Chapter 285

285.76 History History: 1997 a. 270; 2011 a. 167; 2017 a. 365 s. 112.

285.77 285.77 Machinery use. The department may not require the use of machinery, devices or equipment from a particular supplier or produced by a particular manufacturer, if the required performance standards may be met by machinery, devices or equipment otherwise available.

285.77 History History: 1979 c. 34; 1987 a. 27; Stats. 1987 s. 144.404; 1995 a. 227 s. 503; Stats. 1995 s. 285.77.

285.78 285.78 Registration of early emission reductions.

285.78(1) (1) In this section:

285.78(1)(a) (a) “Carbon reserve” means any system that takes in and stores more carbon from the atmosphere than it releases to the atmosphere.

285.78(1)(b) (b) “Fine particulate matter” means solid or liquid particles with a diameter less than or equal to 2.5 micrometers or emissions that are precursors to solid or liquid particles with a diameter less than or equal to 2.5 micrometers.

285.78(1)(c) (c) “Greenhouse gas” means carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride or any other gas that traps heat in the atmosphere.

285.78(2) (2) 

285.78(2)(a) (a) The department shall establish and operate a system under which the department registers reductions in emissions of greenhouse gases if the reductions are made before the reductions are required by law. Under the system, the department may register carbon sequestration from the creation or preservation of carbon reserves and may register avoided emissions resulting from energy efficiency measures and from the use of renewable energy sources. Under the system, the department may not register a reduction in emissions of greenhouse gases if the reduction was made before January 1, 1991.

285.78(2)(b) (b) The department may establish and operate systems under which the department registers reductions in emissions of fine particulate matter, mercury or other air contaminants identified by the department if the reductions are made before the reductions are required by law.

285.78(2)(c) (c) The department may verify and quantify, or require the verification and quantification of, emission reductions that a person seeks to register under par. (a) or (b).

285.78(2)(d) (d) Registration of emission reductions under this section is voluntary.

285.78(3) (3) 

285.78(3)(a) (a) The department shall promulgate rules for the system under sub. (2) (a). In promulgating the rules, the department shall make the system as consistent as possible with other state, federal and international programs designed to reduce emissions of greenhouse gases.

285.78(3)(b) (b) The department shall promulgate rules for any system that the department establishes under sub. (2) (b). In promulgating the rules, the department shall make the system as consistent as possible with other state, federal and international programs designed to reduce emissions of the substances covered by the system.

285.78 History History: 1999 a. 195.

285.79 285.79 Small business stationary source technical and environmental compliance assistance program.

285.79(1) (1) Definition. In this section, “small business stationary source” means a stationary source designated under sub. (2) (a) or, except as provided in sub. (2) (b), a stationary source that satisfies all of the following criteria:

285.79(1)(a) (a) Is owned or operated by a person that employs 100 or fewer individuals.

285.79(1)(b) (b) Is a small business concern, as determined under 15 USC 632 (a).

285.79(1)(c) (c) Is not a major stationary source, as defined in rules promulgated by the department.

285.79(1)(d) (d) Does not emit 50 tons or more per year of any regulated pollutant.

285.79(1)(e) (e) Emits a total of less than 75 tons per year of all regulated pollutants.

285.79(2) (2) Designations and exclusions.

285.79(2)(a) (a) In response to a petition by a stationary source, the department may, by rule, designate as a small business stationary source any stationary source that does not meet the criteria of sub. (1) (c), (d) or (e) but that does not emit a total of more than 100 tons per year of all regulated pollutants.

285.79(2)(b) (b) The department may, by rule, after consultation with the administrators of the federal environmental protection agency and the federal small business administration, exclude from the definition of small business stationary source any category or subcategory of stationary source that the department determines to have sufficient technical and financial capabilities to meet the requirements of the federal clean air act without the assistance provided under this section.

285.79(3) (3) Assistance program. The department shall develop and administer a small business stationary source technical and environmental compliance assistance program. The program shall include all of the following:

285.79(3)(a) (a) Mechanisms to develop, collect and coordinate information concerning methods and technologies that small business stationary sources can use to comply with the federal clean air act and programs to encourage lawful cooperation among small business stationary sources or other persons to further compliance with the federal clean air act.

285.79(3)(b) (b) Mechanisms for providing small business stationary sources with information concerning alternative technologies, process changes, products and methods of operation that help reduce air pollution and with other assistance in pollution prevention and accidental release detection and prevention.

285.79(3)(c) (c) A compliance assistance program that assists small business stationary sources in determining applicable requirements under this chapter and s. 299.15 and in receiving air pollution control permits in a timely and efficient manner.

285.79(3)(d) (d) Mechanisms to ensure that small business stationary sources receive notice of their rights under the federal clean air act and state laws implementing the federal clean air act in a manner and form that assures reasonably adequate time for small business stationary sources to evaluate compliance methods and any relevant or applicable proposed or final regulation or standard issued under the federal clean air act.

285.79(3)(e) (e) Mechanisms for referring small business stationary sources to qualified auditors to determine compliance with the federal clean air act and state laws implementing the federal clean air act and other mechanisms for informing small business stationary sources of their obligations under the federal clean air act and state laws.

