Chapter 289

289.33(9)(h) (h) Public hearings. The local committee may hold public hearings at any time concerning the agreement in any town, city or village where all or a portion of the facility is to be located.

289.33(9)(i) (i) Submission for approval. Within 2 weeks after approval of the written agreement by the applicant and the local committee, the local committee shall submit the negotiated agreement to the appropriate governing bodies for approval.

289.33(9)(j) (j) Appropriate governing bodies for approval. If the local committee includes members from a town, city or village where all or a portion of the facility is to be located, the appropriate governing bodies consist of the governing body of each town, city or village where all or a portion of the facility is to be located with members on the local committee. If the local committee does not include members from any town, city or village where all or a portion of the facility is to be located, the appropriate governing bodies consist of the governing body of each participating town, city or village.

289.33(9)(k) (k) Approval. If the local committee includes members from any town, city or village where all or a portion of the facility is to be located and if the negotiated agreement is approved by resolution by each of the appropriate governing bodies, the negotiated agreement is binding on all of the participating municipalities but if the negotiated agreement is not approved by any appropriate governing body, the negotiated agreement is void. If the local committee does not include members from any town, city or village where all or a portion of the facility is to be located and if the negotiated agreement is approved by resolution by all of the appropriate governing bodies, the agreement is binding on all of the participating municipalities but if the negotiated agreement is not approved by all of the appropriate governing bodies, the negotiated agreement is void.

289.33(9)(L) (L) Submission of agreement to board and department. The applicant shall submit a copy or notice of any negotiated agreement approved under par. (k) to the board and the department by mail within 10 days after the agreement is approved.

289.33(10) (10) Arbitration.

289.33(10)(a) (a) Joint petition for arbitration. If agreement is not reached on any items after a reasonable period of negotiation, the applicant and the local committee may submit a joint written petition to the board to initiate arbitration under this subsection.

289.33(10)(b) (b) Unilateral petition for arbitration. Either the applicant or the local committee may submit an individual written petition to the board to initiate arbitration under this subsection but not earlier than 120 days after the local committee is appointed under sub. (7) (a).

289.33(10)(c) (c) Decision concerning arbitration. Within 15 days after receipt of a petition to initiate arbitration, the board shall issue a decision concerning the petition and notify the applicant and the local committee of that decision.

289.33(10)(d) (d) Order to continue negotiation. The board may issue a decision ordering the applicant and the local committee to continue negotiating for at least 30 days after the date of the notice if, in the judgment of the board, arbitration can be avoided by the negotiation of any remaining issues. If the board issues a decision ordering the applicant and the local committee to continue negotiation, the petition to initiate arbitration may be resubmitted after the extended period of negotiation.

289.33(10)(e) (e) Decision to delay arbitration pending submittal of feasibility report. The board may issue a decision to delay the initiation of arbitration until the department notifies the board that it has received a feasibility report for the facility proposed by the applicant. The board may decide to delay the initiation of arbitration under this paragraph if the applicant has not made available information substantially equivalent to that in a feasibility report. The petition to initiate arbitration may be resubmitted after the feasibility report is submitted.

289.33(10)(f) (f) Order for final offers. The board may issue a decision ordering the applicant and the local committee to submit their respective final offers to the board within 90 days after the date of the notice.

289.33(10)(g) (g) Failure to submit final offer. If the local committee fails to submit a final offer within the time limit specified under par. (f), the applicant may continue to seek state approval of the facility, is not required to continue to negotiate or arbitrate under this section and the facility is not subject to any local approval, notwithstanding sub. (5). If the applicant fails to submit a final offer within the time limit specified under par. (f), the applicant may not construct or operate the facility.

289.33(10)(h) (h) Final offers. A final offer shall contain the final terms and conditions relating to the facility proposed by the applicant or the local committee and any information or arguments in support of the proposals. Additional supporting information may be submitted at any time.

289.33(10)(i) (i) Issues and items in final offer. A final offer may include only issues subject to arbitration under sub. (8). A final offer may include only items offered in negotiation except that a final offer may not include items settled by negotiation and approved under sub. (9) (k).

