Chapter PSC 128

PSC 128.18(4)(f)3. 3. As soon as possible after the end of a wind energy system emergency, review employee activities to determine whether the procedures were effectively followed.

PSC 128.18 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.19 PSC 128.19 Decommissioning.

PSC 128.19(1) (1) Requirement to decommission.

PSC 128.19(1)(a) (a) An owner of a wind energy system shall decommission and remove the wind energy system when the system is at the end of its useful life.

PSC 128.19(1)(b) (b) A wind energy system is presumed to be at the end of its useful life if the wind energy system generates no electricity for a continuous 360-day period. This presumption may be rebutted under par. (c).

PSC 128.19(1)(c) (c) Upon application by the owner, and except as provided in par. (d), a political subdivision shall grant an extension of the time period for returning the wind energy system to service by one or more additional 180 day periods if the owner demonstrates it is likely the wind energy system will operate again in the future and any of the following occur:

PSC 128.19(1)(c)1. 1. The owner submits a plan to the political subdivision that demonstrates an ongoing good faith effort to return the wind energy system to service and outlines the steps and schedule for returning the wind energy system to service in a reasonable period of time, including by repairing, replacing or repowering the wind energy system facilities as necessary to generate electricity.

PSC 128.19(1)(c)2. 2. The owner demonstrates that the wind energy system is part of a prototype or other demonstration project being used for ongoing research or development purposes.

PSC 128.19(1)(c)3. 3. The owner demonstrates that the wind energy system is being used for educational purposes.

PSC 128.19(1)(d) (d) A political subdivision may deny a request for an extension under par. (c) if the wind energy system has not generated any electricity for a continuous period of 540 days or more and the political subdivision finds that the owner is not capable of returning the wind energy system to service within a reasonable period of time.

PSC 128.19(1)(e) (e) A wind energy system is irrebuttably presumed to be at the end of its useful life if the wind energy system generates no electricity for a period of 540 days and any of the following occur:

PSC 128.19(1)(e)1. 1. The owner does not request an extension of the time period for returning the wind energy system to service under par. (c).

PSC 128.19(1)(e)2. 2. The political subdivision denies a request for an extension under par. (d) and any appeal rights have expired.

PSC 128.19(1)(f) (f) When decommissioning is required, the owner shall begin decommissioning within 360 days after the wind energy system has reached the end of its useful life. The owner shall complete decommissioning and removal of the wind energy system within 540 days after the wind energy system has reached the end of its useful life.

PSC 128.19(2) (2) Decommissioning review. A political subdivision may establish a decommissioning review process to determine when a wind energy system has reached the end of its useful life.

PSC 128.19(3) (3) Financial responsibility.

PSC 128.19(3)(a) (a) The owner of a wind energy system with a nameplate capacity of one megawatt or larger shall maintain proof of the owner’s ability to fund the actual and necessary cost to decommission the wind energy system and shall ensure the availability of funds necessary for decommissioning throughout the expected life of the wind energy system and through to completion of the decommissioning activities.

PSC 128.19(3)(b) (b) A political subdivision may require an owner of a wind energy system with a nameplate capacity of one megawatt or larger to provide financial assurance of the owner’s ability to pay for the actual and necessary cost to decommission the wind energy system before commencing major civil construction activities such as blasting or foundation construction at the wind energy system site. An owner may comply with this paragraph by choosing to provide a bond, deposit, escrow account, irrevocable letter of credit, or some combination of these financial assurances, that will ensure the availability of funds necessary for decommissioning throughout the expected life of the wind energy system and through to completion of the decommissioning activities.

PSC 128.19(3)(c) (c) A political subdivision may require an owner to provide the financial assurance under par. (b) in an amount up to the estimated actual and necessary cost to decommission the wind energy system. If a political subdivision requires an owner to provide financial assurance under par. (b), the political subdivision may do any of the following:

PSC 128.19(3)(c)1. 1. Require the owner to provide the political subdivision with up to 3 cost estimates of the actual and necessary cost to decommission the wind energy system that are prepared by third parties agreeable to the owner and the political subdivision.

PSC 128.19(3)(c)3. 3. Require an owner to establish financial assurance that places the political subdivision in a secured position, and that any secured funds may only be used for decommissioning the wind energy system until either the political subdivision determines that the wind energy system has been decommissioned under sub. (5) (b), or until the political subdivision has otherwise approved the release of the secured funds, whichever is earlier.

PSC 128.19(3)(c)4. 4. Require an owner to establish financial assurance that allows the political subdivision to access funds for the purpose of decommissioning the wind energy system if the owner does not decommission the wind energy system when decommissioning is required.

PSC 128.19(3)(d) (d) If a political subdivision requires an owner to provide cost estimates under par. (c) 1., a political subdivision may not require the amount of the financial assurance to exceed the average of the cost estimates provided.

PSC 128.19(3)(e) (e) A political subdivision may condition its approval of a wind energy system on the owner’s compliance with pars. (b) and (c).

