Chapter 289

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.

289.33(3)(b) (b) “Board” means the waste facility siting board.

289.33(3)(c) (c) “Facility” means a solid waste disposal facility or a hazardous waste facility.

289.33(3)(d) (d) “Local approval” includes any requirement for a permit, license, authorization, approval, variance or exception or any restriction, condition of approval or other restriction, regulation, requirement or prohibition imposed by a charter ordinance, general ordinance, zoning ordinance, resolution or regulation by a town, city, village, county or special purpose district, including without limitation because of enumeration any ordinance, resolution or regulation adopted under s. 91.73, 2007 stats., s. 59.03 (2), 59.11 (5), 59.42 (1), 59.48, 59.51 (1) and (2), 59.52 (2), (5), (6), (7), (8), (9), (11), (12), (13), (15), (16), (17), (18), (19), (20), (21), (22), (23), (24), (25), (26) and (27), 59.53 (1), (2), (3), (4), (5), (7), (8), (9), (11), (12), (13), (14), (15), (19), (20) and (23), 59.535 (2), (3) and (4), 59.54 (1), (2), (3), (4), (4m), (5), (6), (7), (8), (10), (11), (12), (16), (17), (18), (19), (20), (21), (22), (23), (24), (25) and (26), 59.55 (3), (4), (5) and (6), 59.56 (1), (2), (4), (5), (6), (7), (9), (10), (11), (12), (12m), (13) and (16), 59.57 (1), 59.58 (1) and (5), 59.62, 59.69, 59.692, 59.693, 59.696, 59.697, 59.698, 59.70 (1), (2), (3), (5), (7), (8), (9), (10), (11), (21), (22) and (23), 59.79 (1), (2), (3), (5), (7), (8), and (10), 59.792 (2) and (3), 59.80, 59.82, 60.10, 60.22, 60.23, 60.54, 60.77, 61.34, 61.35, 61.351, 61.353, 61.354, 62.11, 62.23, 62.231, 62.233, 62.234, 66.0101, 66.0415, 87.30, 196.58, 200.11 (8), 236.45, 281.43 or 349.16, subch. VIII of ch. 60, or subch. III of ch. 91.

289.33(3)(e) (e) “Local committee” means the committee appointed under sub. (7).

289.33(3)(f) (f) “Participating municipality” means an affected municipality which adopts a siting resolution and appoints members to the local committee.

289.33(3)(fm) (fm) “Preexisting local approval” means a local approval in effect at least 15 months prior to the submission to the department of either a feasibility report under s. 289.23 or an initial site report, whichever occurs first.

289.33(3)(g) (g) “Siting resolution” means the resolution adopted by an affected municipality under sub. (6) (a).

289.33(4) (4) Rules. The board may promulgate rules necessary for the implementation of this section.

289.33(5) (5) Applicability of local approvals.

289.33(5)(a) (a) The establishment of facilities is a matter of statewide concern.

289.33(5)(b) (b) An existing facility is not subject to any local approval except those local approvals made applicable to the facility under pars. (c) to (g).

289.33(5)(c) (c) Except as provided under par. (d), a new or expanded facility is subject to preexisting local approvals.

289.33(5)(d) (d) A new or expanded facility is not subject to any preexisting local approvals which are specified as inapplicable in a negotiation agreement approved under sub. (9) or an arbitration award issued under sub. (10).

289.33(5)(e) (e) Except as provided under par. (f), a new or expanded facility is not subject to any local approvals which are not preexisting local approvals.

289.33(5)(f) (f) A new or expanded facility is subject to local approvals which are not preexisting local approvals if they are specified as applicable in a negotiation agreement approved under sub. (9).

289.33(5)(g) (g) This subsection applies to a new or expanded facility owned or operated by a county in the same manner it applies to all other new or expanded facilities.

289.33(6) (6) Siting resolution.

289.33(6)(a) (a) Municipal participation. An affected municipality may participate in the negotiation and arbitration process under this section if the governing body adopts a siting resolution and appoints members to the local committee within 60 days after the municipality receives the written request from the applicant under s. 289.22 (1m) and if the municipality sends a copy of that resolution and the names of those members to the board within 7 days after the municipality adopts the siting resolution and appoints members to the local committee. The siting resolution shall state the affected municipality’s intent to negotiate and, if necessary, arbitrate with the applicant concerning the proposed facility. An affected municipality which does not adopt a siting resolution within 60 days after receipt of notice from the applicant may not appoint members to the local committee.

289.33(6)(b) (b) Notification of participation. Within 5 days after the board receives copies of resolutions and names of members appointed to the local committee from all affected municipalities or within 72 days after all affected municipalities receive the written request under s. 289.22 (1m), the board shall submit a notification of participation by certified mail to the applicant and each participating municipality identifying the participating municipalities and the members appointed to the local committee and informing the applicant and participating municipalities that negotiations may commence or, if no affected municipality takes the actions required to participate in the negotiation and arbitration process under par. (a), the board shall notify the applicant of this fact by certified mail within that 72-day period.

