Air permit | Regulations | Regulations

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

Date: 09/23/2024

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

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

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 contested case hearing on the above-captioned matter pursuant to Wis. Stat. § 227.44, Wis. Admin. Code § NR 2.13 and Wis. Admin. Code § HA 1.12 at the Hill Farms State Office Building, Room 149, 4822 Madison Yards Way, Madison, Wisconsin on Sept. 23, 2024, and continuing if necessary through Sept. 27, 2024, as needed. The proceedings will commence at 9 a.m. each day.

Members of the public may participate in or attend the hearing in person or by video. A video connection for the hearing will be available via Microsoft Teams. Interested persons may request an email invitation to the video feed by contacting the Division of Hearings and Appeals at (608) 266-7709. Alternatively, those interested may participate by video by logging into Microsoft Teams and using the meeting ID: 231 906 781 246 and the passcode b4qq9o. An audio-only feed is available by calling (608) 571-2209 and entering phone conference ID 421 117 2#.

Members of the public desiring to participate in this hearing pursuant to Wis. Admin. Code § NR 2.08 will be allowed the opportunity to do so at the end of the presentation of evidence. Such interested persons must enter an appearance either prior to or at the commencement of the contested case hearing. Information about the hearing may be found at the Department’s Website (https://dnr.wi.gov/Calendar/Hearings/) and can also be requested from Susan Burns at (608) 266-3865. Please monitor the Department’s website for updates.

The hearing is a Class 1 contested case pursuant to Wis. Stat. § 227.01(3)(a), and the fair play provisions of Wis. Stat. ch. 227 will apply. The procedures relating to contested cases set forth in Wis. Admin. Code Ch. NR 2 will be followed. Said procedures will closely resemble those that are normally followed at a trial in State circuit court. All parties are advised that they have the right to seek the aid and assistance of legal counsel and to be represented by legal counsel at the contested case hearing.

The permits, petitions and other information relating to the petitioner are on file and may be inspected and copied at the offices of the Department of Natural Resources, 101 South Webster Street, Madison, Wisconsin, between the hours of 9 a.m. and 3:30 p.m., Monday through Friday, holidays excepted. Copies of documents on file related to the permit may be obtained by writing to the Department of Natural Resources, P.O. Box 7921, Madison, Wisconsin, 53707-7921. Reasonable costs will be charged for copies of all information excluding public notices and fact sheets.

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.