285.79(3)(f) (f) Procedures for consideration of a request from a small business stationary source for alteration of any required work practice or technological method of compliance with this chapter or of the schedule of measures that must be taken to implement a required work practice or method of compliance before an applicable compliance date, based on the technological and financial capability of the small business stationary source.

285.79(4) (4) Granting alterations. The department may not grant an alteration under sub. (3) (f) unless the alteration complies with the requirements of the federal clean air act and any applicable plan under s. 285.11 (6). If those applicable requirements are set forth in federal regulations, the department may only grant alterations authorized in those regulations.

285.79 History History: 1991 a. 302; 1995 a. 227 s. 462; Stats. 1995 s. 285.79; 2011 a. 32.

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

285.795 285.795 Small business environmental council.

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

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

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

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

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

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

subch. IX of ch. 285 SUBCHAPTER IX

ENFORCEMENT; PENALTIES

285.81 285.81 Hearings on certain air pollution actions.

285.81(1) (1) Permit holder; permit applicant; order recipient. Any permit, part of a permit, condition or requirement in a permit, order, decision or determination by the department under ss. 285.39, 285.60 to 285.69 or 285.75 shall become effective unless the permit holder or applicant or the order recipient seeks a hearing challenging the action in the following manner:

285.81(1)(a) (a) Petition. The person seeking a hearing shall file a petition with the department within 30 days after the date of the action sought to be reviewed. The petition shall set forth specifically the issue sought to be reviewed, the interest of the petitioner, the reasons why a hearing is warranted and the relief desired. Upon receipt of the petition, the department shall hold a hearing after at least 10 days’ notice.

285.81(1)(b) (b) Hearing. The hearing shall be a contested case under ch. 227. At the beginning of the hearing the petitioner shall present evidence in support of the allegations made in the petition. Following the hearing the department’s action may be affirmed, modified or withdrawn.

285.81(1m) (1m) Effect of a challenge.

285.81(1m)(a) (a) Subject to par. (b), if a permit holder or applicant seeks a hearing challenging part of a permit or a condition or requirement in a permit under sub. (1), the remainder of the permit shall become effective and the permit holder or applicant may, at its discretion, begin the activity for which the application was submitted or for which the permit was issued.

285.81(1m)(b) (b) An emission limitation contained in a construction permit becomes effective despite a challenge under par. (a), unless the permit holder or applicant challenging the emission limitation obtains a stay of the emission limitation from the hearing examiner or court considering the challenge.

285.81(2) (2) Other persons. Any person who is not entitled to seek a hearing under sub. (1) (intro.) and who meets the requirements of s. 227.42 (1) or who submitted comments in the public comment process under s. 285.62 (4) or (5) may seek review under sub. (1) of any permit, part of a permit, order, decision or determination by the department under ss. 285.39, 285.60 to 285.69 or 285.75.

285.81(3) (3) Mining hearing. Subsections (1) and (2) do not apply if a hearing on the matter is conducted as a part of a hearing under s. 293.43.

285.81(4) (4) Review of department determinations. An air pollution control permit, part of an air pollution control permit or determination by the department under ss. 285.39, 285.60 to 285.69 or 285.75 is not subject to review in any civil or criminal enforcement action for a violation of this chapter. This subsection does not restrict the ability of a person to challenge an administrative rule as provided in s. 227.40 (2).

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

285.81 Annotation This section permits the persons identified in subs. (1) and (2) to challenge only a part of a permit, or only certain conditions or requirements. It does not address when a decision issued by an administrative law judge after the administrative hearing is final. Sierra Club v. Department of Natural Resources, 2007 WI App 181, 304 Wis. 2d 614, 736 N.W.2d 918, 06-2653.

285.81 Annotation Sub. (4) provides in unequivocal terms that enumerated permits and determinations are not subject to review. U.S. v. Murphy Oil USA, Inc. 143 F. Supp. 2d 1054 (2001).

285.83 285.83 Violations: enforcement.

285.83(1) (1) 

285.83(1)(a) (a) If the department has reason to believe that a violation of this chapter or s. 299.15 or any rule promulgated or special order, plan approval or permit issued under this chapter or s. 299.15 has occurred, it may:

285.83(1)(a)1. 1. Cause written notice to be served upon the alleged violator. The notice shall specify the alleged violation, and contain the findings of fact on which the charge of violation is based. The notice may include an order that necessary corrective action be taken within a reasonable time. This order shall become effective unless, no later than 30 days after the date the notice and order are served, the person named in the notice and order requests in writing a hearing before the department. Upon such request, the department shall after due notice hold a hearing. Instead of an order, the department may require that the alleged violator appear before the department for a hearing at a time and place specified in the notice and answer the charges complained of; or

285.83(1)(a)2. 2. Initiate action under s. 285.59 (8) or 285.87.

