
2202 (39); Stats. 1979 s. 144.423;
1989 a. 284;
1991 a. 39;
1995 a. 227 s.
510; Stats. 1995 s. 285.83.
285.83 Cross-reference
Cross-reference: See also chs.
NR 493 and
494, Wis. adm. code.
285.85
285.85
Emergency procedure. 285.85(1)(1) If the secretary finds that a generalized condition of air pollution exists and that it creates an emergency requiring immediate action to protect human health or safety, he or she shall order persons causing or contributing to the air pollution to reduce or discontinue immediately the emission of air contaminants, and such order shall fix a place and time, not later than 24 hours thereafter, for a hearing to be held before the department. Not more than 24 hours after the commencement of such hearing, and without adjournment thereof, the natural resources board shall affirm, modify or set aside the order of the secretary.
285.85(2)
(2) In the absence of a generalized condition of air pollution of the type referred to in
sub. (1), if the secretary finds that emissions from the operation of one or more air contaminant sources is causing imminent danger to human health or safety, he or she may order the persons responsible for the operations in question to reduce or discontinue emissions immediately, without regard to
s. 285.83. In such event, the requirements for hearing and affirmance, modification or setting aside of orders set forth in
sub. (1) shall apply.
285.85 History
History: 1979 c. 34 ss.
983m,
2102 (39) (g);
1979 c. 176; Stats. 1979 s. 144.424;
1995 a. 227 s.
511; Stats. 1995 s. 285.85.
285.85 Cross-reference
Cross-reference: See also ch.
NR 493, Wis. adm. code.
285.86
285.86
Asbestos citations. 285.86(1)(1) The department may follow the procedures for the issuance of a citation under
ss. 23.50 to
23.99 to collect a forfeiture from a person who commits a violation specified under
sub. (2).
285.86(2)
(2) The department shall promulgate rules that specify violations of rules relating to asbestos abatement and management that are promulgated under
ss. 285.11,
285.13,
285.17 and
285.27 to which
sub. (1) applies. In a rule promulgated under this subsection, the department may limit the applicability of
sub. (1) based on the frequency of violation and on health and environmental risks caused by the violation.
285.86(3)
(3) The department shall submit any proposed rules under
sub. (2) to the department of justice. The department may not promulgate a rule under
sub. (2) unless the rule is approved by the department of justice.
285.86 History
History: 1999 a. 9.
