Chapter 285

285.62(2)(b)2. 2. If the department indicates to an applicant within the time provided in par. (a) 1. that additional information is needed but the department does not indicate to the applicant within the time provided in par. (a) 2. that additional information provided is deficient, the application is considered to be complete for the purposes of the time limit in sub. (7) (b) 15 days after receipt of the additional information.

285.62(2)(b)3. 3. If neither subd. 1. nor subd. 2. applies, an application is considered to be complete for the purposes of the time limit in sub. (7) (b) when the department notifies the applicant under par. (a) 2. that the additional information provided by the applicant satisfies the department’s request.

285.62(2)(b)4. 4. This paragraph does not prevent the department from requesting additional information from an applicant after the time limit in par. (a) 1. or 2.

285.62(3) (3) Review; notice; publication.

285.62(3)(a) (a) The department shall review an application for an operation permit. Upon completion of that review, the department shall prepare a preliminary determination of whether it may approve the application and a public notice. The public notice shall include all of the following:

285.62(3)(a)1. 1. A brief description of the stationary source.

285.62(3)(a)1g. 1g. The name and address of the applicant.

285.62(3)(a)1m. 1m. Information indicating where the application may be viewed on the department’s Internet website.

285.62(3)(a)2. 2. The department’s preliminary determination of whether it may approve the application.

285.62(3)(a)3. 3. Notice of the opportunity for public comment and the date by which comments must be submitted to the department.

285.62(3)(a)4. 4. Notice of the opportunity to request a public hearing.

285.62(3)(a)5. 5. Any other information that the department determines is necessary to inform the public about the application.

285.62(3)(b) (b) The department shall provide the notice prepared under par. (a) to all of the following:

285.62(3)(b)1. 1. The applicant.

285.62(3)(b)2. 2. Any local air pollution control agency that has a program under s. 285.73 that is approved by the department and that has jurisdiction over the area in which the stationary source is located.

285.62(3)(b)3. 3. Any regional planning agency, any county planning agency and any public library located in the area that may be affected by emissions from the stationary source.

285.62(3)(b)4. 4. Any person or group that requests the notice.

285.62(3)(b)5. 5. Any city, village, town or county that has jurisdiction over the area in which the stationary source is located.

285.62(3)(b)6. 6. If required by the federal clean air act, the federal environmental protection agency.

285.62(3)(b)7. 7. If required by the federal clean air act, any state that is within 50 miles of the stationary source and any state that is contiguous to this state and whose air quality may be affected by emissions from the stationary source.

285.62(3)(c) (c) The department shall publish the notice prepared under par. (a) as a class 1 notice under ch. 985 in a newspaper published in the area that may be affected by emissions from the stationary source, shall publish the notice on its Internet website, and, upon request, shall provide notice to interested persons. The department’s notice to interested persons may be given through an electronic notification system established by the department. For the purpose of determining the date on which public notice is provided under this paragraph, the date on which the department first publishes the notice on its Internet website shall be considered the date of public notice.

285.62(4) (4) Public comment. The department shall receive public comment on the application for a 30-day period beginning when the department gives notice under sub. (3) (c).

285.62(5) (5) Public hearing.

285.62(5)(a) (a) Hearing permitted. The department may hold a public hearing on an application for an operation permit for a stationary source if requested by any state that received notice under sub. (3) (b) or any other person, if the person may be affected by the issuance of the permit, within 30 days after the department gives notice under sub. (3) (c). A request for a public hearing shall indicate the interest of the party filing the request and the reasons why a hearing is warranted. The department shall hold the public hearing within 60 days after the deadline for requesting a hearing if it determines that there is a significant public interest in holding the hearing.

285.62(5)(b) (b) Procedure. The department shall promulgate by rule procedures for conducting public hearings under this subsection. Hearings under this subsection are not contested cases under s. 227.01 (3).

285.62(6) (6) Proposed permit; response to comments; environmental protection agency objection.

