Chapter 289

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.

289.41(5)(b) (b) Initial determination; public utilities. If the department determines that a public utility complies with minimum financial standards under sub. (7), if the department determines that none of the contingent liabilities or other data or information in the financial statements or opinion of the certified public accountant disqualifies the public utility and if the department determines that the public utility complies with minimum security requirements under sub. (9), then the department shall find that the utility meets the net worth requirements which constitutes proof of financial responsibility for that year.

289.41(5)(c) (c) Adverse determination. If the department determines that contingent liabilities or other data or information provided in the opinion of the certified public accountant disqualifies a company under par. (a) or (b), the department shall issue findings of fact to support this determination and provide the company with an opportunity for a hearing.

289.41(5)(d) (d) Annual review. In order to continue to meet the net worth requirements each year, a company shall reapply under sub. (4) (b) submitting material required under sub. (4) (c). Subsequent determinations by the department shall take into consideration any changes in the plan of operation and adjustments to the estimated total cost of compliance with closure and any long-term care or corrective action requirements because of inflation or other changes.

289.41(5)(e) (e) Special review. If the department has reason to believe that a company no longer meets the net worth requirements, it may require the company to submit information and materials to show compliance at any time.

289.41(5)(f) (f) Failure to meet net worth requirements. If a company does not meet net worth requirements during the annual review or at any special review, the company shall establish proof of financial responsibility utilizing one of the standard methods under sub. (3) within 45 days after the department issues its findings.

289.41(6) (6) Compliance with minimum financial standards under net worth method.

289.41(6)(a) (a) Compliance. Except as provided under par. (j), (k), (L), or (m) or sub. (7), calculations and determinations based on data and information provided in the opinion of the certified public accountant are required to establish that the company satisfies each of the criteria under pars. (b) to (i) in order to comply with minimum financial standards.

289.41(6)(b) (b) Net worth to closure, long-term care and corrective action cost ratio. The net worth of the company at the end of its most recently completed fiscal year equals or exceeds 6 times the estimated total cost of compliance with the closure and any long-term care requirements specified in the plan of operation or the approved plan under s. 291.29 plus the costs of any corrective action required under s. 291.37.

289.41(6)(c) (c) Minimum net worth. The net worth of a company at the end of its most recently completed fiscal year equals or exceeds $10,000,000.

289.41(6)(d) (d) Net fixed assets to total assets ratio. The quotient of the net fixed assets divided by total tangible assets at the end of the company’s most recently completed fiscal year exceeds 0.3.

289.41(6)(e) (e) Working capital to total liabilities ratio. The quotient of the working capital provided from operations divided by total liabilities at the end of the company’s most recently completed fiscal year exceeds 0.1.

289.41(6)(f) (f) Total liabilities to net worth ratio. The quotient of the total liabilities divided by net worth at the end of the company’s most recently completed fiscal year is less than 1.5.

289.41(6)(g) (g) Credit worthiness. The quotient of the total of the working capital provided from operations at the end of the company’s most recently completed fiscal year plus interest payments made during that year plus rental expenses incurred during that year, used as a dividend, divided by the total of interest payments made during that year plus rental expenses incurred during that year plus the product of the sinking fund at the end of that year times the tax factor, used as the divisor, exceeds 2.0. The tax factor equals the quotient of one, used as the dividend, divided by the total of one less the sum of the average federal income tax rate plus the average Wisconsin tax rate calculated in that year, used as the divisor.

289.41(6)(h) (h) Average self-financing measure. The average for the self-financing measures for the company’s 5 previous fiscal years exceeds 0.8. The self-financing measure equals the quotient of the working capital provided from operations at the end of the company’s fiscal year less dividend payments made during that year, used as the dividend, divided by the capital expenditures made during that year, used as the divisor.