PSC 128.19(3)(f) (f) During the useful life of a wind energy system, the political subdivision may periodically request information from the owner regarding the industry costs for decommissioning the wind energy system. If a political subdivision finds that the future anticipated cost to decommission the wind energy system is at least 10 percent more or less than the amount of financial assurance previously provided under par. (b), the political subdivision may correspondingly increase or decrease the amount of financial assurance required for the wind energy system. A political subdivision may not adjust the financial assurance under this paragraph more often than once in a 5-year period.

PSC 128.19(3)(g) (g) A political subdivision may require an owner to submit to the political subdivision a substitute financial assurance of the owner’s choosing under par. (b) if an event occurs that raises material concerns regarding the viability of the existing financial assurance.

PSC 128.19(4) (4) Site restoration.

PSC 128.19(4)(a) (a) Except as provided in par. (b), if a wind energy system was constructed on land owned by a person other than the owner of the wind energy system, the owner of the wind energy system shall ensure that the property is restored to preconstruction condition, unless otherwise provided in a contract signed by an affected landowner, considering any modifications needed to comply with DNR requirements.

PSC 128.19(4)(b) (b) If a wind energy system was constructed on a brownfield, as defined in s. 238.13 (1) (a), Stats., the owner shall restore the property to eliminate effects caused by the wind energy system, except for the effects of environmental remediation activities, as defined in s. 238.13 (1) (d), Stats.

PSC 128.19(5) (5) Decommissioning completion.

PSC 128.19(5)(a) (a) An owner shall file a notice of decommissioning completion with the political subdivision and the commission when a wind energy system approved by the political subdivision has been decommissioned and removed.

PSC 128.19(5)(b) (b) Within 360 days of receiving a notice of decommissioning, a political subdivision shall determine whether the owner has satisfied the requirements of subs. (1) (a) and (4).

PSC 128.19 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11; correction in (4) (b) made under s. 13.92 (4) (b) 7., Stats., Register December 2012 No. 684.

subch. III of ch. PSC 128 Subchapter III — Political Subdivision Procedure

PSC 128.30 PSC 128.30 Application and notice requirements.

PSC 128.30(1) (1) Application required. An owner shall file an application to construct a wind energy system with all political subdivisions with jurisdiction over the wind energy system.

PSC 128.30(2) (2) Contents of an application. An owner shall complete and file with the political subdivision an application that includes all of the following:

PSC 128.30(2)(a) (a) Wind energy system description and maps showing the locations of all proposed wind energy facilities.

PSC 128.30(2)(b) (b) Technical description of wind turbines and wind turbine sites.

PSC 128.30(2)(c) (c) Timeline and process for constructing the wind energy system.

PSC 128.30(2)(d) (d) Information regarding anticipated impact of the wind energy system on local infrastructure.

PSC 128.30(2)(e) (e) Information regarding noise anticipated to be attributable to the wind energy system.

PSC 128.30(2)(f) (f) Information regarding shadow flicker anticipated to be attributable to the wind energy system.

PSC 128.30(2)(g) (g) Information regarding the anticipated effects of the wind energy system on existing land uses within 0.5 mile of the wind energy system.

PSC 128.30(2)(h) (h) Information regarding the anticipated effects of the wind energy system on airports and airspace.

PSC 128.30(2)(i) (i) Information regarding the anticipated effects of the wind energy system on line-of-sight communications.

PSC 128.30(2)(j) (j) A list of all state and federal permits required to construct and operate the wind energy system.

PSC 128.30(2)(k) (k) Information regarding the planned use and modification of roads within the political subdivision during the construction, operation, and decommissioning of the wind energy system, including a process for assessing road damage caused by wind energy system activities and for conducting road repairs at the owner’s expense.

PSC 128.30(2)(L) (L) A copy of all emergency plans developed in collaboration with appropriate first responders under s. PSC 128.18 (4) (b). An owner may file plans using confidential filing procedures as necessary.

PSC 128.30(2)(m) (m) A decommissioning and site restoration plan providing reasonable assurances that the owner will be able to comply with s. PSC 128.19.

PSC 128.30(2)(n) (n) A representative copy of all notices issued under sub. (5) and ss. PSC 128.105 (1) (a) and 128.42 (1).

PSC 128.30(2)(p) (p) Any other information necessary to understand the construction, operation or decommissioning of the proposed wind energy system.

PSC 128.30(3) (3) Accuracy of information. The owner shall ensure that information contained in an application is accurate.

PSC 128.30(4) (4) Duplicate copies. A political subdivision may specify a reasonable number of copies to be filed. Each copy shall include all worksheets, maps, and other attachments included in the application. A political subdivision may permit an owner to file an application electronically.

PSC 128.30(5) (5) Notice to property owners and residents.

PSC 128.30(5)(a) (a) On the same day an owner files an application for a wind energy system, the owner shall, under s. 66.0401 (4) (a) 3., Stats., use commercially reasonable methods to provide written notice of the filing of the application to property owners and residents located within one mile of the proposed location of any wind energy system facility. The notification shall include all of the following:

PSC 128.30(5)(a)1. 1. A complete description of the wind energy system, including the number and size of the wind turbines.

