Chapter 285

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.

285.63(7)(c) (c) Nothing in this subsection grants the recipient of a growth accommodation credit a property right to emit volatile organic compounds.

285.63(7)(d) (d) Notwithstanding pars. (a) and (b) (intro.), the department may not grant use of the growth accommodation under this subsection for an air pollution control permit application submitted after July 1, 1992, as long as the growth accommodation area is designated under 42 USC 7407 as an ozone nonattainment area.

285.63(8) (8) Forfeiture of growth accommodation credits. Within 4 years after the department certifies, under sub. (7), a growth accommodation credit to an applicant or reserves for the future use of an applicant a growth accommodation credit, and at least every 4 years thereafter, the department shall determine whether the certified or reserved growth accommodation credit is reasonably necessary for the applicant’s current use and future plans. If the department determines that any amount of the certified or reserved growth accommodation credit is not reasonably necessary for the applicant’s current use and if the applicant cannot demonstrate to the satisfaction of the department that any amount of the certified or reserved growth accommodation credit is reasonably necessary for the applicant’s future plans, the applicant shall forfeit an amount of the growth accommodation credit, as determined by the department. The department shall deposit the forfeited amount of the growth accommodation credit in the growth accommodation replenishment.

285.63(9) (9) Restriction on emission reduction option programs.

285.63(9)(a) (a) No emissions of volatile organic compounds may be used in an emission reduction option program if:

285.63(9)(a)1. 1. The program involves a grantee of emissions of volatile organic compounds that is different than the grantor of emissions of volatile organic compounds; and

285.63(9)(a)2. 2. The emissions of volatile organic compounds specified in the program are from a recorded source.

285.63(9)(b) (b) In this subsection, “recorded source” means a stationary source in the volatile organic compound accommodation area owned or operated by any person who owns or operates on May 17, 1988, a stationary source whose actual 1980 emissions of volatile organic compounds are recorded as zero in the 1982 plan approved by the U.S. environmental protection agency under 42 USC 7502 (a).

285.63(10) (10) Requirements for medical waste incinerators.

285.63(10)(a) (a) In this subsection, “medical waste incinerator” has the meaning given in s. 287.07 (7) (c) 1. cr.

285.63(10)(b) (b) In addition to the requirements under subs. (1) to (3), the department may approve an application submitted after May 14, 1992, for a permit required or allowed under s. 285.60 for the construction of a medical waste incinerator or for the modification of a medical waste incinerator that expands the capacity of the medical waste incinerator only if it finds that the new or modified medical waste incinerator will be needed and that the site of the medical waste incinerator is appropriate.

285.63(10)(c) (c) The department shall consider all of the following in evaluating the need for the proposed medical waste incinerator:

285.63(10)(c)1. 1. An approximate service area for the proposed medical waste incinerator that encompasses all sources of waste that could potentially be burned in the medical waste incinerator. The department shall delineate the service area based on the economics of waste collection, transportation and treatment.

285.63(10)(c)2. 2. The quantity of waste that could potentially be burned in the proposed medical waste incinerator and that is generated within the anticipated service area.

285.63(10)(c)3. 3. The remaining capacity or design capacity of other solid waste facilities, if those facilities are located within the anticipated service area of the proposed medical waste incinerator and are currently providing or are expected to provide solid waste management for any sources of solid waste that could potentially be burned in the medical waste incinerator.

285.63(10)(c)4. 4. The quantity of waste having the potential to be burned in the medical waste incinerator that may be managed in an effective recycling program created under s. 287.11.

285.63(10)(c)5. 5. The potential for reducing the quantity of waste having the potential to be burned in the medical waste incinerator by reducing the amount of waste that is generated within the anticipated service area and the potential for using alternative technologies for disposing of the waste.

285.63(10)(d) (d) The department may not determine that the site of a proposed medical waste incinerator is appropriate if the medical waste incinerator or the transportation of solid waste to the medical waste incinerator will have an adverse effect that is both substantial and unreasonable on any of the following:

285.63(10)(d)1. 1. Existing recreational land uses.

285.63(10)(d)2. 2. Land or surface water that has any of the characteristics under s. 23.27 (2).

285.63(10)(d)3. 3. Scenic vistas of statewide significance.

285.63(10)(d)4. 4. Residential property.

285.63(10)(d)5. 5. Schools, churches, hospitals, nursing homes, or child care facilities.

285.63(10)(d)6. 6. Projected land uses identified in any municipal master plan or official map that is in effect at least 15 months prior to the submission to the department of the permit application, if the land uses are expected to occur during the site life of the medical waste incinerator and any expansions of the medical waste incinerator.

285.63(10)(e) (e) The department shall promulgate rules for making the findings under par. (b).

285.63(11) (11) Modeling. The department is not required to use air dispersion modeling as a basis for making its findings under sub. (1) for a minor source unless modeling is specifically provided for under the federal clean air act, rules promulgated under this chapter, or a federal or state agreement.

285.63 History History: 1979 c. 34, 221; 1981 c. 314 s. 146; 1985 a. 182 s. 57; 1987 a. 27, 399; 1989 a. 56; 1991 a. 300, 302; 1993 a. 213; 1995 a. 227 s. 488; Stats. 1995 s. 285.63; 2003 a. 118; 2009 a. 185; 2011 a. 167, 171.

285.64 285.64 Criteria for operation permits for stationary sources.

285.64(1) (1) Issuance to sources not in compliance; federal objection.

285.64(1)(a) (a) Notwithstanding s. 285.63, the department may issue an operation permit for a stationary source that does not comply with the requirements in the operation permit, in the federal clean air act, in an implementation plan under s. 285.11 (6) or in s. 285.63 when the operation permit is issued if the operation permit includes all of the following:

285.64(1)(a)1. 1. A compliance schedule that sets forth a series of remedial measures that the owner or operator of the stationary source must take to comply with the requirements with which the stationary source is in violation when the operation permit is issued.

285.64(1)(a)2. 2. A requirement that, at least once every 6 months, the owner or operator of the stationary source submit reports to the department concerning the progress in meeting the compliance schedule and the requirements with which the stationary source is in violation when the operation permit is issued.

285.64(1)(b) (b) Notwithstanding par. (a) and s. 285.63, the department may not issue an operation permit to a stationary source if the federal environmental protection agency objects to the issuance of the operation permit as provided in s. 285.62 (6) unless the department revises the operation permit to meet the objection.

285.64(2) (2) One-year moratorium on revocation.

285.64(2)(a) (a) The department may not revoke an operation permit for an existing source for one year after the issuance of that permit based upon failure of the existing source at the time of permit issuance to comply with this chapter and s. 299.15 and rules promulgated under this chapter and s. 299.15.

285.64(2)(b) (b) Notwithstanding par. (a), the department may take any other action necessary to enforce an operation permit and this chapter and s. 299.15 and rules promulgated under this chapter and s. 299.15 which apply to the existing source after issuance of an operation permit under this section.

285.64 History History: 1979 c. 221, 355; 1991 a. 302; 1995 a. 27; 1995 a. 227 s. 489; Stats. 1995 s. 285.64.

285.65 285.65 Permit conditions. The department may prescribe conditions for an air pollution control permit to ensure compliance with this chapter and s. 299.15 and rules promulgated under this chapter and s. 299.15 and to ensure compliance with the federal clean air act if each condition is one of the following and if each condition is applicable to the source:

285.65(1) (1) Final inspection and release of the project for permanent operation upon completion of construction, reconstruction, replacement or modification.

285.65(2) (2) Variances, orders or compliance schedules.