Chapter 289

289.01 Annotation A violation of rules promulgated under ss. 144.43 and 144.44 [now this chapter] does not give rise to a private right of action. Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639, 476 N.W.2d 593 (Ct. App. 1991).

289.01 Annotation Under sub. (33), “‘solid waste’ means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded or salvageable materials . . .” Cigarette butts manifestly constitute “other discarded . . . materials.” State v. Iverson, 2015 WI 101, 365 Wis. 2d 302, 871 N.W.2d 661, 14-0515.

subch. II of ch. 289 SUBCHAPTER II

ADMINISTRATION; SOLID WASTE
MANAGEMENT STANDARDS

289.05 289.05 Solid waste management standards.

289.05(1) (1) The department shall promulgate rules establishing minimum standards for the location, design, construction, sanitation, operation, monitoring and maintenance of solid waste facilities. Following a public hearing, the department shall promulgate rules relating to the operation and maintenance of solid waste facilities as it deems necessary to ensure compliance and consistency with the purposes of and standards established under the resource conservation and recovery act, except that the rules relating to open burning shall be consistent with s. 289.51. The rules promulgated under this subsection shall conform to the rules promulgated under sub. (2).

289.05(2) (2) With the advice and comment of the metallic mining council, the department shall promulgate rules for the identification and regulation of metallic mining wastes. The rules promulgated to identify metallic mining wastes and to regulate the location, design, construction, operation and maintenance of facilities for the disposal of metallic mining wastes shall be in accordance with any or all of the provisions under this chapter and chs. 30 and 283. The rules shall take into consideration the special requirements of metallic mining operations in the location, design, construction, operation and maintenance of facilities for the disposal of metallic mining wastes as well as any special environmental concerns that will arise as a result of the disposal of metallic mining wastes. In promulgating the rules, the department shall give consideration to research, studies, data and recommendations of the U.S. environmental protection agency on the subject of metallic mining wastes arising from the agency’s efforts to implement the resource conservation and recovery act.

289.05(3) (3) The department shall prescribe by rule minimum standards for closing, long-term care and termination of solid waste disposal facilities or hazardous waste facilities. The standards and any additional facility-specific requirements designated by the department shall be incorporated into the plan of operation prepared under s. 289.30. The long-term care provisions in an approved plan of operation may be modified under s. 289.30 (8) (a) 3. or (b).

289.05(4) (4) The department shall promulgate, by rule, standards for the reuse of foundry sand and other high-volume industrial waste, including high-volume industrial waste that qualifies for an exemption from regulation under s. 289.43 (8). The department shall design the rules under this subsection to allow and encourage, to the maximum extent possible consistent with the protection of public health and the environment, the beneficial reuse of high-volume industrial waste, in order to preserve resources, conserve energy and reduce or eliminate the need to dispose of high-volume industrial waste in landfills. In developing rules under this subsection, the department shall review methods of reusing high-volume industrial waste that are approved by other states and incorporate those methods to the extent that the department determines is advisable. In developing rules under this subsection, the department shall also consider the analysis and methodology used under 40 CFR 503.13 in determining the impacts on groundwater from various methods of reusing high-volume industrial wastes.

289.05 History History: 1995 a. 227 ss. 530, 534.

289.06 289.06 Department duties. The department shall:

289.06(1) (1) Promulgate rules implementing and consistent with this chapter and ss. 292.31 and 292.35.

289.06(2) (2) Encourage voluntary cooperation by persons and affected groups to achieve the purposes of this chapter and ss. 292.31 and 292.35.

289.06(3) (3) Encourage local units of government to handle solid waste disposal problems within their respective jurisdictions and on a regional basis, and provide technical and consultative assistance for that purpose.

289.06(4) (4) Collect and disseminate information and conduct educational and training programs relating to the purposes of this chapter and ss. 292.31 and 292.35.

289.06(5) (5) Organize a comprehensive and integrated program to enhance the quality, management and protection of the state’s land and water resources.

289.06(6) (6) Provide technical assistance for the closure of a solid waste disposal facility that is a nonapproved facility.

289.06 History History: 1995 a. 227 s. 522, 991.

289.06 Cross-reference Cross-reference: See also NR ch. 500- and NR ch. 700-, Wis. adm. code.

289.07 289.07 Department powers. The department may:

289.07(1) (1) Hold hearings relating to any aspect of the administration of this chapter and ss. 292.31 and 292.35 and, in connection therewith, compel the attendance of witnesses and the production of evidence.

