Chapter 287

287.11(2m)(b)2. 2. The cost of disposing of processed material.

287.11(2m)(c) (c) The department may on its own initiative grant, to one or more responsible units that have been determined to have effective recycling programs under this section, a variance to the applicable requirements in sub. (2) (b) and (er) for up to one year for a material identified in s. 287.07 (3) or (4) that is generated in the responsible units’ regions if the department determines that the cost of selling processed material exceeds the amount under par. (b) 1. or 2.

287.11(2p) (2p) Materials excepted from prohibitions on land disposal and incineration.

287.11(2p)(a) (a) The requirements of sub. (2) (b) and (er) do not apply to a material that is subject to an exception under s. 287.07 (7) (b), (bg) or (c) or a waiver or conditional waiver under s. 287.07 (7) (h).

287.11(2p)(b) (b) The requirements of sub. (2) (er) do not apply to a material that is subject to an exception under s. 287.07 (7) (f) or a waiver or conditional waiver under s. 287.07 (7) (g).

287.11(2p)(c) (c) The department may grant a responsible unit an exception to an applicable requirement in sub. (2) (b) or (er) for up to one year for a material that is subject to an exception under s. 287.07 (7) (d).

287.11(2p)(d) (d) A responsible unit may not prohibit the beneficial reuse of a material within a solid waste disposal facility if the beneficial reuse of the material is approved in the solid waste disposal facility’s plan of operation under s. 289.30.

287.11(2p)(e) (e) A responsible unit may not prohibit the disposal in a solid waste disposal facility or the burning in a solid waste treatment facility of any material for which the department has granted a waiver or conditional waiver under s. 287.07 (7) (g).

287.11(2s) (2s) Notification.

287.11(2s)(a) (a) The department shall notify the department of agriculture, trade and consumer protection whenever variances granted under sub. (2m) (b) for a plastic container, foam polystyrene packaging or any type of packaging that contains carbonated or malt beverages are in effect for responsible units representing 25 percent or more of the state’s population.

287.11(2s)(b) (b) The department shall notify the department of agriculture, trade and consumer protection if, within 2 years after providing notification under par. (a) for a packaging material, the condition under par. (a) no longer exists for that packaging material.

287.11(3) (3) List. The department shall prepare and periodically update a list of responsible units that have an effective recycling program.

287.11 History History: 1989 a. 335, 359; 1993 a. 245, 345; 1995 a. 142; 1995 a. 227 s. 894; Stats. 1995 s. 287.11; 1997 a. 27, 60; 1999 a. 9; 2001 a. 16; 2003 a. 321; 2011 a. 32; 2013 a. 166.

287.11 Note Note: The 7th circuit court of appeals in National Solid Waste Management Assn. v. Meyer, 165 F.3d 1151 (1999), held unconstitutional the requirement that out-of-state waste may not be disposed of in this state unless the originating community enacts an ordinance in compliance with Wisconsin’s recycling program.

287.11 Cross-reference Cross-reference: See also chs. NR 542 and 544, Wis. adm. code.

287.13 287.13 Municipal waste flow control; required use of recycling or resource recovery facility.

287.13(1) (1) Definitions. In this section:

287.13(1)(b) (b) “Collection” means the aggregating of solid waste from its primary source and includes all activities up to such time as the waste is delivered to a facility for transfer, processing or disposal.

287.13(1)(d) (d) “Facilities for the recycling of solid waste or for the recovery of resources from solid waste” means facilities the primary use of which is to convert or recycle solid waste into usable materials, products or energy or to incinerate solid waste for energy recovery.

287.13(1)(e) (e) “Municipality” means a county, a city, a village or a town if the town has a population of 10,000 or more. Notwithstanding the fact that the population of a town is less than 10,000, if the town enters into an agreement with a city or village concerning the establishment of a facility for the recycling of solid waste or for the recovery of resources from solid waste and concerning the required use of that facility, the town shall be considered a municipality except the town may not be the municipality responsible for a facility.

287.13(1)(f) (f) “Local unit of government” includes a county, city, village, town, school district, county utility district, sanitary district or metropolitan sewerage district.

287.13(1)(g) (g) “Person” includes individuals, partnerships, associations, limited liability companies, corporations and local units of government.