285.83(1)(b) (b) If after such hearing the department finds that a violation has occurred, it shall affirm or modify its order previously issued, or issue an appropriate order for the prevention, abatement or control of the problems involved or for the taking of such other corrective action as may be appropriate. If the department finds that no violation has occurred, it shall rescind its order. Any order issued as part of a notice or after hearing may prescribe one or more dates by which necessary action shall be taken in preventing, abating or controlling the violation.

285.83(2) (2) The notice under sub. (1) (a) 1. for an alleged violation of rules promulgated under s. 285.31 (3) may include a tag or other notice placed on the dispensing equipment that is alleged to be in violation of rules promulgated under s. 285.31 (3).

285.83 History History: 1971 c. 125 s. 522 (2); 1977 c. 377; 1979 c. 34 s. 980h; 1979 c. 221 s. 2202 (39); Stats. 1979 s. 144.423; 1989 a. 284; 1991 a. 39; 1995 a. 227 s. 510; Stats. 1995 s. 285.83.

285.83 Cross-reference Cross-reference: See also chs. NR 493 and 494, Wis. adm. code.

285.85 285.85 Emergency procedure.

285.85(1) (1) If the secretary finds that a generalized condition of air pollution exists and that it creates an emergency requiring immediate action to protect human health or safety, he or she shall order persons causing or contributing to the air pollution to reduce or discontinue immediately the emission of air contaminants, and such order shall fix a place and time, not later than 24 hours thereafter, for a hearing to be held before the department. Not more than 24 hours after the commencement of such hearing, and without adjournment thereof, the natural resources board shall affirm, modify or set aside the order of the secretary.

285.85(2) (2) In the absence of a generalized condition of air pollution of the type referred to in sub. (1), if the secretary finds that emissions from the operation of one or more air contaminant sources is causing imminent danger to human health or safety, he or she may order the persons responsible for the operations in question to reduce or discontinue emissions immediately, without regard to s. 285.83. In such event, the requirements for hearing and affirmance, modification or setting aside of orders set forth in sub. (1) shall apply.

285.85 History History: 1979 c. 34 ss. 983m, 2102 (39) (g); 1979 c. 176; Stats. 1979 s. 144.424; 1995 a. 227 s. 511; Stats. 1995 s. 285.85.

285.85 Cross-reference Cross-reference: See also ch. NR 493, Wis. adm. code.

285.86 285.86 Asbestos citations.

285.86(1) (1) The department may follow the procedures for the issuance of a citation under ss. 23.50 to 23.99 to collect a forfeiture from a person who commits a violation specified under sub. (2).

285.86(2) (2) The department shall promulgate rules that specify violations of rules relating to asbestos abatement and management that are promulgated under ss. 285.11, 285.13, 285.17 and 285.27 to which sub. (1) applies. In a rule promulgated under this subsection, the department may limit the applicability of sub. (1) based on the frequency of violation and on health and environmental risks caused by the violation.

285.86(3) (3) The department shall submit any proposed rules under sub. (2) to the department of justice. The department may not promulgate a rule under sub. (2) unless the rule is approved by the department of justice.

285.86 History History: 1999 a. 9.

285.86 Cross-reference Cross-reference: See also ch. NR 447, Wis. adm. code.

285.87 285.87 Penalties for violations relating to air pollution.

285.87(1) (1) Except as provided in s. 285.57 (5) or 285.59 (8), any person who violates this chapter or any rule promulgated, any permit issued or any special order issued under this chapter shall forfeit not less than $10 or more than $25,000 for each violation. Each day of continued violation is a separate offense.

285.87(2) (2) 

285.87(2)(a) (a) Except as provided in par. (b), any person who intentionally commits an act that violates, or fails to perform an act required by this chapter, except s. 285.59, or any rule promulgated, any permit issued or any special order issued under this chapter, except s. 285.59, shall be fined not more than $25,000 per day of violation or imprisoned for not more than 6 months or both.

285.87(2)(b) (b) If the conviction under par. (a) is for a violation committed after another conviction under par. (a), the person is guilty of a Class I felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (i), the person may be fined not more than $50,000 per day of violation.

285.87 History History: 1979 c. 34; 1989 a. 284, 289; 1993 a. 243; 1995 a. 227 s. 511; Stats. 1995 s. 285.87; 1997 a. 283; 2001 a. 109.

285.87 Cross-reference Cross-reference: See also ch. NR 494, Wis. adm. code.

285.87 Annotation In determining an entity’s civil forfeitures, the trial court can consider its cooperation in remediation, its initiation of remedial activities, the environmental harm caused, and the degree of its culpability. The trial court acted within its discretion in imposing a forfeiture against a contractor for its role in improperly removing asbestos although a separate contractor was responsible for the removal. State v. T.J. McQuay, Inc, 2008 WI App 177, 315 Wis. 2d 214, 763 N.W.2d 148, 07-2449.

285.87 Annotation Because the causes of action asserted against the defendant for violating administrative rules governing the handling of asbestos did not exist and were not known or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848, the defendant had no constitutional right to a jury trial. State v. T.J. McQuay, Inc, 2008 WI App 177, 315 Wis. 2d 214, 763 N.W.2d 148, 07-2449.