289.33(6)(c) (c) Revised notification of participation. If the board issues a notice under par. (b) and subsequently it is necessary for the applicant to submit a written request under s. 289.22 (1m) to an additional affected municipality because of an error or changes in plans, the board may issue an order delaying negotiations until that affected municipality has an opportunity to participate in the negotiation and arbitration process by taking action under par. (a). Within 5 days after the board receives a copy of the resolution and the names of members appointed to the local committee by that affected municipality or within 72 days after that affected municipality receives the written request from the applicant under s. 289.22 (1m), the board shall submit a revised notification of participation by certified mail to the applicant and each participating municipality stating the participating municipalities and members appointed to the local committee and informing the applicant and participating municipalities that negotiations may recommence or if the additional affected municipality does not take the actions required to participate in the negotiation and arbitration process under par. (a), the board shall notify the applicant and other participating municipalities of this fact by certified mail and informing them that negotiations may recommence.

289.33(6)(d) (d) Rescission. A siting resolution may be rescinded at any time by a resolution of the governing body of the municipality which adopted it. When a siting resolution is rescinded, individuals appointed by the governing body of the municipality to serve on the local committee are removed from membership on the local committee.

289.33(6)(e) (e) Prohibition on participation by municipality which is also applicant. An affected municipality which is also the applicant or which contracts with the applicant to construct or operate a facility may not adopt a siting resolution.

289.33(6)(f) (f) Failure to participate. If no affected municipality takes the actions required to participate in the negotiation and arbitration process under par. (a), the applicant may continue to seek state approval of the facility, is not required to negotiate or arbitrate under this section and the facility is not subject to any local approval, notwithstanding sub. (5).

289.33(6)(g) (g) Extension for filing. If the governing body of an affected municipality adopts a siting resolution under par. (a) or (b), and if the affected municipality does not send a copy of the siting resolution to the applicant and the board within 7 days, the board may grant an extension of time to allow the affected municipality to send a copy of the siting resolution to the applicant and the board, if the board determines that:

289.33(6)(g)1. 1. The municipality failed to send the siting resolution through mistake, inadvertence or excusable neglect; and

289.33(6)(g)2. 2. The granting of an extension will not create a significant hardship for other parties to the negotiation and arbitration process.

289.33(7) (7) Local committee.

289.33(7)(a) (a) Appointment of members. Members of the local committee shall be appointed by the governing body of each affected municipality passing a siting resolution, as follows:

289.33(7)(a)1. 1. A town, city or village in which all or part of a facility is proposed to be located shall appoint 4 members or the number of members appointed under subds. 1m. and 2. plus 2, whichever is greater, no more than 2 of whom are elected officials or municipal employees.

289.33(7)(a)1m. 1m. A county in which all or part of a facility is proposed to be located shall appoint 2 members.

289.33(7)(a)2. 2. Any affected municipality, other than those specified under subd. 1. or 1m., shall appoint one member.

289.33(7)(b) (b) Disclosure of private interests. Each member of a local committee shall file a statement with the board within 15 days after the person is appointed to the local committee specifying the economic interests of the member and his or her immediate family members that would be affected by the proposed facility and its development.

289.33(7)(c) (c) Failure to disclose private interests. If a person fails to file a statement of economic interest as required under par. (b), he or she may not serve on the local committee and the position to which he or she was appointed is vacant.

289.33(7)(d) (d) Removal; vacancies. A participating municipality may remove and replace at will the members it appoints to the local committee. Vacancies on the local committee shall be filled in the same manner as initial appointments.

289.33(7)(e) (e) Chairperson. The local committee shall elect one of its members as chairperson.

289.33(7)(f) (f) Quorum. A majority of the membership of the local committee constitutes a quorum to do business and a majority of that quorum may act in any matter before the local committee. Each member of the local committee has one vote in any matter before the committee and no member may vote by proxy.

289.33(7)(g) (g) Open meetings. Meetings of the local committee are subject to subch. V of ch. 19.

289.33(7n) (7n) Additional municipal parties.

289.33(7n)(a) (a) Agreement to add. Upon the written agreement of all parties to a negotiation and arbitration proceeding commenced under this section, a municipality which does not qualify as an affected municipality may be added as a party to the proceeding.

289.33(7n)(b) (b) Siting resolution. If a municipality is added to the negotiation and arbitration proceeding under par. (a), it shall adopt a siting resolution under sub. (6) within 30 days of the agreement and otherwise comply with the other provisions of this section.

289.33(8) (8) Subjects of negotiation and arbitration.

289.33(8)(a) (a) The applicant and the local committee may negotiate with respect to any subject except:

289.33(8)(a)1. 1. Any proposal to make the applicant’s responsibilities under the approved feasibility report or plan of operation less stringent.

289.33(8)(a)2. 2. The need for the facility.

289.33(8)(b) (b) Only the following items are subject to arbitration under this section:

289.33(8)(b)1. 1. Compensation to any person for substantial economic impacts which are a direct result of the facility including insurance and damages not covered by the waste management fund.

289.33(8)(b)1m. 1m. Reimbursement of reasonable costs, but not to exceed $20,000, incurred by the local committee relating to negotiation, mediation and arbitration activities under this section.

289.33(8)(b)2. 2. Screening and fencing related to the appearance of the facility. This item may not affect the design capacity of the facility.

289.33(8)(b)3. 3. Operational concerns including, but not limited to, noise, dust, debris, odors and hours of operation but excluding design capacity.

289.33(8)(b)4. 4. Traffic flows and patterns resulting from the facility.

289.33(8)(b)5. 5. Uses of the site where the facility is located after closing the facility.

289.33(8)(b)6. 6. Economically feasible methods to recycle or reduce the quantities of waste to the facility. At facilities for which the applicant will not provide or contract for collection and transportation services, this item is limited to methods provided at the facility.

289.33(8)(b)7. 7. The applicability or nonapplicability of any preexisting local approvals.

289.33(9) (9) Negotiation.

289.33(9)(a) (a) Commencement of negotiation. Negotiation between the applicant and the local committee may commence at any time after receipt of notification of participation from the board under sub. (6) (b). The time and place of negotiating sessions shall be established by agreement between the applicant and the local committee. Negotiating sessions shall be open to the public.

289.33(9)(b) (b) Determination of negotiability. Either party may petition the board in writing for a determination as to whether a proposal is excluded from negotiation under sub. (8) (a). A petition may be submitted to the board before a proposal is offered in negotiation. A petition may not be submitted to the board later than 7 days after the time a proposal is offered for negotiation. The board shall conduct a hearing on the matter and issue its decision within 14 days after receipt of the petition. The decision of the board is binding on the parties and is not subject to judicial review. Negotiation on any issue, including issues subject to a petition under this paragraph, may continue pending the issuance of the board’s decision.

289.33(9)(c) (c) Mediation. Negotiating sessions may be conducted with the assistance of a mediator if mediation is approved by both the applicant and the local committee. Either the applicant or the local committee may request a mediator at any time during negotiation. The function of the mediator is to encourage a voluntary settlement by the applicant and the local committee. The mediator may not compel a settlement. The board shall provide the applicant and the local committee with the names and qualifications of persons willing to serve as mediators. If the applicant and the local committee cannot agree on the selection of a mediator, the applicant and the local committee may request the board to appoint a mediator.

289.33(9)(d) (d) Mediation costs. The mediator shall submit a statement of his or her costs to the applicant, the local committee and the board. Except as otherwise specified in the negotiated agreement or the arbitration award under sub. (10), the costs of the mediator shall be shared equally between the applicant and the local committee. The local committee’s share of the mediator’s costs shall be divided among the participating municipalities in proportion to the number of members appointed to the local committee by each participating municipality.

289.33(9)(e) (e) Failure to participate; default. Failure of the applicant or the local committee to participate in negotiating sessions constitutes default except as provided in this paragraph. It is not default if the applicant or the local committee fails to participate in negotiating sessions either for good cause or if further negotiations cannot be reasonably expected to result in a settlement. Either party may petition the board in writing for a determination as to whether a given situation constitutes default. The board shall conduct a hearing in the matter. Notwithstanding s. 227.03 (2), the decision of the board on default is subject to judicial review under ss. 227.52 to 227.58. If the applicant defaults, the applicant may not construct the facility. If the local committee defaults, 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).

289.33(9)(em) (em) Default hearing costs. The board shall submit to the applicant and local committee a statement of the costs of a hearing held under par. (e) to determine whether the failure of an applicant or a local committee to participate in the negotiation sessions under this subsection constitutes default. Except as otherwise specified in an arbitration award, the costs of a hearing to determine whether a given situation constitutes default shall be shared between the applicant and the local committee. The local committee’s share of the hearing costs shall be divided among the participating municipalities in proportion to the number of members appointed to the local committee by each participating municipality.

289.33(9)(f) (f) Submission of certain items to the department. Any item proposed to be included in a negotiated agreement which affects an applicant’s responsibilities under an approved feasibility report or plan of operation may be submitted to the department for consideration. An item may be submitted to the department under this paragraph after agreement on the item is reached by the applicant and the local committee either during or at the conclusion of negotiation. The department shall approve or reject items submitted under this paragraph within 2 weeks after receipt of the item. The department shall reject those items which would make the applicant’s responsibilities less stringent than required under the approved feasibility report or plan of operation. The department shall provide written reasons for the rejection. Items which are rejected may be revised and resubmitted. The department may incorporate all items which are not rejected under this paragraph into the approved feasibility report or the plan of operation. The department shall inform the applicant, the local committee and the board of its decisions under this paragraph.

289.33(9)(g) (g) Written agreement. All issues subject to negotiation which are resolved to the satisfaction of both the applicant and the local committee and, if necessary, are approved by the department under par. (f), shall be incorporated into a written agreement.

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.