PSC 128.30(5)(a)2. 2. A map showing the locations of all proposed wind energy system facilities.

PSC 128.30(5)(a)3. 3. The proposed timeline for construction and operation of the wind energy system.

PSC 128.30(5)(a)4. 4. Locations where the application is available for public review.

PSC 128.30(5)(a)5. 5. Owner contact information.

PSC 128.30(5)(b) (b) After a political subdivision receives an application for a wind energy system, the notice required to be published by the political subdivision under s. 66.0401 (4) (a) 1., Stats., shall include a brief description of the proposed wind energy system and its proposed location, the locations where the application is available for public review, the method and time period for the submission of public comments to the political subdivision, and the approximate schedule for review of the application by the political subdivision.

PSC 128.30(6) (6) Public participation.

PSC 128.30(6)(a) (a) A political subdivision shall make an application for a wind energy system available for public review at a local library and at the political subdivision’s business office or some other publicly-accessible location. A political subdivision may also provide public access to the application electronically.

PSC 128.30(6)(b) (b) A political subdivision shall establish a process for accepting and considering written public comments on an application for a wind energy system.

PSC 128.30(6)(c) (c) A political subdivision shall hold at least one public meeting to obtain comments on and to inform the public about a proposed wind energy system.

PSC 128.30(7) (7) Joint application review process.

PSC 128.30(7)(a) (a) If the wind energy system is proposed to be located in more than one political subdivision with jurisdiction over the wind energy system, the political subdivisions involved may conduct a joint application review process on their own motion or upon request. If an owner requests a joint application review, the owner shall include the request in its notice of intent to file an application with the political subdivision under s. PSC 128.105 (1). If the owner requests a joint application review process, the political subdivisions involved shall approve or deny this request within 60 days of receipt of the owner’s notice of intent to file an application.

PSC 128.30(7)(b) (b) Except as provided in s. 66.0401 (4) (a) 2., Stats., if political subdivisions elect to conduct a joint application review process, the process shall be consistent with this chapter and the political subdivisions shall establish the process within 90 days of the date the political subdivisions receive the owner’s notice of intent to file an application. A political subdivision may follow the review process of another political subdivision for purposes of conducting a joint application review process concurrently with the other political subdivision. If a joint application review process is adopted, the owner shall file the joint-review process application with all of the political subdivisions participating in the joint review process.

PSC 128.30 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.31 PSC 128.31 Application completeness.

PSC 128.31(1) (1) Complete applications.

PSC 128.31(1)(a) (a) An application is complete if it meets the filing requirements under ss. PSC 128.30 (2) and 128.50 (1).

PSC 128.31(1)(b) (b) The political subdivision shall determine the completeness of an application, and shall notify the owner in writing of the completeness determination, no later than 45 days after the day the application is filed. An application is considered filed the day the owner notifies the political subdivision in writing that all the application materials have been filed. If a political subdivision determines that the application is incomplete, the notice provided to the owner shall state the reasons for the determination.

PSC 128.31(1)(c) (c) An owner may file a supplement to an application that the political subdivision has determined to be incomplete. There is no limit to the number of times that an owner may re-file an application. For incomplete applications, the owner shall provide additional information as specified in the notice under par. (b).

PSC 128.31(1)(d) (d) An additional 45-day completeness review period shall begin the day after the political subdivision receives responses to all items identified in the notice under par. (b).

PSC 128.31(1)(e) (e) If a political subdivision does not make a completeness determination within the applicable review period, the application is considered to be complete.

PSC 128.31(2) (2) Requests for additional information. A political subdivision may request additional information necessary to understand the wind energy system after determining that an application is complete. An owner shall provide additional information in response to all reasonable requests. An owner shall respond to all inquiries made subsequent to a determination of completeness in a timely, complete, and accurate manner.

PSC 128.31 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.32 PSC 128.32 Political subdivision review of a wind energy system.

PSC 128.32(1) (1) Approval by political subdivision. Except as provided in s. PSC 128.02 (1), a political subdivision may require an owner to obtain approval from the political subdivision before constructing any of the following:

PSC 128.32(1)(a) (a) A wind energy system.

PSC 128.32(1)(b) (b) An expansion of an existing or previously-approved wind energy system.

PSC 128.32(2) (2) Standard for approval.

PSC 128.32(2)(a) (a) A political subdivision may not unreasonably deny an application for a wind energy system or impose unreasonable conditions.

PSC 128.32(2)(b) (b) For a political subdivision that does not have in effect an ordinance as described in s. PSC 128.03 and s. 66.0401 (4) (g), Stats., an application submitted under s. PSC 128.30 (1) shall be considered automatically approved if any of the following occur:

PSC 128.32(2)(b)1. 1. The political subdivision does not enact an ordinance before the first day of the 4th month after the political subdivision receives the application.

PSC 128.32(2)(b)2. 2. The political subdivision notifies the applicant in writing that it does not intend to enact an ordinance, as described in s. 66.0401 (4) (a) 2., Stats.