Chapter 285

285.73(3) (3) If the department finds that the location, character or extent of particular concentrations of population, air contaminant sources, the geographic, topographic or meteorological considerations, or any combinations thereof, are such as to make impracticable the maintenance of appropriate levels of air quality without an area-wide air pollution control program, the department may determine the boundaries within which such program is necessary and require it.

285.73(4) (4) 

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. The notices published under this paragraph shall include information on how to locate the redesignation proposal on the department’s Internet website.

285.76(2)(am) (am) Publish notice of the proposed redesignation and request for consultation with the state on the department’s Internet website.

285.76(2)(ar) (ar) Provide to interested persons, upon request, notice of the proposed redesignation and request for consultation with the state. The notice may be given through an electronic notification system established by the department. The notice shall include information indicating where the redesignation proposal may be viewed on the department’s Internet website.

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(2m) (2m) For the purpose of determining the date on which notice of the proposed redesignation and request for consultation with the state is provided under sub. (2), the date on which the department first publishes the notice on its Internet website shall be considered the date of notice.

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) and by publication of the notice on the department’s Internet website. If the department receives notification of a hearing at the same time that it receives notification of the proposed redesignation, it shall combine the notices under this subsection with the notices under sub. (2) (a) and (am).

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; 2011 a. 167; 2017 a. 365 s. 112.

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) (1) In this section:

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) (2) 

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) (3) 

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)(b) (b) Is a small business concern, as determined under 15 USC 632 (a).

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) (2) Designations and exclusions.

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 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; 2011 a. 32.

285.79 Cross-reference Cross-reference: See also ch. NR 437, Wis. adm. code.

285.795 285.795 Small business environmental council.

285.795(1) (1) The small business environmental council shall do all of the following:

285.795(1)(a) (a) Advise the department concerning the effectiveness of the small business stationary source technical and environmental compliance assistance program under s. 285.79, difficulties encountered by small business stationary sources, as defined in s. 285.79 (1), in complying with s. 299.15 and ch. 285 and the degree and severity of enforcement of s. 299.15 and ch. 285 against small business stationary sources.

285.795(1)(c) (c) Review information to be provided to small business stationary sources in connection with s. 299.15 and ch. 285 to ensure that the information can be understood by persons without technical training.

285.795(1)(d) (d) Provide other advice, as directed by the secretary, related to assisting small businesses in complying with federal and state air pollution laws.

285.795(2) (2) The employees of the department who staff the small business stationary source technical and environmental compliance assistance program under s. 285.79 shall provide the small business environmental council with the assistance necessary to comply with sub. (1).

285.795 History History: 1991 a. 302; 1995 a. 227; 2007 a. 125; 2011 a. 32 s. 3334b; Stats. 2011 s. 285.795.

subch. IX of ch. 285 SUBCHAPTER IX

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) (1m) Effect of a challenge.

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 History History: 1979 c. 34, 221; 1985 a. 182 s. 57; 1991 a. 302; 1995 a. 227 s. 502; Stats. 1995 s. 285.81; 2003 a. 118; 2005 a. 28.

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) (1) 

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)(a)2. 2. Initiate action under s. 285.59 (8) or 285.87.

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.