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Hearing Conference On Contested Case Hearing To Issue An Air Pollution Control Construction Permit To Nemadji Trail Energy Center

RESCHEDULED TO

Date: 12/02/2024

Time: 9:00 a.m. - End of Agenda

Location: In-Person & Virtual Options; See Details for Information

Susan Burns, Susan.Burns2@wisconsin.gov

Editor’s Note: This hearing has been rescheduled from Sept. 23 to Dec. 2, 2024, and the issues of the hearing have been amended.

On Sept. 19, 2023, the Wisconsin Department of Natural Resources (Department) issued Air Pollution Control Construction Permit 21-JAM-212 to the Nemadji Trail Energy Center (FID 816127840) (Owners). On Oct. 18, 2023, Sierra Club and Don C. Faith III (Petitioners) each filed a Petition for a Contested Case Hearing with the Department pursuant to Wis. Stat. §§ 227.42-227.50 and 285.81.

By letters dated Nov. 6, 2023, the Department granted each of the Petitioner’s request for a contested case hearing on certain issues. On July 2, 2024, the undersigned Administrative Law Judge granted the Department’s motion and the Owner’s motion for summary judgment as to one of the issues. Therefore, the issues for hearing are:

1. Whether the Department violated Wis. Stat. § 1.11 and/or Wis. Admin. Code ch. 150 because (a) the Department failed to determine whether it needed to supplement the 2019 Final Environmental Impact Statement  (FEIS) in light of the “significant developments” identified on page 4 of Sierra Club’s Petition; (b) the Department failed to solicit comments on the FEIS prior to issuing the permit; and (c) the FEIS did not adequately address reasonable alternatives to the proposed project and secondary and cumulative effects of the proposed project.
2. Whether the Department’s assumptions pertaining to start up and shut down underestimated the impact of the facility on air quality and resulted in emission limits in the permit for nitrogen oxides will cause or contribute to air pollution in excess of the National Ambient Air Quality Standard contrary to Wis. Stat. §§ 285.63 and 285.65.
3. Whether the Department committed legal error during its permitting process by relying on an internal memorandum entitled “Guidance on Background Concentrations” and a dispersion modeling policy entitled “Wisconsin Air Dispersion Modeling Guidelines (AM-528)” because these two documents were not promulgated as administrative rules under Wis. Stat. § 227.01(13).
4. Whether the Department considered all information necessary for its determination that the best available control technology (BACT) would be applied in accordance with Wis. Admin. Code § NR 405.12(12).
5. Whether the permit incorporates limits for pollutants that reflect the best available control technology as required by Wis. Stat. § 285.63(3)(a) for greenhouse gases, particulate matter, sulfuric acid mist, volatile organic compounds (VOCs) and carbon monoxide (CO), and for startup and shut down.
6. Whether BACT for VOC and greenhouse gases should be based on low leaking valves.
7. Whether the Department improperly rejected alternatives to sulfur hexafluoride for use in the low-side generator circuit breakers.
8. Whether more restrictive limits on the use of diesel fuel oil “would fundamentally redefine the nature of the source” of air emissions proposed by the permit applicants.
9. Whether the Department sufficiently addressed a separate limit on the use of distillate fuel oil for non-emergency uses.
10. Whether the Department improperly omitted the NSPS non-emergency limit of 100 hours per year (12 month rolling average) in the emergency engine PSD BACT.

On Dec. 14, 2023, the Division of Hearings and Appeals received, for filing, an original request for hearing from the Department. The parties have conferred and agreed to a new date for a hearing.

NOTICE IS HEREBY GIVEN that the State of Wisconsin Division of Hearings and Appeals will hold a contested case hearing on the above-captioned matter pursuant to Wis. Stat. §§ 227.44-227.46, Wis. Admin. Code §§ NR 2.08 and 2.13 and HA 1.12 at the Hill Farms State Office Building, Room 148, 4822 Madison Yards Way, Madison, Wisconsin on Dec. 2, 2024, and continuing if necessary through Dec. 6, 2024, as needed. The proceedings will commence at 9 a.m. each day.

Members of the public will be allowed to offer sworn comments on the record at the outset of the hearing on Monday, Dec. 2, 2024 at 9 a.m. Public comments will be limited in time and limited in scope to the issues identified above.

Pursuant to the Americans With Disabilities Act, reasonable accommodations will be made to any qualified individual upon request. Please call the Division of Hearings and Appeals at 608-266-7709 with specific information on your request at least five business days prior to the date of the scheduled hearing.