Chapter 196

196.491 Annotation It was reasonable for the PSC to issue a certificate conditioned on the issuance of DNR permits when legislatively imposed time constraints could not have been met if sub. (3) (e) had been strictly followed and all permits required before the issuance of the certificate. Responsible Use of Rural & Agricultural Land v. PSC, 2000 WI 129, 239 Wis. 2d 660, 619 N.W.2d 888, 99-2430.

196.491 Annotation While sub. (3) (a) 1. does not provide standards to determine if an application for a certificate of public convenience and necessity is complete, it specifically states that an application must contain the information required by PSC rules and PSC is not free to ignore those requirements in making its completeness determination. Although the PSC’s decision that an application is complete is not itself a final decision, it is nonetheless subject to judicial review. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 Annotation Interpreting a PSC rule to require a certificate of public convenience and necessity applicant to file the actual regulatory approvals before the application can be deemed to be complete would conflict with sub. (3) (a) 3. a. and b. The statute expressly contemplates that an applicant will not have the required DNR permits in hand at the time the PSC must render its completeness determination. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 Annotation There is nothing unreasonable in the PSC determining an application to be complete yet requesting further information to assist in its review of the certificate of public convenience and necessity application. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 Annotation Sub. (3) (i) expressly withdraws the power of municipalities to act, once the PSC has issued a certificate of public convenience and necessity, on any matter that the PSC has addressed or could have addressed in that administrative proceeding. American Transmission Co., LLC v. Dane County, 2009 WI App 126, 321 Wis. 2d 138, 772 N.W.2d 731, 08-2604.

196.491 Annotation Section 196.49 (3) controls a utility’s application to construct an out-of-state electric generating facility. Sub. (3) applies exclusively to in-state facilities. Under s. 196.01 (5) (a) and s. 196.491 (1) (am), every public utility has availed itself of Wisconsin’s regulatory jurisdiction by obtaining authorization to engage in public utility business. Therefore, when the Public Service Commission reviews an application under s. 196.49 (3) it is a statutory entity that is being regulated, not a person’s activity of constructing a facility, as is the case under sub. (3). Wisconsin Industrial Energy Group v. Public Service Commission, 2012 WI 89, 342 Wis. 2d 576, 819 N.W.2d 240, 10-2762.

196.491 Annotation The Public Service Commission’s (PSC) interpretation of the reasonable needs of the public is not limited to the existing infrastructure’s ability to “keep the lights on.” Rather, PSC takes into account additional relevant factors in making its determination, such as increased reliability, economic benefits, and public policy considerations. PSC’s interpretation of “reasonable needs” comports with the intent of sub. (3) (d). Town of Holland v. Public Service Commission, 2018 WI App 38, 382 Wis. 2d 799, 913 N.W.2d 914, 17-1129.

196.494 196.494 Regional transmission planning.

196.494(1) (1) In this section:

196.494(1)(a) (a) “Electric utility” means a public utility, other than a municipal utility, as defined in s. 196.377 (2) (a) 3., that provides retail electric service to customers in this state.

196.494(1)(b) (b) “Transmission facility” means any pipe, pipeline, duct, wire, line, conduit, pole, tower, equipment or other structure used for the transmission of electric power as determined by the commission.

196.494(2) (2) The commission shall conduct a study on identifying and relieving any constraint on an intrastate or interstate electric transmission system that adversely affects the reliability of transmission service provided to electric customers in this state and shall, no later than September 1, 1998, submit a report on the results of the study to the legislature in the manner provided under s. 13.172 (2).

196.494(3) (3) The commission shall, under this subsection, issue an order requiring the transmission company, as defined in s. 196.485 (1) (ge), or an electric utility to construct or procure, on a competitive basis, the construction of transmission facilities specified by the commission in its order if the commission determines that such construction is necessary to relieve a constraint on a transmission system and the construction will materially benefit the customers of the transmission company or electric utility or other electric utilities or of an independent system operator, as defined in s. 196.485 (1) (d), or independent transmission owner, as defined in s. 196.485 (1) (dm).