289.33(10)(j) (j) Continued negotiation; revised final offers. Negotiation may continue during the arbitration process. If an issue subject to negotiation is resolved to the satisfaction of both the applicant and the local committee and, if necessary, is approved by the department under sub. (9) (f), it shall be incorporated into a written agreement and the final offers may be amended as provided under par. (n).

289.33(10)(k) (k) Public hearings. The local committee may conduct public hearings on the proposed final offer prior to submitting the final offer to the governing bodies under par. (L).

289.33(10)(L) (L) Submission for approval. The final offers prepared by the local committee are required to be submitted for approval by resolution of the governing body of each participating municipality before the final offer is submitted to the board.

289.33(10)(m) (m) Public documents. The final offers are public documents and the board shall make copies available to the public.

289.33(10)(n) (n) Amendment of offer. After the final offers are submitted to the board, neither the applicant nor the local committee may amend its final offer, except with the written permission of the other party. Amendments proposed by the local committee are required to be approved by the participating municipality to which the amendment relates. If the governing body of any participating municipality fails to approve the final offer prepared by the local committee, the applicant may amend those portions of his or her final offer which pertain to that municipality without obtaining written permission from the local committee.

289.33(10)(o) (o) Public meeting. Within 30 days after the last day for submitting final offers, the board shall conduct a public meeting in a place reasonably close to the location of the facility to provide an opportunity for the applicant and the local committee to explain or present supporting arguments for their final offers. The board may conduct additional meetings with the applicant and the local committee as necessary to prepare its arbitration award. The board may administer oaths, issue summonses under s. 788.06 and direct the taking of depositions under s. 788.07.

289.33(10)(p) (p) Arbitration award. Within 90 days after the last day for submitting final offers under par. (f), the board may issue an arbitration award with the approval of a minimum of 5 board members. If the board fails to issue an arbitration award within this period, the governor shall issue an arbitration award within 120 days after the last day for submitting final offers under par. (f). The arbitration award shall adopt, without modification, the final offer of either the applicant or the local committee except that the arbitration award shall delete those items which are not subject to arbitration under sub. (8) or are not consistent with the legislative findings and intent under subs. (1) and (2). A copy of the arbitration award shall be served on the applicant and the local committee.

289.33(10)(q) (q) Award is binding; approval not required. If the applicant constructs and operates the facility, the arbitration award is binding on the applicant and the participating municipalities and does not require approval by the participating municipalities.

289.33(10)(r) (r) Applicability of arbitration statutes. Sections 788.09 to 788.15 apply to arbitration awards under this subsection.

289.33(10)(s) (s) Environmental impact. An arbitration award under this subsection is not a major state action under s. 1.11 (2).

289.33(11) (11) Successors in interest. Any provision in a negotiated agreement or arbitration award is enforceable by or against the successors in interest of any person directly affected by the award. A personal representative may recover damages for breach for which the decedent could have recovered.

289.33(12) (12) Applicability.

289.33(12)(a) (a) Solid waste disposal facilities.

289.33(12)(a)1. 1. This section applies to new or expanded solid waste disposal facilities for which an initial site report is submitted after March 15, 1982, or, if no initial site report is submitted, for which a feasibility report is submitted after March 15, 1982.

289.33(12)(a)2. 2. This section does not apply to modifications to a solid waste disposal facility which do not constitute an expansion of the facility or to a solid waste disposal facility which is exempt from the requirement of a feasibility report under this chapter or by rule promulgated by the department.

289.33(12)(b) (b) Hazardous waste facilities.

289.33(12)(b)1. 1. This section applies to all new or expanded hazardous waste facilities for which an initial site report is submitted after March 15, 1982, or, if no initial site report is submitted, for which a feasibility report is submitted after March 15, 1982.

289.33(12)(b)2. 2. Except as provided under subd. 1. and par. (c), only subs. (3) and (5) (a) and (b) apply to a hazardous waste facility which is in existence on May 7, 1982, which has a license, an interim license or a variance under s. 291.25 or 291.31 or the resource conservation and recovery act and which complies with all local approvals applicable to the facility on May 7, 1982.