285.62(6)(a) (a) After considering any public comments concerning an application, the department may prepare a proposed operation permit or deny the application for an operation permit. If the criteria in ss. 285.63 and 285.64 are met, the department shall prepare a proposed operation permit. If required by the federal clean air act, the department shall provide a copy of a proposed operation permit to the federal environmental protection agency. If a state has submitted recommendations in response to the notice under sub. (3) (b) 7. and the department has not accepted those recommendations, the department shall notify that state and the federal environmental protection agency in writing of its decision not to accept the recommendations and the reasons for that decision.

285.62(6)(b) (b) The federal environmental protection agency may object in writing to the issuance of an operation permit that it determines is not in compliance with the federal clean air act or an implementation plan prepared under s. 285.11 (6). The department shall respond in writing to the objection if the federal environmental protection agency provides the reasons for the objection and submits the objection to the department and the applicant within 45 days after receiving either a copy of the proposed operation permit under par. (a) or notice under par. (a) of the department’s decision not to accept the recommendations of another state.

285.62(6)(c) (c)

285.62(6)(c)1. 1. If the department receives an objection from the federal environmental protection agency under this subsection, the department may not issue the operation permit unless the department revises the proposed operation permit as necessary to satisfy the objection.

285.62(6)(c)2. 2. If the department has issued an operation permit before receiving an objection from the federal environmental protection agency that is based on a petition submitted under 42 USC 7661d (b) 2. and the federal environmental protection agency modifies, terminates or revokes the operation permit, the department shall issue an operation permit that is revised to satisfy the objection.

285.62(6)(d) (d) The requirements under pars. (a) to (c) do not apply with respect to an application for an operation permit for a stationary source that is in a category that the department excludes, by rule, from those requirements because the source is not required to obtain a permit under the federal clean air act or that the federal environmental protection agency excludes from those requirements under 42 USC 7661d (d).

285.62(6)(e) (e) This subsection does not apply before the federal environmental protection agency approves this state’s air pollution control permit program under 42 USC 7661a (d) or (g).

285.62(7) (7) Department determination; issuance.

285.62(7)(a) (a) The department shall approve or deny the operation permit application for an existing source. The department shall issue the operation permit for an existing source if the criteria established under ss. 285.63 and 285.64 are met. The department shall issue an operation permit for an existing source or deny the application within 18 months after receiving a complete application, except that the department may, by rule, extend the 18-month period for specified existing sources by establishing a phased schedule for acting on applications received within one year after the effective date of the rule promulgated under sub. (1) that specifies the content of applications for operation permits. The phased schedule may not extend the 18-month period for more than 3 years.

285.62(7)(b) (b) The department shall approve or deny the operation permit application for a new source or modified source. The department shall issue the operation permit for a new source or modified source if the criteria established under ss. 285.63 and 285.64 are met. The department shall issue an operation permit for a new source or modified source or deny the application within 180 days after the application is considered to be complete under sub. (2) (b) or after the permit applicant submits to the department the results of all equipment testing and emission monitoring required under the construction permit, whichever is later.

285.62(7)(c) (c) If required by the federal clean air act, the department shall provide a copy of an operation permit to the federal environmental protection agency.

285.62(8) (8) Operation continued during application.

285.62(8)(a) (a) If a person timely submits a complete application for a stationary source under sub. (1) and submits any additional information requested by the department within the time set by the department, the stationary source may not be required to discontinue operation and the person may not be prosecuted for lack of an operation permit until the department acts under sub. (7).

285.62(8)(b) (b) If a person submits an application for renewal of an operation permit before the date specified in s. 285.66 (3) (a), the stationary source may not be required to discontinue operation and the person may not be prosecuted for lack of an operation permit until the department acts under sub. (7), except that this paragraph does not apply in a situation in which its application would contravene the federal clean air act.

285.62(9) (9) Delay in issuing permits.

285.62(9)(a) (a) If the department fails to issue an operation permit or to deny the application within the period specified in sub. (7) or in a rule promulgated under sub. (7), that failure is considered a final decision on the application solely for the purpose of obtaining judicial review under ss. 227.52 and 227.53 to require the department to act on the application without additional delay.