289.41(6)(i) (i) Absence of qualifiers in certified public accountant’s opinion. Information provided in the opinion of the certified public accountant does not indicate any of the following qualifications:

289.41(6)(i)1. 1. Accounting practices or calculations made by or suspected to have been made by the company in its financial statements which deviate from generally accepted accounting principles.

289.41(6)(i)2. 2. Any limitation on the scope of the audit procedures.

289.41(6)(i)3. 3. Any indication that materials presented in or calculations made in the financial statement are unreliable because of future events not susceptible to reasonable estimation.

289.41(6)(j) (j) Variance from one criterion. If calculations and determinations based on data and information provided in the opinion of the certified public accountant establish that the company satisfies both the criteria under pars. (b) and (c) and all but one of the criteria under pars. (d) to (i) and if the department finds that the company meets minimum variance requirements, the department may grant a variance and issue a determination stating that the company complies with minimum financial standards. In order to meet minimum variance requirements:

289.41(6)(j)1. 1. The deviation from the criterion may not be significant;

289.41(6)(j)2. 2. The company is required to have satisfied the criterion consistently in previous fiscal years; and

289.41(6)(j)3. 3. The company is required to establish that it is likely to satisfy the criterion in future fiscal years.

289.41(6)(k) (k) Exception from one criterion. Paragraph (e) does not apply to a company that owns a solid waste facility at which more than one-half, by volume, of the solid waste disposed of is high-volume industrial waste if the company satisfies the criteria under pars. (b) to (d) and (f) to (i).

289.41(6)(L) (L) Alternative criteria for certain companies. Paragraphs (e) and (f) do not apply to a company that owns a solid waste facility at which more than one-half, by volume, of the solid waste disposed of is high-volume industrial waste if the company satisfies the criteria under pars. (b) to (d) and (g) to (i) and one of the following criteria:

289.41(6)(L)1. 1. The company received a rating for its senior unsubordinated debt of “AAA,” “AA,” “A,” or “BBB” from Standard and Poor’s Corporation, or of “Aaa,” “Aa,” “A,” or “Baa” from Moody’s Investor Service, Incorporated, in the most recent issuance of ratings by either firm.

289.41(6)(L)2. 2. The quotient of the sum of net income plus depreciation, plus depletion, plus amortization, minus $10,000,000, divided by total liabilities at the end of the company’s most recently completed fiscal year exceeds 0.1.

289.41(6)(m) (m) Alternative criteria for waste wood facility. Paragraph (d) does not apply to a company that owns a solid waste facility that processes waste wood if more than 50 percent, by volume, of the waste wood is processed to be used for energy recovery and the company satisfies the criteria under pars. (b), (c), and (e) to (i), and the following criteria:

289.41(6)(m)1. 1. The quotient of short-term assets divided by short-term liabilities at the end of the company’s most recent fiscal year equals or exceeds 4.0.

289.41(6)(m)2. 2. The quotient of the sum of net income plus interest expense, plus depreciation, plus amortization, less capital expenditures, less dividends for the company’s most recently completed fiscal year divided by the sum of interest expenses and mandatory payments on funded debt for that year equals or exceeds 4.0.

289.41(7) (7) Compliance with minimum financial standards under net worth method; public utilities.

289.41(7)(a) (a) Compliance. A public utility is required to satisfy both the criteria under pars. (b) and (c) in order to comply with minimum financial standards.

289.41(7)(b) (b) Net worth to closure, long-term care and corrective action costs ratio; minimum net worth; and absence of qualifiers in certified public accountant’s opinion. Calculations and determinations based on data and information provided in the opinion of the certified public accountant are required to establish that the utility satisfies each of the criteria under sub. (6) (b), (c) and (i); and

289.41(7)(c) (c) Minimum bond ratings. The public utility received a bond rating of “A” or better from the Moody’s investor service, incorporated, or “A” or better from Standard and Poor’s corporation in the most recent issuance of ratings by either firm.

289.41(9) (9) Minimum security requirements under net worth method; public utilities; assessment order.

289.41(9)(a) (a) Minimum risk pool. A public utility may comply with minimum security requirements under a risk pool arrangement if at least 2 public utilities utilize this arrangement.

289.41(9)(b) (b) Inability to meet closure and long-term care or corrective action costs. If a public utility which utilizes the risk pool arrangement does not comply with the closure and long-term care requirements specified in any plan of operation or approved plan under s. 291.29 or with any corrective action required under s. 291.37 and if the department or the department of justice is unable to obtain compliance with these requirements after appropriate legal action because of bankruptcy, insolvency or the financial inability of the utility to comply with these requirements, then the department is authorized to enter an assessment order.

289.41(9)(c) (c) Assessment order. If the department is authorized to enter an assessment order, the order shall direct each public utility which utilized the risk pool arrangement in the previous year, except the utility which failed to comply with the closure and long-term care or corrective action requirements, to pay a share of the estimated total cost of compliance with these requirements proportional to the amount of electricity generated by each of these public utilities during the previous year.

289.41(10) (10) Sale of facility. A person acquiring ownership, possession or operation of a solid or hazardous waste facility shall establish proof of financial responsibility as required under sub. (2). The previous owner or operator is responsible and shall maintain any required proof of financial responsibility until the person acquiring ownership, possession or operation of the facility establishes any required proof of financial responsibility.

289.41(11) (11) Closure, long-term care and corrective action.

289.41(11)(a) (a) Failure to comply with closure and long-term care requirements. If the owner or operator of the facility fails to comply with the closure and any long-term care requirements in any plan of operation or approved plan under s. 291.29:

289.41(11)(a)1. 1. The department may require the forfeiture or convert any standard method of establishing proof of financial responsibility if the owner or operator established proof of financial responsibility under sub. (3). All moneys received from the forfeiture or conversion of any standard method of establishing proof of financial responsibility shall be credited to the waste management fund.

289.41(11)(a)3. 3. The department may issue an assessment order under sub. (9) (c) if the owner or operator established proof of financial responsibility by complying with minimum financial standards under sub. (7) and minimum security requirements under sub. (9). All moneys received from the assessment order shall be credited to the waste management fund.

289.41(11)(a)4. 4. The department may request the department of justice to initiate court action against the owner or operator to recover moneys sufficient to pay the cost of complying with the closure and long-term care requirements specified in any rule, order, plan of operation, or other plan approval or approved plan under s. 291.29. Any moneys recovered in this type of action or as a settlement in anticipation of this type of action shall be credited to the waste management fund.

289.41(11)(am) (am) Failure to comply with corrective action requirements. If the owner or operator of the facility fails to comply with any corrective action requirements under s. 291.37:

289.41(11)(am)1. 1. The department may require the forfeiture or convert any standard method of establishing proof of financial responsibility if the owner or operator established proof of financial responsibility under sub. (3). All moneys received from the forfeiture or conversion of any standard method of establishing proof of financial responsibility shall be credited to the waste management fund.

289.41(11)(am)3. 3. The department may issue an assessment order under sub. (9) (c) if the owner or operator established proof of financial responsibility by complying with minimum financial standards under sub. (7) and minimum security requirements under sub. (9). All moneys received from the assessment order shall be credited to the waste management fund.

289.41(11)(am)4. 4. The department may request the department of justice to initiate court action against the owner or operator to recover moneys sufficient to pay the cost of complying with a corrective action required under s. 291.37. Any moneys recovered in this type of action or as a settlement in anticipation of this type of action shall be credited to the waste management fund.

289.41(11)(b) (b) Compliance with closure and long-term care requirements.

289.41(11)(b)1. 1. If the owner or operator of a waste facility fails to comply with the closure and any long-term care requirements in any plan of operation or approved plan under s. 291.29, the department may take action or contract with a person to take action to comply with these requirements from moneys obtained for that purpose under par. (a).

289.41(11)(b)2. 2. If the owner or operator of an approved facility for which the plan of operation was approved under s. 289.30 (6) before August 9, 1989, fails to comply with long-term care requirements in the plan of operation after the requirement to provide proof of financial responsibility expires under sub. (1m) (b) or (f) and if the department takes reasonable administrative and legal action to require compliance or to obtain moneys under par. (a) 4., then the department may take action or contract with a person to take action to comply with the requirements even though no moneys have been obtained under par. (a).

289.41(11)(bm) (bm) Compliance with corrective action requirements. If the owner or operator of a waste facility fails to comply with any corrective action required under s. 291.37, the department may take action or contract with a person to take action to comply with a corrective action required under s. 291.37 from moneys obtained for that purpose under par. (am).

289.41(11)(c) (c) Prevention of imminent hazard; closure and long-term care. If the owner or operator of an approved facility for which the plan of operation was approved under s. 289.30 (6) before August 9, 1989, fails to comply with the closure and any long-term care requirements in any plan of operation during the period for which the owner or operator is required to provide proof of financial responsibility, if the department determines that the failure to comply with these requirements presents an imminent or substantial danger to the health or environment and if the department takes reasonable administrative and legal action to require compliance or to obtain moneys under par. (a), then the department may take action or contract with a person to take action to comply with these requirements even though no moneys have been obtained under par. (a).

289.41(11)(cm) (cm) Prevention of imminent hazard; corrective action. If the owner or operator of an approved facility for which the plan of operation was approved under s. 289.30 (6) before August 9, 1989, fails to comply with any corrective action required under s. 291.37, if the department determines that the failure to comply with a corrective action requirement presents an imminent or substantial danger to the health or environment and if the department takes reasonable administrative and legal action to require compliance or to obtain moneys under par. (am), then the department may take action or contract with a person to take action to comply with a corrective action required under s. 291.37 even though no moneys have been obtained under par. (am).

289.41(12) (12) No environmental impact statement requirements. A determination under this section does not constitute a major state action under s. 1.11 (2).

289.41 History History: 1981 c. 374; 1983 a. 27; 1983 a. 53 s. 114; 1985 a. 29 s. 3202 (39); 1987 a. 384; 1989 a. 31, 359; 1991 a. 31, 39; 1993 a. 135; 1995 a. 63; 1995 a. 227 ss. 588, 617 to 624; Stats. 1995 s. 289.41; 1995 a. 377 ss. 1 to 3; 1997 a. 35 ss. 327, 328, 396; 2001 a. 16; 2011 a. 167; 2013 a. 168 s. 21; 2013 a. 281; 2015 a. 50; 2017 a. 365 s. 112; 2023 a. 107.

289.41 Cross-reference Cross-reference: See also ch. NR 520, Wis. adm. code.

289.42 289.42 Operation of facilities.

289.42(1) (1) 

289.42(1)(a) (a) The department shall, by rule, establish a program for the certification of persons participating in or responsible for the operation of solid waste disposal facilities. The department shall do all of the following:

289.42(1)(a)1. 1. Identify those persons or positions involved in the operation of a solid waste disposal facility who are required to obtain certification.

289.42(1)(a)2. 2. Establish the requirements for and term of initial certification and requirements for recertification upon expiration of that term. At a minimum, the department shall require applicants to complete a program of training and pass an examination in order to receive initial certification.

289.42(1)(a)3. 3. Establish different levels of certification and requirements for certification for different sizes or types of facilities, as the department determines is appropriate.

289.42(1)(a)4. 4. Impose fees for the operator training and certification program, except that the department may not impose a fee on an individual who is eligible for the veterans fee waiver program under s. 45.44.

289.42(1)(a)5. 5. Require that there be one or more certified operators on the site of a solid waste disposal facility, except for a facility designed for the disposal of high-volume industrial waste, at all times during the facility’s hours of operation.