289.33(12)(b)3. 3. Only subs. (3) and (5) (a) to (c) and (e) apply to a hazardous waste treatment or storage facility which accepts waste only from the licensee.

289.33(12)(c) (c) Existing solid waste disposal facilities or hazardous waste facilities.

289.33(12)(c)1. 1. This section applies to an existing solid waste disposal facility or hazardous waste facility which shall be treated as a new or expanded facility upon the adoption of a siting resolution by any affected municipality under sub. (6):

289.33(12)(c)1.a. a. At any time during the life of a solid waste disposal facility or a hazardous waste facility if the owner or operator and one or more affected municipalities agree to negotiate and arbitrate under this section.

289.33(12)(c)1.b. b. When a negotiated settlement or arbitration award under this section provides for the reopening of negotiations.

289.33(12)(c)1.c. c. At any time after the date specified in the feasibility report, if such a date has been specified under s. 289.24 (1), as the proposed date of closure of a solid or hazardous waste disposal facility and if the facility is not closed on or before that date.

289.33(12)(c)2. 2. Except as provided under subd. 1. and pars. (a), (b) and (d), only subs. (3) and (5) (a) and (b) apply to an existing solid waste disposal facility or a hazardous waste facility.

289.33(12)(d) (d) Nonapplicability to mining waste facilities. This section does not apply to any waste facility which is part of a prospecting or mining operation with a permit under s. 293.45 or 293.49.

289.33 History History: 1981 c. 374; 1983 a. 128; 1983 a. 282 ss. 6 to 32, 34; 1983 a. 416 s. 19; 1983 a. 532 s. 36; 1983 a. 538; 1985 a. 182 s. 57; 1987 a. 27, 204, 399; 1987 a. 403 s. 256; 1991 a. 39; 1995 a. 201; 1995 a. 227 s. 626; Stats. 1995 s. 289.33; 1997 a. 35, 241; 1999 a. 83, 150; 2001 a. 38; 2007 a. 63; 2009 a. 28; 2013 a. 14, 80; 2013 a. 173 s. 33.

289.33 Cross-reference Cross-reference: See also WFSB, Wis. adm. code.

289.33 Annotation Design features that affect the operation of a facility are subject to arbitration under s. 144.445 (8) (b) [now s. 289.33 (8) (b)]. Madison Landfills v. Libby Landfill, 188 Wis. 2d 613, 524 N.W.2d 833 (Ct. App. 1993).

289.33 Annotation Only local approvals that arbitrarily or discriminatorily obstruct the establishment of a waste facility may be set aside by an arbitration award under s. 144.445 [now s. 289.33]. Madison Landfills v. Libby Landfill, 188 Wis. 2d 613, 524 N.W.2d 833 (Ct. App. 1993).

289.33 Annotation Local approvals, as defined in sub. (3) (d), required to construct a low-hazard “clean fill” facility are preempted by s. 289.43 (8) and no longer required for exempt facilities, as settled by DeRosso, 200 Wis. 2d 642, which remains authoritative and unmodified. Because zoning requirements are expressly listed in sub. (3) (d) as local approvals, a “clean fill” facility is exempt from any zoning requirements. However, the definition of “local approval” in sub. (3) (d) indicates it is not limited to enumerated statutes and fairly included the village’s preconstruction storm water and erosion permitting requirements at issue in this case. Scenic Pit LLC v. Village of Richfield, 2017 WI App 49, 377 Wis. 2d 280, 900 N.W.2d 84, 15-2291.

289.33 Annotation Wisconsin’s landfill negotiation/arbitration statute. Ruud and Werner, WBB Nov. 1985.

289.33 Annotation Down in the dumps and wasted: The need determination in the Wisconsin landfill siting process. 1987 WLR 543.

289.34 289.34 Noncompliance with plans or orders.

289.34(1) (1) In this section, “applicant” means any natural person, partnership, association or body politic or corporate that seeks to construct a solid waste disposal facility or hazardous waste facility under ss. 289.21 to 289.32.