285.62(9)(b) (b) Subject to sub. (12), if the department fails to act on an application for an operation permit within the time limit under sub. (7) (b), the department shall include in a report the reasons for the delay in acting on the application and recommendations for how to avoid delays in the future in similar situations. The department shall make reports under this subsection available to the public, place a prominent notice of the reports on the department’s Internet site, and submit the reports to the standing committees of the legislature with jurisdiction over environmental matters semiannually.

285.62(10) (10) Effect of permit.

285.62(10)(a) (a) Except as provided in par. (b), the issuance of an operation permit, including an operation permit that contains a compliance schedule, does not preclude enforcement actions based on violations of this chapter that occur before, on or after the date that the operation permit is issued. The inclusion of a compliance schedule in an operation permit does not preclude enforcement actions based on violations of this chapter to which the compliance schedule relates, whether or not the source is violating the compliance schedule.

285.62(10)(b) (b) Unless precluded by the administrator of the federal environmental protection agency under 42 USC 7661c (f), compliance with all emission limitations included in an operation permit is considered to be compliance with all emission limitations established under this chapter and emission limitations under the federal clean air act that are applicable to the stationary source as of the date of issuance of the operation permit if the permit includes the applicable emission limitations or the department, in acting on the application for the operation permit, determines in writing that the emission limitations do not apply to the stationary source and the operation permit includes that determination.

285.62(11) (11) Operation permit dates.

285.62(11)(a) (a) Operation permit requirement date. The department shall promulgate by rule a schedule of the dates when an operation permit is required for various categories of stationary sources.

285.62(11)(b) (b) Operation permit application date.

285.62(11)(b)1. 1. The department shall promulgate by rule a schedule of the dates when an operation permit application is required to be submitted for various categories of existing sources.

285.62(11)(b)2. 2. A person who is required to obtain a construction permit shall submit an application for an operation permit with the application for the construction permit.

285.62(12) (12) Extensions. Upon agreement between the department and an applicant, the department shall extend any time limit applicable to the department under this section. The department may not require an applicant to agree to extend a time period as a condition of approving an application.

285.62 History History: 1979 c. 221; 1985 a. 182 s. 57; 1991 a. 302; 1995 a. 27; 1995 a. 227 ss. 471, 487; Stats. 1995 s. 285.62; 1997 a. 35; 2003 a. 118; 2005 a. 155; 2011 a. 167; 2017 a. 365 s. 112.

285.62 Cross-reference Cross-reference: See also chs. NR 406, 407, 408, 409, and 490, Wis. adm. code.

285.63 285.63 Criteria for permit approval.

285.63(1) (1) Requirements for all sources. The department may approve the application for a permit required or allowed under s. 285.60 if it finds:

285.63(1)(a) (a) Source will meet requirements. The stationary source will meet all applicable emission limitations and other requirements promulgated under this chapter, standards of performance for new stationary sources under s. 285.27 (1) and emission standards for hazardous air contaminants under s. 285.27 (2);

285.63(1)(b) (b) Source will not violate or exacerbate violation of air quality standard or ambient air increment. The source will not cause or exacerbate a violation of any ambient air quality standard or ambient air increment under s. 285.21 (1) or (2);

285.63(1)(c) (c) Other permits approvable if source is operating under an emission reduction option. If the source is operating or seeks to operate under an emission reduction option, the required permit applications for other sources participating in that emission reduction option are approvable; and

285.63(1)(d) (d) Source will not preclude construction or operation of other source. The stationary source will not degrade the air quality in an area sufficiently to prevent the construction, reconstruction, replacement, modification or operation of another stationary source if the department received plans, specifications and other information under s. 285.61 (2) (a) for the other stationary source prior to commencing its analysis under s. 285.61 (3) for the former stationary source. This paragraph does not apply to an existing source required to have an operation permit.