289.42(1)(b) (b) The department may not apply the requirements established under par. (a) to a nonapproved facility until January 1, 1992.

289.42(1)(c) (c) The training required under par. (a) 2. may be conducted by the department or by another person with the approval of the department.

289.42(1)(d) (d) The department may suspend or revoke a solid waste disposal facility’s operating license if persons at the facility fail to obtain certification required under par. (a) 1. or for failure to have a certified operator on the site as required under par. (a) 5.

289.42(1)(e) (e) The department may suspend or revoke an operator’s certification for failure to comply with this chapter, rules promulgated under this chapter or conditions of operation made applicable to a solid waste disposal facility by the department.

289.42(2) (2) 

289.42(2)(a) (a) No person engaged in the construction, operation or maintenance of a solid waste disposal facility or hazardous waste disposal facility may dismiss, discipline, demote, transfer, reprimand, harass, reduce the pay of, discriminate against or otherwise retaliate against any employee, or threaten to take any of those actions, because the employee reported to any supervisor, appointing authority, law enforcement official, member of the governing body of the local governmental unit in which the solid waste disposal facility or hazardous waste disposal facility is located or the department any information gained by the employee which the employee reasonably believes demonstrates a violation of this chapter or rules promulgated under this chapter.

289.42(2)(b) (b) Paragraph (a) does not restrict the right of an employer to take appropriate disciplinary action against an employee who knowingly makes an untrue statement or discloses information the disclosure of which is expressly prohibited by state or federal law.

289.42(2)(c) (c)

289.42(2)(c)1. 1. Any employee who believes that his or her rights under par. (a) have been violated may, within 30 days after the violation occurs or the employee obtains knowledge of the violation, whichever is later, file a written complaint with the department specifying the nature of the retaliatory action or threat of retaliatory action and requesting relief. The department shall investigate the complaint and shall determine whether there is probable cause to believe that a violation of par. (a) has occurred. If the department finds that probable cause exists, it shall attempt to resolve the complaint by conference, conciliation or persuasion. If the complaint is not resolved, the department shall proceed with notice and a contested case hearing on the complaint as provided in ch. 227. The hearing shall be held within 60 days after receipt of the complaint by the department, unless the parties to the proceeding agree otherwise.

289.42(2)(c)2. 2. The department shall issue its decision and order on the complaint within 30 days after the hearing. If the department finds that a violation of par. (a) has occurred, it may order the employer to take action to remedy the effects of the violation, including reinstating the employee, providing back pay to the employee or taking disciplinary action against employees responsible for the violation.

289.42(2)(d) (d) This subsection does not limit other protections or remedies available to an employee, including those granted by ordinance, statute, rule, contract or collective bargaining agreement.

289.42 History History: 1995 a. 227 ss. 531, 532, 991; 2011 a. 209.

289.42 Cross-reference Cross-reference: See also ch. NR 524, Wis. adm. code.

289.43 289.43 Waivers; exemptions.

289.43(1) (1) Definition. In this section, “recycling” means the process by which solid waste is returned to productive use as material or energy, but does not include the collection of solid waste.

289.43(2) (2) Waiver; emergency condition. The department may waive compliance with any requirement of ss. 289.21 to 289.32, 289.47, 289.53 or 289.95 or shorten the time periods under ss. 289.21 to 289.32, 289.47, 289.53 or 289.95 provided to the extent necessary to prevent an emergency condition threatening public health, safety or welfare.

289.43(3) (3) Waiver; research projects. The intent of this subsection is to encourage research projects designed to demonstrate the feasibility of recycling certain solid wastes while providing adequate and reasonable safeguards for the environment. The department may waive compliance with the requirements of this chapter for a project developed for research purposes to evaluate the potential for the recycling of high-volume industrial waste if the following conditions are met:

289.43(3)(a) (a) The project is designed to demonstrate the feasibility of recycling solid waste or the feasibility of improved solid waste disposal methods.