287.13(1)(h) (h) “Recycling” means the transfer, transporting, processing, marketing and conversion of solid wastes into usable materials or products and includes the stockpiling and disposal of nonusable portions of solid wastes, but does not include the collection of solid wastes.

287.13(1)(i) (i) “Sewage or industrial waste sludge” means the residue material resulting from the treatment of sewage or industrial waste water.

287.13(2) (2) Required use; implementation procedure. A municipality may require any local unit of government, occupant of a single-family or multifamily residence, retail business, commercial business or industry to use a facility for the recycling of solid waste or for the recovery of resources from solid waste generated within the limits of the municipality which is not exempt under sub. (5) if:

287.13(2)(a) (a) The municipality adopts an initial intent resolution.

287.13(2)(b) (b) The municipality prepares or arranges for the preparation of a comprehensive facility project description report and submits this report to the department.

287.13(2)(c) (c) The municipality determines that required usage of the facility is in the best public interest.

287.13(2)(d) (d) The facility is constructed, operated, maintained, expanded, modified and closed in compliance with this chapter and chs. 281, 285 and 289 to 299 and all necessary permits, licenses and approvals required by the department are obtained.

287.13(2)(e) (e) The municipality adopts a valid solid waste flow control ordinance and issues a required use order.

287.13(3) (3) Required use; joint implementation procedure. Two or more municipalities may enter into an agreement concerning the establishment of a facility for the recycling of solid waste or for the recovery of resources from solid waste and concerning the required use of that facility. The municipalities which enter into this type of agreement may require any local unit of government, occupant of a single-family or multifamily residence, retail business, commercial business or industry to use a facility for the recycling of solid waste or for the recovery of resources from solid waste generated within the limits of those municipalities which is not exempt under sub. (5) if:

287.13(3)(a) (a) Each of the municipalities adopts an initial intent resolution.

287.13(3)(b) (b) The municipality which is responsible for the facility prepares or arranges for the preparation of a comprehensive facility project description report and submits this report to the department.

287.13(3)(c) (c) Each of the municipalities determines that the required use is in the best public interest.

287.13(3)(d) (d) The facility is constructed, operated, maintained, expanded, modified and closed in compliance with this chapter and chs. 281, 285 and 289 to 299 and all necessary permits, licenses and approvals required by the department are obtained.

287.13(3)(e) (e) Each of the municipalities adopts a valid solid waste flow control ordinance and issues a required use order.

287.13(4) (4) Required use; conflicts between municipalities.

287.13(4)(a) (a) Conflicts in nonpopulous counties. If one municipality has a valid initial intent resolution, no other municipality may adopt an initial intent resolution or municipal waste flow control ordinance which covers the same type of solid waste generated in the same recycling or resource recovery area unless the first municipality revises its initial intent resolution or adopts a municipal waste flow control ordinance so that there is no conflict. This paragraph is not applicable to a county with a population of 750,000 or more or to any municipality in this type of county.

287.13(4)(b) (b) Conflicts in a populous county.

287.13(4)(b)1. 1. If a city, a village or a town which is a municipality in a county with a population of 750,000 or more has a valid initial intent resolution, the county may not adopt an initial intent resolution or municipal waste flow control ordinance which covers the same type of solid waste generated in the same recycling or resource recovery area unless the city, a village or a town which is a municipality revises its initial intent resolution or adopts a municipal waste flow control ordinance so that there is no conflict.

287.13(4)(b)2. 2. An initial intent resolution for a county with a population of 750,000 or more is not valid for a city, a village or a town which is a municipality in that county if the city, a village or a town which is a municipality adopts a resolution of refusal to participate in a county waste flow control program within 6 weeks after the county initial intent resolution is adopted and if the city, a village or a town which is a municipality adopts an initial intent resolution of its own within 3 months after the county initial intent resolution is adopted.

287.13(5) (5) Exemption for certain solid wastes. A municipality may not require the use of a facility for:

287.13(5)(a) (a) Solid waste produced by a retail business, commercial business or industry which is privately processed and reused.

287.13(5)(b) (b) Solid waste consisting of scrap, new material or used material which is separated from other waste for sale, reuse or recycling.

287.13(5)(c) (c) Solid waste from a single-family dwelling which is disposed of on or held for disposal on land surrounding the dwelling by a person who owns or leases and occupies the dwelling and owns or leases the surrounding land.

