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

Date: 08/06/2024

Time: 10:00 a.m. - End of Agenda

Location: Virtual

Susan Burns, Susan.Burns2@wisconsin.gov

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) (Permittee). 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. The issues for hearing are:

1. 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 42-month term of the permit is unreasonably long under Wis. Stat. § 285.66.
   10. Whether the Department sufficiently addressed a separate limit on the use of distillate fuel oil for non-emergency uses.
   11. 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 date for a prehearing conference and hearing.

NOTICE IS HEREBY GIVEN that the State of Wisconsin Division of Hearings and Appeals will hold a prehearing conference on the above-captioned matter pursuant to Wis. Stat. § 227.46(1) and Wis. Admin. Code §§ NR 2.08(5) and 2.12, at 10:00 am on Aug. 6, 2024, via Microsoft Teams. Interested persons may request an email invitation to the Teams Telephone Conference by contacting the Division of Hearings and Appeals at (608) 266-7709. In the alternative, those interested may participate by telephone by calling (608) 571-2209 and entering Meeting ID 812 512 085#.

Any person, organization, or governmental unit wishing to become a party to this proceeding must attend the conference personally or by an authorized representative. The purpose of the prehearing conference will be to identify parties to the proceeding, to simplify or clarify the issues which may be contested at the hearing, identify witnesses, discuss the exchange of exhibits, establish a discovery schedule, address any other matters as may aid in the disposition of the action, and confirm the date for the contested case hearing. No testimony will be heard at the prehearing conference.

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 prior to the date of the scheduled prehearing or hearing.