289.34(2) (2) The department may not issue a favorable determination of feasibility, approve a plan of operation or issue an operating license for a solid waste disposal facility or hazardous waste facility if the applicant or any person owning a 10 percent or greater legal or equitable interest in the applicant or the assets of the applicant either:

289.34(2)(a) (a) Is named in and subject to a plan approved, or an order issued, by the department regarding any solid waste facility or hazardous waste facility in this state and is not in compliance with the terms of the plan or order; or

289.34(2)(b) (b) Owns or previously owned a 10 percent or greater legal or equitable interest in a person or the assets of a person who is named in and subject to a plan approved, or an order issued, by the department regarding any solid waste facility or hazardous waste facility in this state and the person is not in compliance with the terms of the plan or order.

289.34(3) (3) Subsection (2) does not apply if the person named in and subject to the plan or order provides the department with proof of financial responsibility ensuring the availability of funds to comply with the plan or order using a method under s. 289.41.

289.34 History History: 1995 a. 227 s. 572.

289.35 289.35 Shoreland and floodplain zoning. Solid waste facilities are prohibited within areas under the jurisdiction of shoreland and floodplain zoning regulations adopted under ss. 59.692, 61.351, 61.353, 62.231, 62.233, 87.30, and 281.31, except that the department may issue permits authorizing facilities in such areas. If the department issues a permit under this section, the permit shall specify the location, height, and size of the solid waste facility authorized under the permit.

289.35 History History: 1981 c. 374 s. 148; 1983 a. 416 s. 19; 1995 a. 201; 1995 a. 227 s. 638; Stats. 1995 s. 289.35; 2013 a. 1, 80.

289.36 289.36 Acquisition of property by condemnation.

289.36(1) (1) Definition. In this section, “property” includes any interest in land including an estate, easement, covenant or lien, any restriction or limitation on the use of land other than those imposed by exercise of the police power, any building, structure, fixture or improvement and any personal property directly connected with land.

289.36(2) (2) Property may be condemned. Notwithstanding s. 32.03, property intended for use as a solid or hazardous waste facility may be condemned if all of the following conditions are met:

289.36(2)(a) (a) The entity proposing to acquire the property for use as a solid or hazardous waste facility has authority to condemn property for this purpose.

289.36(2)(b) (b) The property is determined to be feasible for use as a solid or hazardous waste facility by the department if that determination is required under s. 289.29.

289.36(2)(c) (c) The property is acquired by purchase, lease, gift or condemnation by a municipality, public board or commission or any other entity, except for the state, so as to bring the property within the limitations on the exercise of the general power of condemnation under s. 32.03 within:

289.36(2)(c)1. 1. Five years prior to the determination of feasibility if a determination of feasibility is required for the facility under s. 289.29.

289.36(2)(c)2. 2. Five years prior to the service of a jurisdictional offer under s. 32.06 (3) if a determination of feasibility is not required for the facility under s. 289.29.

289.36 History History: 1981 c. 374; 1995 a. 227 s. 628; Stats. 1995 s. 289.36.

subch. IV of ch. 289 SUBCHAPTER IV

LONG-TERM CARE; FINANCIAL RESPONSIBILITY; OPERATION; WAIVERS; EXEMPTIONS; CLOSURE

289.41 289.41 Financial responsibility.

289.41(1) (1) Definitions. As used in this section:

289.41(1)(am) (am) “Capital expenditures” means any increase in the fixed assets made during a company’s fiscal year.

289.41(1)(b) (b) “Company” means one of the following:

289.41(1)(b)1. 1. Any business operated for profit and any public utility which is applying for or holds a license for the operation of a solid or hazardous waste disposal facility under s. 289.31 or 291.25 directly or through a subsidiary, affiliate, contractor or other entity if the business or public utility guarantees compliance with any closure and long-term care responsibilities of the subsidiary, affiliate, contractor or other entity.

289.41(1)(b)2. 2. Any business operated for profit and any public utility that is required to perform corrective action under s. 291.37.

289.41(1)(c) (c) “Net worth” means the amount of a company’s total tangible assets less the company’s total liabilities.

289.41(1)(d) (d) “Public utility” means a public utility as defined in s. 196.01 (5) or an electric cooperative organized under ch. 185.

289.41(1)(e) (e) “Sinking fund” means principal debt payments made during a company’s fiscal year.

289.41(1)(f) (f) “Tangible assets” means total assets less intangible assets such as goodwill, patents and trademarks.

289.41(1m) (1m) Long-term care and financial responsibility; termination.

289.41(1m)(b) (b) Proof of financial responsibility.

289.41(1m)(b)1. 1. Except as provided in subd. 2. or 2m., the owner of an approved facility shall maintain proof of financial responsibility as provided in this section during the operation of the approved facility and for 40 years after the closing of the approved facility unless the obligation is extended under par. (f).

289.41(1m)(b)2. 2. The owner of an approved facility which ceased to accept solid waste and permanently terminated disposal operations before August 15, 1991, shall maintain proof of financial responsibility as provided in this section for the period specified in the approved plan of operation.

289.41(1m)(b)2m. 2m. The owner of an approved mining facility that commences operation after June 14, 1996, shall maintain proof of financial responsibility as provided in this section during the operation of the approved mining facility and after the closing of the approved mining facility. The owner’s obligation to maintain proof of financial responsibility terminates only as provided in par. (g).

289.41(1m)(b)3. 3. Except as provided in subd. 4., the owner of a nonapproved facility that receives or has received household waste shall maintain proof of financial responsibility as provided in this section during the operation of the nonapproved facility and for 40 years after the closing of the nonapproved facility unless the obligation is extended under par. (f).

289.41(1m)(b)4. 4. The owner of a nonapproved facility that ceases to accept solid waste and permanently terminates disposal operations before October 9, 1993, is not required to maintain proof of financial responsibility.

289.41(1m)(c) (c) Long-term care responsibility for approved facilities. Notwithstanding s. 144.441 (2) (c) 1., 1989 stats., the owner’s responsibility for the long-term care of an approved facility does not terminate, except that if another person acquires the rights of ownership and is issued under s. 289.46 (1) a new operating license for the approved facility, the owner’s responsibility is transferred to that other person upon the issuance of the new operating license.

289.41(1m)(f) (f) Extension of obligation to provide proof of financial responsibility. If the department determines that it is necessary to protect human health or the environment, the department may require the owner of a solid or hazardous waste disposal facility to provide proof of financial responsibility for the long-term care of the facility for more than 40 years. The department shall notify the owner of the extended obligation to provide proof of financial responsibility before the expiration of the original 40-year period. The department shall promulgate rules establishing the procedure used to determine if it is necessary to protect human health or the environment.

289.41(1m)(g) (g) Proof of financial responsibility for approved mining facility; termination.

289.41(1m)(g)1. 1. The owner of an approved mining facility may apply, at any time at least 40 years after the closing of the facility, to the department for termination of the owner’s obligation to maintain proof of financial responsibility for long-term care of the facility. Upon receipt of an application under this subdivision, 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 facility, shall publish the notice on its Internet website, and shall provide the notice, upon request, to interested members of the public. The department’s notice to interested members of the public may be given through an electronic notification system established by the department. The notice shall include a statement that the owner has applied to terminate the owner’s obligation to maintain proof of financial responsibility for the long-term care of the facility, the name and address of the owner, and information indicating where the full text of the application may be viewed on the department’s Internet website. The notice shall invite the submission of written comments by any person within 30 days after the notice is published. The notice shall describe the methods by which a hearing may be requested under subds. 2. and 3. The department shall distribute a copy of the notice to the owner of the facility. In any hearing on the matter, the burden is on the owner to prove by a preponderance of the evidence that continuation of the requirement to provide proof of financial responsibility for long-term care is not necessary for adequate protection of human health or the environment. Within 120 days after the publication of the notice or within 60 days after any hearing is adjourned, whichever is later, the department shall determine whether proof of financial responsibility for long-term care of the facility continues to be required. For the purpose of determining the date on which notice is provided under this subdivision, the date on which the department first publishes the notice on its Internet website shall be considered the date of notice. A determination that proof of financial responsibility for long-term care is no longer required terminates the owner’s obligation to maintain proof of financial responsibility for long-term care. The owner may not submit another application under this subdivision until at least 5 years after the previous application has been rejected by the department.