287.13(5)(d) (d) Solid waste which is sewage or industrial waste sludge.

287.13(5)(e) (e) Solid waste produced by a commercial business or industry which is disposed of or held for disposal in an approved facility, as defined under s. 289.01 (3), or a mining waste site, as defined in s. 295.41 (31), covered by a mining permit under s. 295.58, owned or leased by the generator or on which the generator holds an easement and designed and constructed for the purpose of accepting that type of solid waste.

287.13(5)(f) (f) Solid waste received and processed by a recycling or resource recovery facility which exists on January 1, 1984, or for which a feasibility report, a permit application or other application is submitted to the department on or before January 1, 1984.

287.13(5)(g) (g) Solid waste generated within a town if the town voluntarily has entered into an agreement or contract with a city or village for the recycling or the recovery of resources from these wastes and if the city or village has adopted a waste flow control ordinance or if the facility operated by the city or village may receive waste under par. (f).

287.13(5)(h) (h) Solid waste which is a type of waste which the municipality determines is unsuitable for recycling or resource recovery at the facility.

287.13(5)(i) (i) Solid waste that consists of eligible electronic devices, as defined in s. 287.17 (1) (gs), used by households or covered schools.

287.13(6) (6) Initial intent resolution. A municipality may adopt an initial intent resolution at any time except as provided under sub. (4) and except that a municipality may not adopt more than one initial intent resolution covering a specific recycling or resource recovery service area within a 10-year period. An initial intent resolution remains valid only if a comprehensive facility project description report is submitted within 2 years after that resolution is adopted and if a municipal waste flow control ordinance is adopted within 5 years after that resolution is adopted. An initial intent resolution shall include:

287.13(6)(a) (a) A statement of the municipality’s intention to establish or utilize or to contract for the establishment or utilization of a facility for the recycling of solid waste or for the recovery of resources from solid waste or, if the municipality enters into an agreement under sub. (3) but is not the responsible municipality, a statement of the municipality’s intention to participate in that project.

287.13(6)(b) (b) A statement of the municipality’s intention to adopt a solid waste flow control ordinance.

287.13(6)(c) (c) A description of the types of solid waste which may be subject to the ordinance.

287.13(6)(d) (d) A description of the anticipated recycling or resource recovery area which may be subject to the ordinance.

287.13(7) (7) Comprehensive facility project description report. After an initial intent resolution is adopted and prior to the adoption of a waste flow control ordinance, the responsible municipality is required to prepare or arrange for the preparation of a comprehensive facility project description report and submit it to the department for review in order to assess the environmental regulatory permits, licenses and approvals required for the facility and to determine the acceptability of the proposed effective period. At a minimum, this report shall include:

287.13(7)(a) (a) A detailed description of the proposed facility for the recycling of solid waste or for the recovery of resources from solid waste, including details on facility size and location, preliminary engineering design plans, a study of the required waste quantities and waste composition and a detailed report of the facility anticipated capital and operating costs.

287.13(7)(b) (b) A detailed description of methods for transporting solid wastes to the facility including transportation routes, transfer facilities and estimates on proposed collection, storage, transportation and residual disposal costs.

287.13(7)(c) (c) An identification of energy or material markets; a project timetable and implementation schedule; an identification of parties responsible for facility procurement; and a summary of the tipping fee, schedule of rates and other charges required for facility implementation.

287.13(7)(d) (d) An identification of the quantity, composition and types of solid waste to be processed at the proposed facility for the recycling of solid waste or for the recovery of resources from solid waste, an identification of the quantity, composition and types of solid waste in the municipality which are not to be processed at that facility, plans for the treatment or disposal of this residual solid waste and a summary of the economic and environmental impacts of the reduction in volume or the change in characteristics of the residual solid waste on existing solid waste treatment and disposal facilities serving the recycling or resource recovery area.

287.13(7)(e) (e) The proposed effective period for any municipal waste flow control ordinance adopted for the facility. The department shall determine if the proposed effective period is acceptable based upon all of the following:

287.13(7)(e)1. 1. The expected life of the facility.

287.13(7)(e)2. 2. The length of time required to finance the capital cost of the facility.

287.13(7)(e)3. 3. The potential for the development of improved or alternate methods or technology for the recycling or the recovery of resources from the types of solid waste to be processed at the facility.