289.07(2) (2) Secure necessary scientific, technical, administrative and operational services, including laboratory facilities, by contract or otherwise.

289.07(3) (3) Advise, consult, contract and cooperate with other agencies of the state, local governments, industries, other states, interstate or interlocal agencies, and the federal government, and with interested persons or groups.

289.07(4) (4) Conduct or direct scientific experiments, investigations, demonstration grants and research on any matter relating to solid waste disposal, including, but not limited to, land fill, disposal and utilization of junked vehicles, and production of compost.

289.07 History History: 1995 a. 227 ss. 523, 525, 632.

289.08 289.08 Duties of metallic mining council.

289.08(1) (1) The metallic mining council shall advise the department on the implementation of ss. 289.05, 289.21 to 289.32, 289.34, 289.42, 289.43, 289.46, 289.47, 289.62 to 289.64, 289.67, 289.68 and 292.31 and chs. 291 and 293 as those sections and chapters relate to metallic mining in this state.

289.08(2) (2) The council shall serve as an advisory, problem-solving body to work with and advise the department on matters relating to the reclamation of mined land in this state and on methods of and criteria for the location, design, construction and operation and maintenance of facilities for the disposal of metallic mine-related wastes.

289.08(3) (3) All rules proposed by the department relating to the subjects specified in this section shall be submitted to the council for review and comment prior to the time the rules are proposed in final draft form by the department. The department shall transmit the written comments of all members of the council submitting written comments with the summary of the proposed rules to the presiding officer of each house of the legislature under s. 227.19 (2).

289.08(4) (4) Written minutes of all meetings of the council shall be prepared by the department and made available to all interested parties upon request.

289.08 History History: 1979 c. 355; 1981 c. 374 s. 148; 1983 a. 410 s. 2202 (38); 1985 a. 182; 1995 a. 227 s. 629; Stats. 1995 s. 289.08.

289.09 289.09 Confidentiality of records.

289.09(1) (1) Records. Except as provided under sub. (2), any records or other information furnished to or obtained by the department in the administration of this chapter and ss. 287.27 and 299.15 are public records subject to s. 19.21.

289.09(2) (2) Confidential records.

289.09(2)(a) (a) Application.

289.09(2)(a)1. 1. An owner or operator of a solid waste facility may seek confidential treatment of any records or other information furnished to or obtained by the department in the administration of this chapter and s. 299.15.

289.09(2)(a)2. 2. A licensed hauler who transports solid waste to a facility listed in s. 289.57 (1) may seek confidential treatment of information submitted under s. 289.57 (1) (d).

289.09(2)(a)3. 3. An owner or operator of a materials recovery facility, as defined in s. 287.27 (1), may seek confidential treatment of information submitted under s. 287.27 (3).

289.09(2)(b) (b) Standards for granting confidential status. Except as provided under par. (c), the department shall grant confidential status for any records or information received by the department and certified by the owner or operator of the solid waste facility or materials recovery facility or by the licensed hauler as relating to production or sales figures or to processes or production unique to the owner or operator of the solid waste facility or materials recovery facility or which would tend to adversely affect the competitive position of the owner or operator if made public.

289.09(2)(c) (c) Emission data; analyses and summaries. The department may not grant confidential status for emission data. Nothing in this subsection prevents the department from using records and other information in compiling or publishing analyses or summaries relating to the general condition of the environment if the analyses or summaries do not identify a specific owner or operator or the analyses or summaries do not reveal records or other information granted confidential status.

289.09(2)(d) (d) Use of confidential records. Except as provided under par. (c) and this paragraph, the department or the department of justice may use records and other information granted confidential status under this subsection only in the administration and enforcement of this chapter, ch. 287 or s. 299.15. The department or the department of justice may release for general distribution records and other information granted confidential status under this subsection if the owner or operator expressly agrees to the release. The department of natural resources or the department of justice may release on a limited basis records and other information granted confidential status under this subsection if the department of natural resources or the department of justice is directed to take this action by a judge or hearing examiner under an order which protects the confidentiality of the records or other information. The department of natural resources or the department of justice may release to the U.S. environmental protection agency, or its authorized representative, records and other information granted confidential status under this subsection if the department of natural resources or the department of justice includes in each release of records or other information a request to the U.S. environmental protection agency, or its authorized representative, to protect the confidentiality of the records or other information.

289.09 History History: 1979 c. 34; 1979 c. 221 s. 2202 (39); 1981 c. 374; 1987 a. 384; 1989 a. 335; 1995 a. 227 s. 528; Stats. 1995 s. 289.09; 1997 a. 60.

289.10 289.10 County solid waste management plans.

289.10(1) (1) Each county board individually or jointly with another county board may prepare and adopt a county solid waste management plan consistent with state criteria.

289.10(2) (2) All county plans shall be submitted to the department for review. Within 90 days after submittal, the department shall approve or disapprove the plans. During its review, the department shall consult with the appropriate regional planning commission or other planning agency to determine whether any facility use and operation is in conflict with any plans adopted by such agency.

289.10(3) (3) The department shall by rule adopt county solid waste management criteria for the development of the plans permitted under this section.

289.10 History History: 1971 c. 130; 1973 c. 305; 1975 c. 20; 1977 c. 377; 1979 c. 34 s. 984rt; Stats. 1979 s. 144.437; 1981 c. 374 s. 148; 1983 a. 27; 1995 a. 227 s. 536; Stats. 1995 s. 289.10; 1997 a. 35.

289.11 289.11 Federal aid. Subdivisions of this state and interlocal agencies may make application for, receive, administer and expend any federal aid for the development and administration of programs related to solid waste facilities if first submitted to and approved by the department. The department shall approve any such application if it is consistent with the purposes of this chapter and any other applicable requirements of law.

289.11 History History: 1979 c. 34; 1981 c. 374 s. 148; 1995 a. 227 s. 527; Stats. 1995 s. 289.11.

289.12 289.12 Landfill official liability.

289.12(1) (1) Definition. As used in this section, “landfill official” means any officer, official, agent or employee of the state, a political corporation, governmental subdivision or public agency engaged in the planning, management, operation or approval of a solid or hazardous waste disposal facility.

289.12(2) (2) Exemption from liability. A landfill official is immune from civil prosecution for good faith actions taken within the scope of his or her official duties under this chapter or ch. 291 or 292.

289.12 History History: 1983 a. 410; Stats. 1983 s. 144.795; 1983 a. 538 s. 158; Stats. 1983 s. 144.446; 1995 a. 227 s. 627; Stats. 1995 s. 289.12.

subch. III of ch. 289 SUBCHAPTER III

FACILITIES; SITING

289.21 289.21 Initial site report.

289.21(1) (1) Initial site report required. Prior to constructing a landfill, the person who seeks to construct the facility shall submit to the department an initial site report. The department shall specify by rule the minimum contents of an initial site report.

289.21(2) (2) Determination if initial site report is complete. Within 30 days after an initial site report is submitted, the department shall either determine that the initial site report is complete or notify the applicant in writing that the initial site report is not complete and specify the information which is required to be submitted before the initial site report is complete. The department shall notify the applicant in writing when the initial site report is complete.

289.21 History History: 1995 a. 227 s. 543.

289.22 289.22 Local approval.

289.22(1) (1) Definition. In this section, “local approval” has the meaning specified under s. 289.33 (3) (d).

289.22(1m) (1m) Application for local approvals required. Prior to constructing a solid waste disposal facility or hazardous waste facility, the applicant shall submit a written request for the specification of all applicable local approvals to each affected municipality. Within 15 days after the receipt of a written request from the applicant, a municipality shall specify all local approvals for which applications are required or issue a statement that there are no applicable local approvals. Prior to constructing a solid waste disposal facility or a hazardous waste facility, the applicant shall apply for each local approval required to construct the waste handling portion of the facility.

289.22(2) (2) Standard notice. The waste facility siting board shall develop and print a standard notice designed to inform an affected municipality of the time limits and requirements for participation in the negotiation and arbitration process under s. 289.33. An applicant shall submit a copy of this standard notice, if it has been printed, with any written request submitted under sub. (1m).

289.22(3) (3) Attempts to obtain local approvals required. Following applications for local approvals under sub. (1m) and prior to submitting a feasibility report, any applicant subject to s. 289.33 shall undertake all reasonable procedural steps necessary to obtain each local approval required to construct the waste handling portion of the facility except that the applicant is not required to seek judicial review of decisions of the local unit of government.

