Chapter 289

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:

289.24(2)(a) (a) A description of any releases that may be expected to result from normal operations or accidents at the facility, including releases associated with transportation to or from the facility.

289.24(2)(b) (b) A description of the possible ways that humans may be exposed to hazardous waste or hazardous constituents as a result of a release from the facility, including the potential for groundwater or surface water contamination, air emissions or food chain contamination.

289.24(2)(c) (c) The potential extent and nature of human exposure to hazardous waste or hazardous constituents that may result from a release.

289.24(3) (3) Determination if a feasibility report is complete. Within 60 days after a feasibility report is submitted, the department either shall determine that the feasibility report is complete or shall notify the applicant in writing that the feasibility report is not complete and specify the information which is required to be submitted before the feasibility report is complete.

289.24(4) (4) Distribution. Immediately after the applicant receives notification of the department’s determination that the feasibility report is complete, the applicant shall distribute copies of the feasibility report to the persons specified under s. 289.32.

289.24 History History: 1995 a. 227 s. 550, 991; 1997 a. 35.

289.25 289.25 Environmental review.

289.25(1) (1) Preliminary determination if environmental impact statement is required. Immediately after the department determines that the feasibility report is complete, the department shall issue a preliminary determination on whether an environmental impact statement is required under s. 1.11 prior to the determination of feasibility. If the department determines after review of the feasibility report that a determination of feasibility cannot be made without an environmental impact statement or if the department intends to require an environmental impact report under s. 23.11 (5), the department shall notify the applicant in writing within the 60-day period of these decisions and shall commence the process required under s. 1.11 or 23.11 (5).

289.25(2) (2) Environmental impact statement process. If an environmental impact statement is required, the department shall conduct the hearing required under s. 1.11 (2) (d) in an appropriate place it designates in a county, city, village or town which would be substantially affected by the operation of the proposed facility. The hearing on the environmental impact statement is not a contested case. The department shall issue its determination of the adequacy of the environmental impact statement within 30 days after the close of the hearing. Except as provided under s. 293.43, the department shall complete any environmental impact statement process required under s. 1.11 before proceeding with the feasibility report review process under sub. (3) and ss. 289.26 and 289.27.

289.25(3) (3) Notification on feasibility report and preliminary environmental impact statement decisions. Immediately after the department issues a preliminary determination that an environmental impact statement is not required or, if it is required, immediately after the department issues the environmental impact statement, the department shall publish a class 1 notice under ch. 985 in the official newspaper designated under s. 985.04 or 985.05 or, if none exists, in a newspaper likely to give notice in the area of the proposed facility, and shall publish the notice on its Internet website. The notice shall include a statement that the feasibility report and the environmental impact statement process are complete. The notice shall invite the submission of written comments by any person within 30 days after the notice for a solid waste disposal facility or within 45 days after the notice for a hazardous waste facility is published. The notice shall describe the methods by which a hearing may be requested under ss. 289.26 (1) and 289.27 (1). The department shall distribute copies of the notice to the persons specified under s. 289.32. For the purpose of determining the date on which notice is published under this subsection, the date on which the department first publishes the notice on its Internet website shall be considered the date of notice.

289.25 History History: 1995 a. 227 ss. 552, 991; 2011 a. 167; 2017 a. 365 s. 112.

289.26 289.26 Informational hearing.

289.26(1) (1) Request for an informational hearing. Within 30 days after the notice under s. 289.25 (3) is published for a solid waste disposal facility, or within 45 days after the notice under s. 289.25 (3) is published for a hazardous waste facility, any county, city, village or town, the applicant or any 6 or more persons may file a written request for an informational hearing on the matter with the department. The request shall indicate the interests of the municipality or persons who file the request and state the reasons why the hearing is requested.

289.26(2) (2) Applicability. This section applies if no request for the treatment of the hearing as a contested case is granted and if:

289.26(2)(a) (a) An informational hearing is requested under sub. (1) within the 30-day or 45-day period; or

289.26(2)(b) (b) No hearing is requested under sub. (1) within the 30-day or 45-day period but the department determines that there is substantial public interest in holding a hearing.

289.26(3) (3) Nonapplicability; hearing conducted as a part of certain mining hearings. Notwithstanding sub. (2) this section does not apply if a hearing on the feasibility report is conducted as a part of a hearing under s. 293.43 and the time limits, notice and hearing provisions in that section supersede the time limits, notice and hearing provisions under s. 289.25 (2) and (3) and this section.

289.26(4) (4) Informational hearing. The department shall conduct the informational hearing within 60 days after the expiration of the 30-day or 45-day period under sub. (1). The department shall conduct the informational hearing in an appropriate place designated by the department in a county, city, village or town which would be substantially affected by the operation of the proposed facility.

289.26(5) (5) Issuance of final determination of feasibility. Except as provided under s. 289.29 (5), the department shall issue a final determination of feasibility within 60 days after the informational hearing under this section is adjourned.

289.26 History History: 1995 a. 227 ss. 553, 563, 991.

289.27 289.27 Contested case hearing.

289.27(1) (1) Request for treatment as a contested case. Within 30 days after the notice under s. 289.25 (3) is published for a solid waste disposal facility, or within 45 days after the notice under s. 289.25 (3) is published for a hazardous waste facility, any county, city, village or town, the applicant or any 6 or more persons may file a written request that the hearing under s. 289.26 (1) be treated as a contested case, as provided under s. 227.42. A county, city, village or town, the applicant or any 6 or more persons have a right to have the hearing treated as a contested case only if:

289.27(1)(a) (a) A substantial interest of the person requesting the treatment of the hearing as a contested case is injured in fact or threatened with injury by the department’s action or inaction on the matter;

289.27(1)(b) (b) The injury to the person requesting the treatment of the hearing as a contested case is different in kind or degree from injury to the general public caused by the department’s action or inaction on the matter; and

289.27(1)(c) (c) There is a dispute of material fact.

289.27(2) (2) Applicability. This section applies only if a person requests the treatment of the hearing as a contested case under sub. (1) within the 30-day or 45-day period and has a right to a hearing under that subsection. Any denial of a request for the treatment of the hearing as a contested case received within the 30-day or 45-day period under sub. (1) shall be in writing, shall state the reasons for denial and is an order reviewable under ch. 227. If the department does not enter an order granting or denying the request for the treatment of the hearing as a contested case within 20 days after the written request is filed, the request is deemed denied.

289.27(3) (3) Nonapplicability. Notwithstanding sub. (2), this section does not apply if a hearing on the feasibility report is conducted as a part of a hearing under s. 293.43 and the time limits, notice and hearing provisions under that section supersede the time limits, notice and hearing provisions under s. 289.25 (2) and (3) and this section.

289.27(4) (4) Time limits. Except as provided under s. 289.29 (5):

289.27(4)(a) (a) The division of hearings and appeals in the department of administration shall schedule the hearing to be held within 120 days after the expiration of the 30-day or 45-day period under sub. (1).

289.27(4)(b) (b) The final determination of feasibility shall be issued within 90 days after the hearing is adjourned.

289.27(5) (5) Determination of need; decision by hearing examiner. If a contested case hearing is conducted under this section, the secretary shall issue any decision concerning determination of need, notwithstanding s. 227.46 (2) to (4). The secretary shall direct the hearing examiner to certify the record of the contested case hearing to him or her without an intervening proposed decision. The secretary may assign responsibility for reviewing this record and making recommendations concerning the decision to any employee of the department.

289.27 History History: 1995 a. 227 s. 554, 565, 991.

289.28 289.28 Determination of need.

289.28(1) (1) Determination of need; issues considered. A feasibility report shall contain an evaluation to justify the need for the proposed facility unless the facility is exempt under sub. (2). The department shall consider the following issues in evaluating the need for the proposed facility:

289.28(1)(a) (a) An approximate service area for the proposed facility which takes into account the economics of waste collection, transportation and disposal.

