Chapter 289

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.

289.41(1m)(g)2. 2. Within 30 days after the notice under subd. 1. is published, 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.

289.41(1m)(g)3. 3. Within 30 days after the notice under subd. 1. is published, any county, city, village or town, the applicant or any 6 or more persons may file a written request that the hearing under subd. 2. 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 all of the following apply:

289.41(1m)(g)3.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.

289.41(1m)(g)3.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.

289.41(1m)(g)3.c. c. There is a dispute of material fact.

289.41(2) (2) Requirement for financial responsibility.

289.41(2)(a) (a) Disposal facilities. The owner or operator of a solid or hazardous waste disposal facility shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the closure and long-term care requirements specified in any rule, order, plan of operation or other plan approval during the period specified in sub. (1m) (b) or under sub. (1m) (f).

289.41(2)(b) (b) Hazardous waste storage and treatment facilities. The owner or operator of a hazardous waste storage or treatment facility shall maintain proof of financial responsibility ensuring the availability of funds for compliance with all closure requirements specified in the plan of operation.

289.41(2)(c) (c) Hazardous waste disposal, storage and treatment facilities. If corrective action is required under s. 291.37, the owner or operator of the hazardous waste facility to which the requirement applies shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the corrective action requirement.

289.41(2)(d) (d) Unlicensed hazardous waste facilities. The owner or operator of an unlicensed hazardous waste facility subject to s. 291.29 shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the approved closure plan and, if applicable, the long-term care plan.

289.41(3) (3) Standard methods of establishing proof of financial responsibility.

289.41(3)(a) (a) Standard methods. The owner or operator of a facility may establish proof of financial responsibility required under sub. (2) (a) to (d) by obtaining any of the following made payable to or established for the benefit of the department and approved by the department:

289.41(3)(a)1. 1. A bond.

289.41(3)(a)2. 2. A deposit.

289.41(3)(a)3. 3. An established escrow account, the assets of which may include the following:

289.41(3)(a)3.a. a. Securities issued by the federal government.

289.41(3)(a)3.b. b. Debt securities issued by a commission, board, agency, or other instrumentality of the federal government that have a rating that is the highest rating category assigned by Standard & Poor’s Corporation, Moody’s Investors Service, or other similar nationally recognized rating agency.

289.41(3)(a)3.c. c. State bonds issued under subch. I of ch. 18.

289.41(3)(a)3.d. d. Corporate bonds that have a rating that is the highest rating category assigned by Standard & Poor’s Corporation, Moody’s Investors Service, or other similar nationally recognized rating agency. Corporate bonds may not be used to provide more than 50 percent of the required amount of proof of financial responsibility.

289.41(3)(a)4. 4. An irrevocable letter of credit.

289.41(3)(a)4m. 4m. An irrevocable trust, the corpus of which may include the following:

289.41(3)(a)4m.a. a. Securities issued by the federal government.

289.41(3)(a)4m.b. b. Debt securities issued by a commission, board, agency, or other instrumentality of the federal government that have a rating that is the highest rating category assigned by Standard & Poor’s Corporation, Moody’s Investors Service, or other similar nationally recognized rating agency.

289.41(3)(a)4m.c. c. State bonds issued under subch. I of ch. 18.

289.41(3)(a)4m.d. d. Corporate bonds that have a rating that is the highest rating category assigned by Standard & Poor’s Corporation, Moody’s Investors Service, or other similar nationally recognized rating agency. Corporate bonds may not be used to provide more than 50 percent of the required amount of proof of financial responsibility.

289.41(3)(a)5. 5. A financial commitment satisfactory to the department to ensure that the owner or operator will comply with the closure and any long-term care requirements specified in the plan of operation or the approved plan under s. 291.29. The department shall consider the request of any owner or operator to establish proof of financial responsibility under this subdivision.

289.41(3)(a)6. 6. If corrective action is required under s. 291.37, a financial commitment satisfactory to the department to ensure that the owner or operator will comply with the requirement. The department shall consider the request of any owner or operator to establish proof of financial responsibility under this subdivision.

289.41(3)(b) (b) Duration of standard methods. The department may approve a standard method of establishing proof of financial responsibility under par. (a) which expires before the termination of the owner’s obligation to provide proof of financial responsibility if the owner or operator shows to a reasonable degree of certainty that the proof of financial responsibility can be renewed or replaced upon expiration and that the owner or operator has an adequate plan to maintain proof of financial responsibility for the closure and long-term care requirements of the plan until termination of the owner’s obligation to provide proof of financial responsibility.

289.41(3)(c) (c) Changes. The owner or operator may change from one standard method of establishing proof of financial responsibility under par. (a) to another standard method under par. (a), to an alternative method under sub. (3m), or to a net worth method of establishing proof of financial responsibility under sub. (4).

289.41(3m) (3m) Alternative method of establishing financial responsibility for solid waste disposal facilities; minimum financial standards for municipalities.

289.41(3m)(a) (a) Alternative method requirements. A municipality may establish proof of financial responsibility for solid waste disposal facilities as required under sub. (2) by applying to the department and meeting the alternative method requirements. The department shall establish by rule the minimum financial requirements for a municipality to establish proof of financial responsibility under this subsection. If a facility is owned or operated by more than one municipality, any such municipality may establish proof of financial responsibility under this subsection on behalf of itself and the other municipalities that are owners or operators. A municipality that seeks to establish proof of financial responsibility under this subsection shall satisfy the minimum financial requirements established by rule and all of the following requirements:

289.41(3m)(a)1. 1. If the municipality has any outstanding, rated, general obligation bonds, none have been rated lower than “Baa” as issued by Moody’s Investors Service or “BBB” as issued by Standard & Poor’s Corporation.

289.41(3m)(a)2. 2. The municipality’s most recent audited annual financial statement shows a ratio of cash plus marketable securities to total expenditures of not less than 0.05, and a ratio of annual debt service to total expenditures of not greater than 0.20.

289.41(3m)(b) (b) Failure to meet alternative method requirements. If at any time the department determines that a municipality does not meet the minimum financial requirements under par. (a) 1. and 2. and established by rule, the municipality shall, within 45 days of the department’s determination, establish proof of financial responsibility using one of the standard methods under sub. (3).

289.41(4) (4) Net worth method of establishing proof of financial responsibility; generally.

289.41(4)(a) (a) Net worth method. A company may establish proof of financial responsibility required under sub. (2) (a), (c) or (d) by applying to the department and meeting the net worth requirements.

289.41(4)(b) (b) Application. A company which seeks to establish proof of financial responsibility utilizing the net worth method shall submit an application to the department as a part of the initial license application, written submissions required under s. 291.37 or annual review procedure which includes a copy of the most recent annual audited financial statements which were distributed to owners, stockholders or other persons with a financial interest in the company and the opinion of an independent certified public accountant.

289.41(4)(c) (c) Opinion of certified public accountant. The opinion of the independent certified public accountant shall include all of the following based upon generally accepted accounting principles:

289.41(4)(c)1. 1. All data and information necessary to determine if the company complies with minimum financial standards under sub. (6) or (7).

289.41(4)(c)2. 2. Statements of any substantive qualifications or reservations the certified public accountant has concerning the financial statements and concerning the ability of the company to meet its obligations.

289.41(4)(c)3. 3. Statements of all material contingent liabilities.

289.41(5) (5) Department determination under net worth method.

289.41(5)(a) (a) Initial determination. Except as provided under par. (b), if the department determines that a company complies with minimum financial standards under sub. (6) and if the department determines that none of the contingent liabilities or other data or information provided in the financial statements or opinion of the certified public accountant disqualifies the company, then the department shall find that the company meets the net worth requirements which constitutes proof of financial responsibility for that year.