289.22(4) (4) Waiver of local approvals. If a local approval precludes or inhibits the ability of the applicant to obtain data required to be submitted under s. 289.21 (1) or in a feasibility report or environmental impact report, the applicant may petition the department to waive the applicability of the local approval to the applicant. If a petition is received, the department shall promptly schedule a hearing on the matter and notify the local government of the hearing. If the department determines at the hearing that the local approval is unreasonable, the department shall waive the applicability of the local approval to the applicant.

289.22(5) (5) Compliance required. Except as provided under sub. (4), no person may construct a solid waste disposal facility or a hazardous waste facility unless the person complies with the requirements of subs. (1m) and (3).

289.22 History History: 1995 a. 227 s. 545; 2015 a. 197 s. 51.

289.22 Cross-reference Cross-reference: See also ch. WFSB 3, Wis. adm. code.

289.23 289.23 Feasibility report required; distribution; public notice.

289.23(1) (1) Feasibility report required. Prior to constructing a solid waste disposal facility or a hazardous waste facility the person who seeks to construct the facility shall submit to the department a feasibility report.

289.23(2) (2) Local approval application prerequisite. No person subject to s. 289.33 may submit a feasibility report until the latest of the following periods:

289.23(2)(a) (a) At least 120 days after the person submits applications for all applicable local approvals specified as required by the municipality under s. 289.22 (1m).

289.23(2)(b) (b) At least 120 days after the receipt by the applicant of a statement by the municipality that there are no applicable local approvals.

289.23(2)(c) (c) At least 120 days after the deadline for the municipal response under s. 289.22 (1m) if the municipality does not respond within that time limit.

289.23(3) (3) Compliance required. No person may construct a solid waste disposal facility or a hazardous waste facility unless the person complies with the requirements of ss. 289.23 to 289.29.

289.23(4) (4) Distribution of feasibility report. At the same time an applicant submits a feasibility report to the department, the applicant shall submit a copy of that feasibility report to each participating municipality under s. 289.33 (6) (b).

289.23(5) (5) Notification of proposed facility. Immediately upon receipt of a feasibility report the department shall send a notice to the persons specified under s. 289.32 containing a brief description of the proposed facility and a statement that the applicant is required to send a copy of the feasibility report after it is determined to be complete by the department.

289.23 History History: 1995 a. 227 s. 547, 549, 551.

289.24 289.24 Feasibility report contents; completeness; distribution.

289.24(1) (1) Contents of feasibility reports; preparation. The department shall specify by rule the minimum contents of a feasibility report and no report is complete unless the specified information is provided by the applicant. In addition to the requirements specified under sub. (2), the rules may specify special requirements for a feasibility report relating to any hazardous waste facility. The department may require a feasibility report to be prepared by a registered professional engineer. A feasibility report shall include:

289.24(1)(a) (a) A general summary of the site characteristics as well as any specific data the department requires by rule regarding the site’s topography, soils, geology, groundwaters and surface waters and other features of the site and surrounding area.

289.24(1)(b) (b) Preliminary engineering design concepts including the proposed design capacity of the facility and an indication of the quantities and characteristics of the wastes to be treated, stored or disposed.

289.24(1)(c) (c) A description of how the proposed facility relates to any applicable county solid waste management plan approved under s. 289.10.

289.24(1)(d) (d) A description of the advisory process undertaken by the applicant prior to submittal of the feasibility report to provide information to the public and affected municipalities and to solicit public opinion on the proposed facility.

289.24(1)(e) (e) The proposed date of closure for the facility.

289.24(1)(f) (f) Sufficient information to make the determination of need for the facility under s. 289.28 unless the facility is exempt under s. 289.28 (2).

289.24(1)(g) (g) An analysis of alternatives to the land disposal of waste including waste reduction, reuse, recycling, composting and energy recovery.

289.24(1)(h) (h) A description of any waste reduction incentives and recycling services to be instituted or provided with the proposed facility.

289.24(2) (2) Certain hazardous waste facilities; additional requirements. A feasibility report for a hazardous waste disposal facility or surface impoundment, as defined in s. 291.37 (1) (d), shall include a list of all persons living within 0.5 mile of the facility and information reasonably ascertainable by the applicant on the potential for public exposure to hazardous waste or hazardous constituents through releases from the facility including, but not limited to, the following: