Chapter 289

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.

289.29(2)(a) (a) Except as provided in par. (b), the department may not issue a favorable determination of feasibility for a solid waste disposal facility in a 3rd class city if 2 or more approved facilities that are solid waste disposal facilities are in operation within the city in which the solid waste disposal facility is proposed to be located.

289.29(2)(b) (b) The prohibition in par. (a) does not apply to an expansion of or addition to an existing approved facility that is a solid waste disposal facility by the owner or operator of the existing approved facility on property that is contiguous to the property on which the existing approved facility is located and that is owned or under option to lease or purchase by the owner or operator of the existing approved facility.

289.29(3) (3) Contents of final determination of feasibility. The department shall issue a final determination of feasibility which shall state the findings of fact and conclusions of law upon which it is based. The department may condition the issuance of the final determination of feasibility upon special design, operational or other requirements to be submitted with the plan of operation under s. 289.30. The final determination of feasibility shall specify the design capacity of the proposed facility. The issuance of a favorable final determination of feasibility constitutes approval of the facility for the purpose stated in the application but does not guarantee plan approval under s. 289.30 or licensure under s. 289.31.

289.29(4) (4) Issuance of final determination of feasibility. Except as provided under sub. (5), if no hearing is conducted under s. 289.26 or 289.27, the department shall issue the final determination of feasibility within 60 days after the 30-day or 45-day period under s. 289.27 (1) has expired.

289.29(5) (5) Issuance of final determination of feasibility in certain situations involving utilities and mining. If a determination of feasibility is identified in the listing specified in s. 196.491 (3) (a) 3. a., the issuance of a final determination of feasibility is subject to the time limit under s. 196.491 (3) (a) 3. b. If a determination of feasibility is required under s. 293.43, the issuance of a final determination of feasibility is subject to the time limits under s. 293.45 (2) or 293.49, whichever is applicable.

289.29 History History: 1995 a. 227 ss. 555, 558, 559, 561, 991; 1997 a. 204.

289.30 289.30 Plan of operation.

289.30(1) (1) Plan of operation required. Prior to constructing a solid waste disposal facility or a hazardous waste facility, the applicant shall submit to the department a plan of operation for the facility.

289.30(2) (2) Feasibility report prerequisite. No person may submit a plan of operation for a facility prior to the time the person submits a feasibility report for that facility. A person may submit a plan of operation with the feasibility report or at any time after the feasibility report is submitted. If a person submits the plan of operation prior to the final determination of feasibility, the plan of operation is not subject to review at any hearing conducted under s. 289.26 or 289.27 and is not subject to judicial review under ss. 227.52 to 227.58 in the review of any decision under s. 289.26 or 289.27.

289.30(3) (3) Feasibility report; certain facilities. The department may require the applicant for a hazardous waste treatment or storage facility to submit the feasibility report and the plan of operation at the same time and, notwithstanding subs. (2), (10) and (11), both the feasibility report and the plan of operation shall be considered at a public hearing conducted under ss. 289.26 and 289.27, and both are subject to judicial review in a single proceeding.

289.30(4) (4) Preparation; contents. The proposed plan of operation shall be prepared by a registered professional engineer and shall include at a minimum a description of the manner of solid waste disposal or hazardous waste treatment, storage or disposal and a statement setting forth the proposed development, daily operation, closing and long-term care of the facility. The proposed plan of operation shall specify the method by which the owner or operator will maintain proof of financial responsibility under s. 289.41. The department shall specify by rule the minimum contents of a plan of operation submitted for approval under this section and no plan is complete unless the information is supplied. The rules may specify special standards for plans of operation relating to hazardous waste facilities. Within 30 days after a plan of operation is submitted or, if the plan of operation is submitted with the feasibility report under sub. (2), within 30 days after the department issues notice that the feasibility report is complete, the department shall notify the applicant in writing if the plan is not complete, specifying the information which is required to be submitted before the report is complete. If no notice is given, the report is deemed complete on the date of its submission.

289.30(5) (5) Daily cover. The department shall include in an approved plan of operation for a municipal waste landfill a requirement that the operator use foundry sand or shredder fluff for daily cover at part or all of the municipal waste landfill for the period specified in a request from a person operating a foundry or a scrap dealer in this state if the department receives the request prior to approving the plan of operation under sub. (6) and if all of the following conditions are met:

289.30(5)(a) (a) The foundry operator or scrap dealer agrees to transport the foundry sand or shredder fluff to the landfill either daily or on another schedule acceptable to the municipal waste landfill operator.

289.30(5)(b) (b) The department approves the use of the foundry sand or shredder fluff for daily cover at the municipal waste landfill.

289.30(5)(c) (c) The municipal waste landfill operator is not contractually bound to obtain daily cover from another source.

289.30(5)(d) (d) The amount of daily cover to be provided by the requesting foundry operator or scrap dealer does not exceed the amount of daily cover required under the plan of operation for the municipal waste landfill less any daily cover provided by another foundry operator or scrap dealer.

289.30(6) (6) Approval; disapproval. The department may not approve or disapprove a plan of operation until a favorable determination of feasibility has been issued for the facility. Upon the submission of a complete plan of operation, the department shall either approve or disapprove the plan in writing within 90 days or within 60 days after a favorable determination of feasibility is issued for the facility, whichever is later. The determination of the department shall be based upon compliance with sub. (5) and the standards established under s. 289.05 (1) and (2) or, in the case of hazardous waste facilities, with the rules and standards established under ss. 291.05 (1) to (4) and (6) and 291.07 to 291.11. An approval may be conditioned upon any requirements necessary to comply with the standards. Any approval may be modified by the department upon application of the licensee if newly discovered information indicates that the modification would not inhibit compliance with the standards adopted under s. 289.05 (1) and (2) or, if applicable, ss. 291.05 (1) to (4) and (6) and 291.07 to 291.11. No plan of operation for a solid or hazardous waste facility may be approved unless the applicant submits technical and financial information required under ss. 289.05 (3) and 289.41.

289.30(7) (7) No environmental impact statement required. A determination under this section does not constitute a major state action under s. 1.11 (2).

289.30(8) (8) Approval.

289.30(8)(a) (a) Approval under sub. (6) entitles the applicant to construct the facility in accordance with the approved plan for not less than the design capacity specified in the determination of feasibility, unless the department establishes by a clear preponderance of the credible evidence that:

289.30(8)(a)1. 1. The facility is not constructed in accordance with the approved plan;

289.30(8)(a)2. 2. The facility poses a substantial hazard to public health or welfare; or

289.30(8)(a)3. 3. In-field conditions, not disclosed in the feasibility report or plan of operation, necessitate modifications of the plan to comply with standards in effect at the time of plan approval under s. 289.05 (1) and (2) or, if applicable, ss. 291.05 (1) to (4) and (6) and 291.07 to 291.11.

289.30(8)(b) (b) Paragraph (a) does not limit the department’s authority to modify a plan of operation to ensure compliance with a federal statute or regulation applicable to the solid waste disposal facility or hazardous waste facility.