289.28(1)(b) (b) The quantity of waste suitable for disposal at the proposed facility generated within the anticipated service area.

289.28(1)(c) (c) The design capacity of the following facilities located within the anticipated service area of the proposed facility:

289.28(1)(c)1. 1. Approved facilities, including the potential for expansion of those facilities on contiguous property already owned or controlled by the applicant.

289.28(1)(c)2. 2. Nonapproved facilities which are environmentally sound. It is presumed that a nonapproved facility is not environmentally sound unless evidence to the contrary is produced.

289.28(1)(c)3. 3. Other proposed facilities for which feasibility reports are submitted and determined to be complete by the department.

289.28(1)(c)4. 4. Facilities for the recycling of solid waste or for the recovery of resources from solid waste which are licensed by the department.

289.28(1)(c)5. 5. Proposed facilities for the recycling of solid waste or for the recovery of resources from solid waste which have plans of operation which are approved by the department.

289.28(1)(c)6. 6. Solid waste incinerators licensed by the department.

289.28(1)(c)7. 7. Proposed solid waste incinerators which have plans of operation which are approved by the department.

289.28(1)(d) (d) If the need for a proposed municipal facility cannot be established under pars. (a) to (c), the extent to which the proposed facility is needed to replace other facilities of that municipality at the time those facilities are projected to be closed in the plans of operation.

289.28(2) (2) Determination of need; exempt facilities. Subsections (1) and (3) and ss. 289.24 (1) (f) and 289.29 (1) (d) do not apply to:

289.28(2)(a) (a) Any facility which is part of a prospecting or mining operation with a permit under s. 293.45 or 293.49.

289.28(2)(b) (b) Any solid waste disposal facility designed for the disposal of waste generated by a pulp or paper mill.

289.28(3) (3) Issuance of determination of need. Except for a facility which is exempt under sub. (2), the department shall issue a determination of need for the proposed facility at the same time the final determination of feasibility is issued. If the department determines that there is insufficient need for the facility, the applicant may not construct or operate the facility.

289.28 History History: 1995 a. 227 ss. 556, 557, 560, 991.

289.28 Annotation Municipal replacement facilities are not exempt from the needs determination. 77 Atty. Gen. 81.

289.29 289.29 Determination of feasibility.

289.29(1) (1) Criteria for determination of feasibility; environmental impact.

289.29(1)(a) (a) A determination of feasibility shall be based only on this chapter and ch. 291 and rules promulgated under those chapters. A determination of feasibility for a facility for the disposal of metallic mining waste shall be based only on this chapter and ch. 291 and rules promulgated under those chapters with special consideration given to s. 289.05 (2) and rules promulgated under that section.

289.29(1)(b) (b) If there is a negotiated agreement or an arbitration award prior to issuance of the determination of feasibility, the final determination of feasibility may not include any item which is less stringent than a corresponding item in the negotiated agreement or arbitration award.

289.29(1)(c) (c) The department may receive into evidence at a hearing conducted under s. 289.26 or 289.27 any environmental impact assessment or environmental impact statement for the facility prepared under s. 1.11 and any environmental impact report prepared under s. 23.11 (5). The adequacy of the environmental impact assessment, environmental impact statement or environmental impact report is not subject to challenge at that hearing.

289.29(1)(d) (d) The department may not approve a feasibility report for a solid or hazardous waste disposal facility unless the design capacity of that facility does not exceed the expected waste to be disposed of at that facility within 15 years after that facility begins operation. The department may not approve a feasibility report for a solid or hazardous waste disposal facility unless the design capacity of that facility exceeds the expected waste to be disposed of at that facility within 10 years after that facility begins operation except that this condition does not apply to the expansion of an existing facility.

289.29(2) (2) Maximum number of facilities.