196.494(4) (4) The commission shall allow an electric utility to recover in its retail electric rates any costs that are prudently incurred by the utility in complying with an order under sub. (3).

196.494(5) (5) The governor may, on behalf of this state, enter into an interstate compact that establishes a joint process for the states in the upper midwest region of the United States to determine the need for and siting of regional electric transmission facilities that may affect electric service in this state. The governor may not enter into a compact under this subsection unless the compact includes requirements and procedures for establishing each of the following:

196.494(5)(a) (a) Compliance with each state’s environmental and siting standards for transmission facilities.

196.494(5)(b) (b) A regional need determination for transmission facilities.

196.494(5)(c) (c) A mechanism for resolving conflicts between the states regarding the siting of transmission facilities.

196.494 History History: 1997 a. 204; 1999 a. 9.

196.495 196.495 Avoidance of duplication in electric facilities.

196.495(1) (1) 

196.495(1)(a) (a) In this section:

196.495(1)(a)1. 1. “Primary voltage extension” means an extension of 500 feet or more.

196.495(1)(a)2. 2. “Secondary voltage extension” means an extension that is less than 500 feet.

196.495(1)(b) (b) The length of an extension shall be measured as the air line distance between an existing local service distribution line that normally operates at less than 35 kilovolts and the nearest point on the principal building or facility to be served by a primary voltage extension or a secondary voltage extension.

196.495(1m) (1m) No public utility, and no cooperative association organized under ch. 185 for the purpose of furnishing electric service to its members only, may:

196.495(1m)(a) (a) Extend or render electric service directly or indirectly to the premises of any person already receiving electric service directly or indirectly from another public utility or another cooperative association.

196.495(1m)(b) (b) Make a primary voltage extension to serve the premises of any person not receiving electric service and to which service is available from the facilities of another public utility or another such cooperative association through a secondary voltage extension, unless the other public utility or cooperative association consents to the primary voltage extension in writing or unless the commission, after notice to the interested parties and hearing, determines that the service rendered or to be rendered by the other public utility or cooperative association is inadequate and is not likely to be made adequate, or that the rates charged for service are unreasonable and are not likely to be made reasonable.

196.495(2) (2) If a public utility is rendering electric service under an indeterminate permit to a city or village, no cooperative association may extend any new electric service to the premises of any person inside the corporate limits, existing on January 1, 1961, of the city or village without the written consent of the public utility. Within any area annexed to a city or village after January 1, 1961, in which annexed area a cooperative association or public utility, other than the public utility serving the city or village under an indeterminate permit, has electric distribution facilities at the time of the annexation, the cooperative association or other public utility may make a primary voltage extension or a secondary voltage extension in the annexed area, subject to sub. (1m).

196.495(2m) (2m) The distribution service facilities of a cooperative association or public utility rendering electric service in an annexed area under sub. (2) shall be subject to acquisition under ch. 197 by a city or village if the city or village operates or proposes to operate its own electric public utility.

196.495(3) (3) Nothing in this section shall preclude any public utility or any cooperative association from extending electric service to its own property or facilities or to another cooperative association for resale.

196.495(4) (4) To avoid duplication of facilities, a public utility and a cooperative association may enter into a written agreement governing the extension of electric distribution lines and the right to serve customers. The commission shall enforce an agreement if the agreement has been filed with the commission and approved by the commission as being in the public interest.

196.495(5) (5) If an interested party files a complaint with the commission that an electric public utility or a cooperative association has made a primary voltage extension that requires approval or consent under this section without obtaining approval or consent, the commission shall hear the complaint upon notice to the interested parties. If the commission determines that the primary voltage extension was made in violation of this section, it shall order the prompt removal of the primary voltage extension.

196.495(6) (6) A cooperative association shall be subject to the authority of the commission to enforce the provisions of this section and to issue rules and orders relating to the provisions.

196.495(7) (7) A cooperative association shall be subject to the authority of the commission to allocate, assess and collect expenditures of the commission against a cooperative association involved in a proceeding under this section in the same manner as provided for public utilities under s. 196.85.

196.495 History History: 1971 c. 125 s. 521; 1983 a. 53; 1991 a. 94.

196.495 Cross-reference Cross-reference: See also s. PSC 112.08, Wis. adm. code.

196.495 Annotation Although one utility was serving a farm, when the farm was annexed to a city and a large shopping center was built, the utility having an indeterminate permit to serve the city could not be barred from serving the area; the PSC should determine which utility should serve the area. Adams-Marquette Electric Cooperative v. PSC 51 Wis. 2d 718, 188 N.W.2d 515 (1971).

196.495 Annotation The “premises of a person already receiving electrical service” refers to the premises to be served, not the person. Adams-Marquette Electric Cooperative v. PSC 51 Wis. 2d 718, 188 N.W.2d 515 (1971).

196.495 Annotation The application of this section is discussed. A court’s order to a utility violating this section to remove the offending line or sell it to the utility who should have provided the service was within the authority granted by sub. (5). Barron Electric Cooperative v. PSC, 212 Wis. 2d 752, 569 N.W.2d 726 (Ct. App. 1997), 97-0420.

196.496 196.496 Distributed generation facilities.

196.496(1) (1) Definition. In this section, “distributed generation facility” means a facility for the generation of electricity with a capacity of no more than 15 megawatts that is located near the point where the electricity will be used or is in a location that will support the functioning of the electric power distribution grid.

196.496(2) (2) Rules. The commission shall promulgate rules establishing standards for the connection of distributed generation facilities to electric distribution facilities. To the extent technically feasible and cost effective, the standards shall be uniform and shall promote the development of distributed generation facilities. The standards shall address engineering, electric reliability, and safety concerns and the methods for determining charges for interconnection.

196.496 History History: 2001 a. 16.

196.496 Cross-reference Cross-reference: See also ch. PSC 119, Wis. adm. code.

196.497 196.497 State policy regarding the long-term disposal of high-level radioactive waste and transuranic waste.

196.497(1) (1) Definitions. As used in this section unless the context requires otherwise:

196.497(1)(b) (b) “Federal department of energy” means the federal department of energy or any successor agency assigned responsibility for the long-term disposal of high-level radioactive waste and transuranic waste.

196.497(1)(c) (c) “High-level radioactive waste” means:

196.497(1)(c)1. 1. Fuel that is withdrawn from a nuclear reactor after irradiation and which is packaged and prepared for disposal; or

196.497(1)(c)2. 2. Highly radioactive waste resulting from reprocessing irradiated nuclear fuel including both the liquid waste which is produced directly in reprocessing and any solid material into which the liquid waste is transformed.

196.497(1)(d) (d) “Transuranic waste” means waste material containing alpha-emitting radioactive elements having an atomic number greater than 92 in concentrations greater than 10 nanocuries per gram.

196.497(2) (2) Coordination.

196.497(2)(a) (a) Initial agency to be contacted. The commission shall serve as the initial agency in this state to be contacted by the federal department of energy or any other federal agency on any matter related to the long-term disposal of high-level radioactive waste or transuranic waste.

196.497(2)(b) (b) Receipt of information. The commission shall serve as the initial agency in this state to receive any report, study, document, information or notification of proposed plans from the federal department of energy or any other federal agency on any matter related to the long-term disposal of high-level radioactive waste or transuranic waste. Notification of proposed plans include notification of proposals to conduct field work, on-site evaluation, on-site testing or similar activities.

196.497(2)(c) (c) Dissemination of information. The commission shall disseminate or arrange with the federal department of energy or other federal agency to disseminate information received under par. (b) to appropriate state agencies, local units of government, regional planning commissions, American Indian tribal governing bodies, the general public, interested citizen groups and persons who have requested in writing to receive this information.

196.497(2)(d) (d) Response. The commission shall respond to contacts under par. (a) and information received under par. (b) if a response is appropriate. The commission shall consult with appropriate state agencies, local units of government, regional planning commissions, American Indian tribal governing bodies, the general public and interested citizen groups in preparing this response.

196.497(3) (3) Advocate. The commission shall serve as an advocate on behalf of the citizens of this state before the federal department of energy and other federal agencies on matters related to the long-term disposal of radioactive waste and transuranic waste.

196.497(5) (5) Review of applications for federal funds. The commission shall review any application to the federal department of energy or other federal agency by a state agency, local unit of government or regional planning commission for funds for any program related to the long-term disposal of high-level radioactive waste or transuranic waste. If the commission finds that the application is not consistent with the commission’s policy related to the long-term disposal of high-level radioactive waste or transuranic waste or that the application is not in the best interest of the state, the commission shall forward its findings to the governor, the joint committee on finance and the federal agency to which the application for funds is being made. If the commission finds that the application of a state agency is not consistent with the commission’s policy related to the long-term disposal of high-level radioactive waste or transuranic waste or that the application of a state agency is not in the best interest of the state, the findings forwarded to the governor shall include a recommendation that the governor act under s. 16.54 (1) and stipulate conditions for the acceptance of the funds which are necessary to safeguard the interests of the state.

196.497(6) (6) Monitor federal activity. The commission shall monitor activity in congress and the federal government related to the long-term disposal of high-level radioactive waste and transuranic waste. The commission may advise the congressional delegation from this state of action which is needed to protect the interests of the state.

196.497(7) (7) Request attorney general to intervene. If appropriate the commission shall request the attorney general to intervene in federal proceedings to protect the state’s interests and present the state’s point of view on matters related to the long-term disposal of high-level radioactive waste or transuranic waste.

196.497(8) (8) Negotiation of agreements.

196.497(8)(a) (a) Negotiations with the federal department of energy. The commission shall serve as the agency in this state to negotiate written agreements and modifications to these agreements, with the federal department of energy on any matter related to the long-term disposal of high-level radioactive waste or transuranic waste.

196.497(8)(b) (b) Negotiations with other federal agencies. The commission shall serve as the agency in this state to negotiate written agreements and modifications to these agreements, with any federal agency other than the federal department of energy on any matter related to the long-term disposal of high-level radioactive waste or transuranic waste.

196.497(8)(d) (d) Hearings. The commission shall conduct public hearings on any proposed agreement or modification to an agreement negotiated under par. (a) or (b). The commission shall provide 30 days’ notice of the date and location of hearings conducted under this paragraph. The commission shall prepare a written summary of testimony presented at hearings conducted under this paragraph and shall consider the need for modifications to the negotiated agreement as a result of the hearings.

196.497(8)(f) (f) Approval of agreements and modifications by the legislature and governor. No agreement or modification to an agreement negotiated under par. (a) or (b) may take effect unless it is approved under sub. (10).

196.497(8)(g) (g) Technical revisions. The commission may negotiate what in the commission’s judgment are technical revisions to any agreement approved under sub. (10).

196.497(8)(i) (i) Review of technical revisions by the legislature and governor. No technical revision to an agreement negotiated under par. (g) may take effect unless it is considered approved under sub. (11).

196.497(9) (9) Agreements with the federal department of energy.

196.497(9)(a) (a) Separate agreements. The commission may negotiate separate agreements with the federal department of energy concerning different stages of the process of evaluating and selecting a site for the long-term disposal of high-level radioactive waste or transuranic waste. The commission shall negotiate a separate agreement with the federal department of energy for the final stages of the selection of any site for the long-term disposal of high-level radioactive waste or transuranic waste.

196.497(9)(b) (b) Contents. Any agreement negotiated by the commission with the federal department of energy under sub. (8) (a) shall include all of the following:

196.497(9)(b)1. 1. A general description of the roles of the state and the federal department of energy.

196.497(9)(b)2. 2. A compliance schedule which includes a list of significant events and stages which are expected to be reached as the federal department of energy assesses the suitability of the state for the long-term disposal of high-level radioactive waste or transuranic waste and a description of the actions to be taken by the federal department of energy and the state at each event and stage.

196.497(9)(b)3. 3. The criteria that the department of energy shall use in evaluating the suitability of any site in the state for the long-term disposal of high-level radioactive waste or transuranic waste.

196.497(9)(b)4. 4. A requirement that the federal department of energy shall comply with all federal laws, American Indian laws, state laws and local ordinances and shall respect state sovereignty consistent with the 10th amendment to the U.S. constitution and the U.S. constitution, regardless of the ownership of the land on which the activity takes place.

196.497(9)(b)5. 5. A requirement that the federal department of energy and any of its contractors or subcontractors shall provide the commission with all reports and documents the commission requests and any other relevant reports and documents in a timely manner and in accordance with any applicable law, regulation or rule. The requirement shall specify that the federal department of energy may not charge a fee for searching for or for supplying reports and documents requested by the commission. The requirement shall specify that the federal department of energy shall provide the commission with all reports and documents the commission requests and any other relevant reports and documents from contractors and subcontractors after the reports and documents are submitted to the federal department of energy regardless of whether the reports and documents have received the department of energy’s final approval.

196.497(9)(b)6. 6. A requirement that, upon request by the commission, the federal department of energy shall provide the data, methods and underlying assumptions used in the preparation of reports and documents in accordance with any applicable law, regulation or rule.

196.497(9)(b)7. 7. A requirement that the federal department of energy shall notify the commission of any grants related to the long-term disposal of high-level radioactive waste and transuranic waste from the federal department of energy to any person in this state.

196.497(9)(b)8. 8. A requirement that the federal department of energy shall notify the commission in a timely manner of any proposed field work, on-site evaluation, on-site testing or similar activities it or any contractor or subcontractor intends to conduct and a requirement that the federal department of energy shall allow the commission to monitor these activities by designating a reasonable number of persons to observe the activities or by any other appropriate means.

196.497(9)(b)9. 9. A requirement that the federal department of energy shall provide the commission in a timely manner with a copy of any requests for proposals and final contracts issued by the federal department of energy relating to the evaluation, selection or construction of a site for the long-term disposal of high-level radioactive waste or transuranic waste in this state.

196.497(9)(b)10. 10. A provision that the federal department of energy shall agree to provide funds to be used to review the activities of the federal department of energy and its contractors and subcontractors which relate to assessing the suitability of the state for the long-term disposal of high-level radioactive waste or transuranic waste.

196.497(9)(b)11. 11. A process for resolving disputes between the commission and the federal department of energy including disputes concerning alleged violations of the written agreement and disputes concerning technical assessments made by the federal department of energy. The process for resolving disputes concerning technical assessments made by the federal department of energy may involve a process of scientific review and mediation.

196.497(9)(b)12. 12. A requirement that if the federal department of energy selects a site in the state for construction of a repository for the long-term disposal of high-level radioactive waste or transuranic waste, the federal department of energy shall prepare, prior to submission of an application to license or construct the repository, a repository plan which shall include descriptions of the federal department of energy’s plans for construction of the repository, transportation of wastes to the repository, operation of the repository, closing of the repository and monitoring the repository after closure.

196.497(9)(c) (c) Objection to site selection. Any agreement negotiated by the commission with the federal department of energy under sub. (8) (a) shall include a list of reasons for which the commission may object to the selection of a site within this state for the long-term disposal of high-level radioactive waste and transuranic waste. These reasons shall include the following:

196.497(9)(c)1. 1. The site or the transportation of waste to the site poses a danger to public health and safety or to the environment.

196.497(9)(c)2. 2. The federal department of energy fails to address to the satisfaction of the commission the potential socioeconomic effects of the site or of the transportation of waste to the site.

196.497(9)(c)3. 3. The federal department of energy violates any written agreement or revision approved under sub. (10) or (11).

196.497(9)(c)4. 4. If, in the judgment of the commission, the federal department of energy fails to comply with criteria, regulations or standards of other federal agencies concerning the long-term disposal of high-level radioactive waste or transuranic waste including criteria which excludes a proposed site from consideration because of previous mining or drilling of any type within the area which could be affected by the construction of the site or by the heat resulting from the disposal of high-level radioactive waste or transuranic waste at the site.

196.497(9)(c)5. 5. If, in the judgment of the commission, the federal department of energy fails to use generally accepted scientific and technical practices in evaluating the suitability of a site for the long-term disposal of high-level radioactive waste or transuranic waste.