287.13(7m) (7m) Amendment of resolution or report. A municipality may amend an initial intent resolution adopted under sub. (6) or a comprehensive facility project description report prepared under sub. (7) before the adoption of the municipal waste flow control ordinance. If the amendment is adopted after the public hearing under sub. (9), the municipality shall publish a notice of the amendment and the opportunity for a hearing, and shall conduct a public hearing if requested by 6 or more residents of the municipality. After the public hearing, or after the deadline for requesting a hearing if none is requested, the municipality shall issue a modified determination concerning best public interest under sub. (8) and any person adversely affected by the municipality’s modified determination concerning best public interest may appeal the determination under ch. 68.

287.13(8) (8) Best public interest; criteria. A municipality may determine that a required usage is in the best public interest if it finds the:

287.13(8)(a) (a) Required use will result in reuse or recovery of material from solid waste.

287.13(8)(b) (b) Required use will lessen the demand for solid waste disposal facilities.

287.13(8)(c) (c) Required use will conserve natural resources or energy.

287.13(8)(d) (d) Required use is necessary to obtain the type and quantity of solid waste necessary for operational volumes needed to make the facility economically feasible.

287.13(8)(e) (e) Alternatives to required use which may be used to obtain the necessary type and quantity of solid waste have been compiled, analyzed and considered.

287.13(8)(f) (f) Required use is consistent with planning efforts of the municipality.

287.13(8)(h) (h) Operation of the facility is technically feasible and will not result in significant adverse environmental impacts based upon a comprehensive facility project description report prepared under sub. (7).

287.13(8)(i) (i) Required use and operation of the facility will be responsive to the extent feasible with legitimate public concerns expressed at the public hearing under sub. (9).

287.13(8)(j) (j) Construction, operation, maintenance, expansion, modification and closure of the facility will comply with chs. 281, 285 and 289 to 299 and all permits, licenses and approvals required by the department will be obtained.

287.13(8)(k) (k) Proposed effective period is reasonable based upon the factors specified under sub. (7) (e) 1. to 3.

287.13(9) (9) Best public interest; hearing; appeals.

287.13(9)(a) (a) A municipality shall conduct a public hearing and permit public participation at that hearing prior to issuing any determination concerning best public interest under sub. (8).

287.13(9)(b) (b) Any person adversely affected by the municipality’s determination concerning best public interest under sub. (8) may appeal the determination under ch. 68.

287.13(10) (10) Municipal waste flow control ordinance. Except as provided under sub. (4), a municipality may adopt a municipal waste flow control ordinance if the municipality adopted an appropriate initial intent resolution under sub. (6), if the municipality or, if the municipality enters into an agreement under sub. (3), the responsible municipality submitted the necessary comprehensive facility project description report required under sub. (7), if the municipality issued a determination of best public interest utilizing criteria under sub. (8) after conducting the hearing required under sub. (9) and if the facility complies with this chapter and chs. 281, 285 and 289 to 299 and all permits, licenses and approvals required by the department are obtained. The municipal waste flow control ordinance shall include:

287.13(10)(a) (a) A description of the applicable facility for the recycling of solid waste or for the recovery of resources from solid waste.

287.13(10)(b) (b) A description of the recycling or resource recovery area subject to the ordinance and for which a required use order may be issued.

287.13(10)(c) (c) A description of the types and quantities of solid waste which are subject to the ordinance and for which a required use order may be issued.

287.13(10)(d) (d) A description of the persons who are subject to the ordinance and who may be required to use the facility under a required use order.

287.13(10)(e) (e) A description of the minimums and maximums for the tipping fee, schedule of rates and other charges which may be imposed for use of the facility without amendment or revision of the ordinance.

287.13(10)(f) (f) The effective period of the municipal waste flow control ordinance. The effective period and any revision of the effective period is required to be approved by the department based upon factors specified under sub. (7) (e) 1. to 3. A municipal waste flow control ordinance is not valid after the expiration of its effective period.

287.13(10)(g) (g) A description of the methods proposed to be used to meet the recycling requirements of sub. (17).

287.13(11) (11) Required use order. A municipality may issue a required use order following the procedures required under sub. (12) if it adopted a municipal waste flow control ordinance and if the order is consistent with that ordinance. A required use order shall include: