Chapter 289

289.43(8)(a) (a) The department shall conduct a continuing review of the potential hazard to public health or the environment of various types of solid wastes and solid waste facilities. The department shall consider information submitted by any person concerning the potential hazard to public health or the environment of any type of solid waste.

289.43(8)(b) (b) If the department, after a review under par. (a), finds that regulation under this chapter is not warranted in light of the potential hazard to public health or the environment, the department shall either:

289.43(8)(b)1. 1. Promulgate a rule specifying types of solid waste that need not be disposed of at a licensed solid waste disposal facility.

289.43(8)(b)2. 2. On a case-by-case basis, exempt from regulation under this chapter specified types of solid waste facilities.

289.43(8)(b)3. 3. Authorize an individual generator to dispose of a specified type of solid waste at a site other than a licensed solid waste disposal facility.

289.43(8)(b)4. 4. Authorize use of the solid waste in public works projects.

289.43(8)(c) (c) The department may require periodic testing of solid wastes and impose other conditions on exemptions granted under par. (b).

289.43(8)(d) (d)

289.43(8)(d)1. 1. The department may not regulate under s. 289.30 or 289.31 any facility for the disposal of material dredged by a municipality or county or a contractor for a municipality or county from Lake Michigan, Lake Superior, or bays or harbors adjacent to Lake Michigan or Lake Superior, if all of the following apply:

289.43(8)(d)1.a. a. The department determines that the dredging and disposal will have a demonstrable economic public benefit, as defined under s. 281.36 (1) (am).

289.43(8)(d)1.b. b. The department determines that the cumulative adverse environmental impact of the dredging and disposal is insignificant and will not injure public rights or interests, cause environmental pollution, as defined in s. 299.01 (4), or result in material injury to the rights of any riparian owner.

289.43(8)(d)1.c. c. The department determines that the facility is in compliance with performance standards established by the department by rule.

289.43(8)(d)1.d. d. The facility accepts dredged material for not more than 10 years or in an amount not to exceed 35,000 cubic yards, whichever occurs first, unless there is a material adverse change in the contamination of the dredged material that would be disposed of at the facility or if there is a material change in the intended use of the dredged material.

289.43(8)(d)1.e. e. The disposal facility is located at least 100 feet from any wetland or critical habitat area and is outside a floodplain. This subd. 1. e. does not apply if the project is for beach nourishment above the ordinary high water mark on a public beach that has already been noticeably disturbed by human activities such as the construction of a parking lot, public swimming area, or other improvement and that has no unique ecological value.

289.43(8)(d)1.f. f. The disposal facility is located at least 100 feet from any water supply well.

289.43(8)(d)1.g. g. The facility confines the disposal area to as limited a geographic area as is practicable.

289.43(8)(d)1.h. h. The department determines that the application and proposed facility are in compliance with any other conditions established by the department by rule.

289.43(8)(d)1.i. i. At least 60 days prior to beginning disposal under this paragraph, the municipality or county or the contractor for the municipality or county submits to the department the address or location of the disposal site, the name of the person or entity accepting the dredged material, a map or aerial image showing the disposal location, the coordinates for the center of the disposal location, the dates when dredged material is to be received at the disposal location, the approximate volume of material to be disposed, the intended uses of the dredged material, and the available laboratory analytical data for samples collected from the dredged material to determine environmental impact.

289.43(8)(d)1.j. j. The department determines that a received application is complete and does not provide a written objection to the application within 30 days of receipt by the department. An application may not be reviewed until the department has determined the application is complete. One application may authorize disposal of dredged material from one dredging location at multiple disposal sites.

289.43(8)(d)2. 2. An exemption granted by the department under this paragraph shall be valid for a period not to exceed 10 years and shall expire if the amount of dredged material deposited at the facility exceeds 35,000 cubic yards, there is a material adverse change in the contamination of the dredged material that would be disposed of at the facility, or there is a material change in the intended use of the dredged material.

289.43(9) (9) Exemption from regulation; animal carcasses. The department may not regulate under chs. 281, 285 or 289 to 299 any animal carcass buried or disposed of, in accordance with ss. 95.35 and 95.50, on the property owned or operated by the owner of the carcass, if the owner is a farmer, as defined under s. 102.04 (3).

289.43 History History: 1995 a. 227 ss. 574, 577 to 580; 1997 a. 27, 35; 2003 a. 88; 2007 a. 20; 2013 a. 80; 2017 a. 59; 2021 a. 93; s. 35.17 correction in (8) (d) 2.

289.43 Cross-reference Cross-reference: See also ch. NR 538, Wis. adm. code.

289.43 Annotation Exemption from regulation under s. 144.44 (7) (g) (now s. 289.43 (8)) preempts municipal regulation. DeRosso Landfill Co. v. City of Oak Creek, 200 Wis. 2d 642, 547 N.W.2d 770 (1996), 94-0440.

289.43 Annotation Local approvals, as defined in s. 289.33 (3) (d), required to construct a low-hazard “clean fill” facility are preempted by sub. (8) and no longer required for exempt facilities, as settled by DeRosso, which remains authoritative and unmodified. Because zoning requirements are expressly listed in s. 289.33 (3) (d) as local approvals, a “clean fill” facility like the one proposed in this case was exempt from any zoning requirements. However, the definition of “local approval” in s. 289.33 (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.

