Chapter 289

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.

289.30(9) (9) Failure to comply with plan of operation. Failure to operate in accordance with the approved plan subjects the operator to enforcement under s. 289.97 or 291.95. If the department establishes that any failure to operate in accordance with the approved plan for a solid waste disposal facility is grievous and continuous, the operator is subject to suspension, revocation or denial of the operating license under s. 289.31. If the operator fails to operate a hazardous waste facility in accordance with the approved plan, the department may suspend, revoke or deny the operating license under s. 289.31.

289.30(10) (10) Feasibility report not subject to review. In any judicial review under ss. 227.52 to 227.58 of the department’s decision to approve or disapprove a plan of operation, no element of the feasibility report, as approved by the department, is subject to judicial review.

289.30(11) (11) No right to hearing. There is no statutory right to a hearing before the department concerning the plan of operation but the department may grant a hearing on the plan of operation under s. 289.07 (1).

289.30 History History: 1995 a. 227 s. 566, 568.

289.31 289.31 Operating license.

289.31(1) (1) License requirement. No person may operate a solid waste facility or hazardous waste facility unless the person obtains an operating license from the department. The department shall issue an operating license with a duration of one year or more except that the department may issue an initial license with a duration of less than one year. The department may deny, suspend or revoke the operating license of a solid waste facility for failure to pay fees required under this chapter or for grievous and continuous failure to comply with the approved plan of operation under this chapter or, if no plan of operation exists with regard to the facility, for grievous and continuous failure to comply with the standards adopted under s. 289.05 (1) and (2). The department may deny, suspend or revoke the operating license of a hazardous waste facility for any reason specified under s. 291.87 (1m).

289.31(2) (2) Environmental impact statement not required. A determination under this section does not constitute a major state action under s. 1.11 (2).

289.31(3) (3) Issuance of initial license. The initial operating license for a solid waste disposal facility or a hazardous waste facility shall not be issued unless the facility has been constructed in substantial compliance with the operating plan approved under s. 289.30. The department may require that compliance be certified in writing by a registered professional engineer. The department may by rule require, as a condition precedent to the issuance of the operating license for a solid waste disposal facility, that the applicant submit evidence that a notation of the existence of the facility has been recorded in the office of the register of deeds in each county in which a portion of the facility is located.

289.31(4) (4) Notice; hazardous waste facilities.

289.31(4)(am) (am) Before issuing the initial operating license for a hazardous waste facility, the department shall give notice of its intent to issue the license by all of the following means:

289.31(4)(am)1. 1. Publishing a class 1 notice, under ch. 985, in a newspaper likely to give notice in the area where the facility is located.

289.31(4)(am)2. 2. Broadcasting a notice by radio announcement in the area where the facility is located.

289.31(4)(am)3. 3. Providing written notice to each affected municipality.

289.31(4)(am)4. 4. Publication of the notice on the department’s Internet website.

289.31(4)(am)5. 5. Providing notice to interested persons upon request. The notice may be given through an electronic notification system established by the department.

289.31(4)(bm) (bm) The notice provided under par. (am) 1., 3., 4., and 5. shall include all of the following:

289.31(4)(bm)1. 1. The name and address of the applicant.

289.31(4)(bm)2. 2. A summary that contains a brief, precise, easily understandable, plain language description of the subject matter of the license.

289.31(4)(bm)3. 3. Information indicating where more information about the subject matter of the license may be viewed on the department’s Internet website.

289.31(4)(cm) (cm) For the purpose of determining the date on which public notice is provided under this subsection, the date on which the department first publishes the notice on its Internet website shall be considered the date of public notice.

289.31(5) (5) Feasibility report and plan of operation not subject to review. In any judicial review under ss. 227.52 to 227.58 of the department’s decision to issue or deny an operating license, no element of either the feasibility report or the plan of operation, as approved by the department, is subject to judicial review.

289.31(6) (6) No right to hearing. There is no statutory right to a hearing before the department concerning the license but the department may grant a hearing on the license under s. 289.07 (1).

289.31(7) (7) Monitoring requirements.

289.31(7)(a) (a) In this subsection, “monitoring” means activities necessary to determine whether contaminants are present in groundwater, surface water, soil or air in concentrations that require investigation or remedial action. “Monitoring” does not include investigations to determine the extent of contamination, to collect information necessary to select or design remedial action, or to monitor the performance of remedial action.

289.31(7)(b) (b) Upon the renewal of an operating license for a nonapproved facility, the department may require monitoring at the facility as a condition of the license.

289.31(7)(c) (c) The owner or operator of a nonapproved facility is responsible for conducting any monitoring required under par. (b).

289.31(7)(d) (d) The department may require by special order the monitoring of a closed solid or hazardous waste disposal site or facility which was either a nonapproved facility or a waste site, as defined under s. 292.01 (21), when it was in operation.

289.31(7)(e) (e) If the owner or operator of a site or facility subject to an order under par. (d) is not a municipality, the owner or operator is responsible for the cost of conducting any monitoring ordered under par. (d).

289.31(7)(f) (f) If the owner or operator of a site or facility subject to an order under par. (d) is a municipality, the municipality is responsible for conducting any monitoring ordered under par. (d). The department shall, from the environmental fund appropriation under s. 20.370 (4) (dv), reimburse the municipality for the costs of monitoring that exceed an amount equal to $3 per person residing in the municipality for each site or facility subject to an order under par. (d), except that the maximum reimbursement is $100,000 for each site or facility. The department shall exclude any monitoring costs paid under the municipality’s liability insurance coverage in calculating the municipal cost of monitoring a site or facility.

289.31(7)(g) (g) The department shall promulgate rules for determining costs eligible for reimbursement under par. (f).

289.31(8) (8) Closure agreement. Any person operating a solid or hazardous waste facility which is a nonapproved facility may enter into a written closure agreement at any time with the department to close the facility on or before July 1, 1999. The department shall incorporate any closure agreement into the operating license. The operating license shall terminate and is not renewable if the operator fails to comply with the closure agreement. Upon termination of an operating license under this subsection as the result of failure to comply with the closure agreement, the department shall collect additional surcharges and base fees as provided under s. 289.67 (3) and (4) and enforce the closure under ss. 299.95 and 299.97.

289.31(9) (9) Daily cover. Within 12 months after receiving a request from a person operating a foundry or a scrap dealer in this state, the department shall modify the operating license issued under sub. (1) to a person operating a municipal waste landfill to require the operator to use foundry sand from the foundry or shredder fluff from the scrap dealer’s operation as daily cover at part or all of the municipal waste landfill for a period specified in the request, if all of the conditions in s. 289.30 (5) are met.

289.31(10) (10) Voluntary party certificate of completion. When the department issues a certificate of completion under s. 292.15 (2) (a) 3., (ae) 3., (af) 3., or (ag) 2. for all or a portion of a solid waste facility with an operating license under this section, the operating license for the solid waste facility or the portion of the solid waste facility covered by the certificate of completion is terminated.

289.31 History History: 1995 a. 227 s. 569, 570; 2011 a. 103, 167; 2013 a. 333; 2015 a. 204; 2017 a. 59; 2017 a. 365 s. 112.

289.31 Annotation Corporate officers responsible for the overall operation of a facility are personally liable for violations. State v. Rollfink, 162 Wis. 2d 121, 469 N.W.2d 398 (1991).

289.32 289.32 Distribution of documents. One copy of the notice or documents required to be distributed under ss. 289.21 to 289.31 shall be mailed to:

289.32(1) (1) The clerk of each affected municipality.

289.32(2) (2) The main public library in each affected municipality.

289.32(3) (3) The applicant if the notice or document is not required to be distributed by the applicant.

289.32 History History: 1995 a. 227 s. 571.

289.33 289.33 Solid and hazardous waste facilities; negotiation and arbitration.

289.33(1) (1) Legislative findings.

289.33(1)(a) (a) The legislature finds that the creation of solid and hazardous waste is an unavoidable result of the needs and demands of a modern society.

289.33(1)(b) (b) The legislature further finds that solid and hazardous waste is generated throughout the state as a by-product of the materials used and consumed by every individual, business, enterprise and governmental unit in the state.

289.33(1)(c) (c) The legislature further finds that the proper management of solid and hazardous waste is necessary to prevent adverse effects on the environment and to protect public health and safety.

289.33(1)(d) (d) The legislature further finds that the availability of suitable facilities for solid waste disposal and the treatment, storage and disposal of hazardous waste is necessary to preserve the economic strength of this state and to fulfill the diverse needs of its citizens.

289.33(1)(e) (e) The legislature further finds that whenever a site is proposed for the solid waste disposal or the treatment, storage or disposal of hazardous waste, the nearby residents and the affected municipalities may have a variety of legitimate concerns about the location, design, construction, operation, closing and long-term care of facilities to be located at the site, and that these facilities must be established with consideration for the concerns of nearby residents and the affected municipalities.

289.33(1)(f) (f) The legislature further finds that local authorities have the responsibility for promoting public health, safety, convenience and general welfare, encouraging planned and orderly land use development, recognizing the needs of industry and business, including solid waste disposal and the treatment, storage and disposal of hazardous waste and that the reasonable decisions of local authorities should be considered in the siting of solid waste disposal facilities and hazardous waste facilities.

289.33(1)(g) (g) The legislature further finds that the procedures for the siting of new or expanded solid waste disposal facilities and hazardous waste facilities under s. 144.44, 1979 stats., and s. 144.64, 1979 stats., are not adequate to resolve many of the conflicts which arise during the process of establishing such facilities.

289.33(2) (2) Legislative intent. It is the intent of the legislature to create and maintain an effective and comprehensive policy of negotiation and arbitration between the applicant for a license to establish either a solid waste disposal facility or a hazardous waste treatment, storage or disposal facility and a committee representing the affected municipalities to assure that:

289.33(2)(a) (a) Arbitrary or discriminatory policies and actions of local governments which obstruct the establishment of solid waste disposal facilities and hazardous waste facilities can be set aside.

289.33(2)(b) (b) The legitimate concerns of nearby residents and affected municipalities can be expressed in a public forum, negotiated and, if need be, arbitrated with the applicant in a fair manner and reduced to a written document that is legally binding.

289.33(2)(c) (c) An adequate mechanism exists under state law to assure the establishment of environmentally sound and economically viable solid waste disposal facilities and hazardous waste facilities.

289.33(3) (3) Definitions. In this section:

289.33(3)(a) (a) “Applicant” means a person applying for a license for or the owner or operator of a facility.