285.63(2) (2) Requirements for permits for new or modified major sources in nonattainment areas. The department may approve the application for a construction permit or operation permit for a major source that is a new source or modified source and is located in a nonattainment area if the department finds that the major source meets the requirements under sub. (1) and it finds that all of the following conditions are met:

285.63(2)(a) (a) Emission offsets. By the time the major source is to commence operation, sufficient offsetting emissions reductions have been obtained so that total allowable emissions from the major source and from other air contaminant sources in the area designated by the department will be sufficiently less than the total emissions allowed prior to the application for the construction permit or operation permit, so that reasonable further progress toward the attainment and maintenance of any ambient air quality standard will be achieved.

285.63(2)(b) (b) Lowest achievable emission rate. The emission from the major source will be at the lowest achievable emission rate.

285.63(2)(c) (c) Applicant’s other major sources meet or on schedule to meet requirements. All other major sources that are located in this state and that are owned or operated by the permit applicant or by any entity controlling, controlled by or under common control with the permit applicant, as determined under s. 180.1140 (6), meet or are on schedule to meet the requirements of this chapter and s. 299.15 and rules promulgated under this chapter and s. 299.15 and are in compliance with or are on schedule to come into compliance with all applicable emission limitations and emission standards under the federal clean air act.

285.63(2)(d) (d) Analysis of alternatives. Based on an analysis of alternative sites, sizes, production processes and environmental control techniques for any major source that is located in an area designated under 42 USC 7407 (d), that the benefits of the construction or modification of the major source significantly outweigh the environmental and social costs imposed as a result of the major source’s location, construction or modification.

285.63(3) (3) Requirements for permits for new or modified major sources in attainment areas. The department may approve the application for a construction permit or operation permit for a major source that is a new source or a modified source and is located in an attainment area if the department finds that the major source meets the requirements under sub. (1) and it finds:

285.63(3)(a) (a) Best available control technology. The source will be subject to the best available control technology for each applicable air contaminant;

285.63(3)(b) (b) Effects on air quality analyzed. The effects on air quality as a result of the source and growth associated with the source were analyzed;

285.63(3)(c) (c) No adverse effect on air quality related values. The source will not adversely affect the air quality related values of any federal mandatory class I prevention of significant deterioration area; and

285.63(3)(d) (d) Monitoring. The permit applicant agrees to conduct monitoring specified by the department as necessary to determine the effects of the source on air quality.

285.63(3m) (3m) Consideration of certain greenhouse gas emissions. Unless required under the federal clean air act, in determining whether a major source is subject to best available control technology under sub. (3) (a) for greenhouse gas emissions resulting from the combustion or decomposition of nonfossilized and biodegradable organic material originating from plants, animals, or microorganisms, the department may only consider carbon dioxide emissions consistent with 40 CFR 51.166 (b) (48) and the definition of “subject to regulation” in 40 CFR 70.2.

285.63(4) (4) Exemption from requirements. The department may waive a requirement under sub. (2) or (3) if:

285.63(4)(a) (a) Not applicable. The requirement is not applicable to the source; or

285.63(4)(b) (b) Not necessary. The requirement is not necessary to ensure that the source will have no adverse effect on air quality if the construction and operation or modification and operation of the source would result in an allowable emission of less than an amount specified by rule by the department.

285.63(5) (5) Conditional permit. The department may issue a conditional air pollution control permit even if it finds that the source, as proposed, does not meet the requirements under subs. (1) to (3). If the department issues a conditional permit, it shall prescribe reasonable permit conditions to assure that the source will meet the requirements under subs. (1) to (3) if it is constructed, reconstructed, replaced, modified or operated in accordance with those conditions.

285.63(6) (6) Exemption from requirements for modifications. The department may waive a requirement under subs. (1) to (3) if the application is for the modification of a source, the source already has an air pollution control permit and the source already meets the requirements as a condition of that permit.

285.63(7) (7) Use of volatile organic compound growth accommodation.

285.63(7)(a) (a) Subject to the conditions and restrictions specified in this subsection, the department shall grant use of the growth accommodation as a means for a stationary source to comply with either sub. (1) (b) or (2) (a), or both subs. (1) (b) and (2) (a).

285.63(7)(b) (b) Upon application by a source, the department shall certify to the applicant a growth accommodation credit in the amount requested subject to all of the following conditions:

285.63(7)(b)1. 1. The applicant demonstrates to the satisfaction of the department that it is unable, through reasonable means which could include installation of the best available control technology, to eliminate its need for a growth accommodation credit by reducing emissions of volatile organic compounds from any stationary sources that it owns or operates in the volatile organic compound accommodation area. If the department determines that an applicant could, through reasonable means, reduce the amount of growth accommodation credit applied for by reducing emissions of volatile organic compounds from any stationary sources that it owns or operates in the volatile organic compound accommodation area, the department shall certify to the applicant a growth accommodation credit equal to the amount requested by the applicant minus the amount by which the department finds the source could, through reasonable means, reduce emissions from other stationary sources that it owns or operates in the volatile organic compound accommodation area.

285.63(7)(b)2. 2. Except as provided in s. 285.69 (5) (d), the applicant is in compliance or is complying with an approved schedule to be in compliance with this chapter and s. 299.15 with respect to all stationary sources that it owns or operates and has paid the fees required under s. 285.69 (5).

285.63(7)(b)3. 3. Except as provided in subd. 8., the growth accommodation reported for the current year under s. 285.39 (2) (b) 1., after reduction by the amount of the proposed growth accommodation credit and any growth accommodation credits issued since the date of the report, is greater than 2,500 tons.

285.63(7)(b)4. 4. If the growth accommodation reported for the current year under s. 285.39 (2) (b) 1., less a reduction by the amount of any growth accommodation credits issued since the date of the report under s. 285.39 (2) (b) 1., is greater than 3,000 tons, the department may certify to the applicant no more than the amount of the growth accommodation reported for the current year under s. 285.39 (2) (b) 1., less the sum of 2,750 tons and any growth accommodation credits issued since the date of the report under s. 285.39 (2) (b).

285.63(7)(b)5. 5. If the growth accommodation reported for the current year under s. 285.39 (2) (b) 1., after reduction by the amount of any growth accommodation credits issued since the date of the report under s. 285.39 (2) (b) 1., is greater than 2,500 tons but less than or equal to 3,000 tons, the department may certify no more than 250 tons to the applicant in that year.

285.63(7)(b)6. 6. The applicant agrees to forfeit any unused growth accommodation credits that the department determines the applicant does not need, as provided under sub. (8).

285.63(7)(b)7. 7. The applicant agrees not to sell or transfer any amount of the growth accommodation credit to any person other than the department.

285.63(7)(b)8. 8. If the growth accommodation reported for the current year under s. 285.39 (2) (b) 1., after reduction by the amount of the proposed growth accommodation credit and any growth accommodation credits issued since the date of the report, would be 2,500 tons or less, the department may certify to the applicant a growth accommodation credit in the amount determined under this section if, because of facility shutdowns or replenishment activities under s. 285.39 that have occurred, the growth accommodation for the next succeeding year after reduction by the amount of the growth accommodation credit will be greater than 2,500 tons.

285.63(7)(b)9. 9. An applicant shall inform the department of the date or dates when it will need to use any given amount of the growth accommodation credit. The department shall certify to the applicant the proper amount of the growth accommodation credit on the date which the applicant states it will need it and shall reserve the proper amount of the growth accommodation credit for certification to the applicant upon the date needed, except for any amount which is forfeited under sub. (8). The department may use reserved growth accommodation credits to certify temporary growth accommodation credits which expire on or before the date when they are certified to the source which reserved them.

285.63(7)(b)10. 10. Upon request by an applicant, the department may certify to the applicant a growth accommodation credit which expires upon a date designated in the permit. The applicant shall sign a statement to acknowledge the expiration date of the permit. Growth accommodation credits issued under this subdivision may be certified from growth accommodation credits reserved by another source under subd. 9.