289.44 289.44 Exemption for certain alcohol fuel production systems.

289.44(1) (1) Definitions. As used in this section:

289.44(1)(a) (a) “Distillate waste product” means solid, semisolid or liquid by-products or wastes from the distillation or functionally equivalent process of an alcohol fuel production system.

289.44(1)(b) (b) “Environmentally sound storage facility” means a facility, including a holding lagoon, which is used to store distillate waste products so that no waste products from the facility enter or leach into the waters of the state.

289.44(1)(c) (c) “Private alcohol fuel production system” means an alcohol fuel production system from which no alcohol is sold and from which all the alcohol is used as a fuel by the owner.

289.44(2) (2) Exemption. No permit, license or plan approval is required under this chapter for the owner of a private alcohol fuel production system to establish, construct or operate a system for the treatment, storage or disposal of distillate waste products if the distillate waste product is stored in an environmentally sound storage facility and disposed of using an environmentally safe land spreading technique and the storage, treatment or disposal is confined to the property of the owner.

289.44 History History: 1979 c. 221; 1995 a. 227 s. 537.

289.445 289.445 Exemption for certain fruit and vegetable washing facilities.

289.445(1) (1) Definitions. As used in this section:

289.445(1)(b) (b) “Washing station” has the meaning given in s. 283.62 (1) (b).

289.445(1)(c) (c) “Wash water” has the meaning given in s. 283.62 (1) (c).

289.445(1)(d) (d) “Wash water storage facility” has the meaning given in s. 283.62 (1) (d).

289.445(2) (2) Exemption. No permit, license or, except as provided in par. (d), plan approval is required under this chapter for the owner of a washing station to establish, construct or operate a solid waste facility for the treatment, storage or disposal of wash water or to compost or land spread plant parts separated from wash water if all of the following requirements are met:

289.445(2)(a) (a) The washing station is not adjacent to or operated as part of a food processing plant, as defined in s. 97.29 (1) (h).

289.445(2)(b) (b) All wash water is either stored in a sealed wash water storage facility or is dispersed on land owned or leased by the owner of the washing station in a manner which avoids ponding, runoff or nuisance conditions and in accordance with acceptable agricultural practices or acceptable practices for the land spreading of waste.

289.445(2)(c) (c) All plant parts that are separated from wash water are either composted or stored in a plant parts storage facility and disposed of using an environmentally safe land spreading technique. The treatment, storage, disposal or composting under this paragraph must be confined to property owned or leased by the owner of the washing station.

289.445(2)(d) (d) For a washing station that anticipates operating at least 100 days per year or that operated at least 100 days during the immediately preceding year, do all of the following:

289.445(2)(d)1. 1. Register annually with the department as a washing station.

289.445(2)(d)2. 2. Submit annually an operating plan that implements best management practices and that is approved by the department.

289.445(2)(d)3. 3. Operate only in accordance with the approved operating plan.

289.445 History History: 1995 a. 99; 1995 a. 227 s. 538; Stats. 1995 s. 289.445.

289.45 289.45 Solid waste storage. No person may store or cause the storage of solid waste in a manner which causes environmental pollution.

289.45 History History: 1981 c. 374.; 1995 a. 227 s. 539; Stats. 1995 s. 289.45.

289.46 289.46 Transference of responsibility.

289.46(1) (1) Any person acquiring rights of ownership, possession or operation in a licensed solid or hazardous waste facility at any time after the facility begins to accept waste is subject to all requirements of the license approved for the facility including any requirements relating to long-term care of the facility and is subject to any negotiated agreement or arbitration award related to the facility under s. 289.33. Upon acquisition of the rights, the department shall issue a new operating license if the previous licensee is no longer connected with the operation of the facility, if the new licensee meets all requirements specified in the previous license, the approved plan of operation, if any, and the rules promulgated under s. 291.05 or 291.07, if applicable.

289.46(2) (2) Any person having or acquiring rights of ownership in land where a solid or hazardous waste disposal facility was previously operated may not undertake any activities on the land which interfere with the closed facility causing a significant threat to public health, safety or welfare.

289.46 History History: 1977 c. 377; 1981 c. 374; 1983 a. 410 ss. 62, 2202 (38); Stats. 1983 s. 144.444; 1989 a. 31; 1995 a. 227 s. 625; Stats. 1995 s. 289.46.

289.47 289.47 Closure notice. At least 120 days prior to the closing of a solid waste disposal facility or at least 180 days prior to the closing of a hazardous waste facility, the owner or operator shall notify the department in writing of the intent to close the facility.

289.47 History History: 1995 a. 227 s. 573.

subch. V of ch. 289 SUBCHAPTER V

FACILITIES; REGULATION OF SPECIFIC
FACILITY OR WASTE TYPES

289.51 289.51 Solid waste open burning standards.

289.51(1) (1) As used in this section:

289.51(1)(a) (a) “Air curtain destructor” means a solid waste disposal operation that combines a fixed wall open pit and a mechanical air supply which uses an excess of oxygen and turbulence to accomplish the smokeless combustion of clean wood wastes.

289.51(1)(am) (am) “Household waste” means any solid waste derived from a household, hotel, motel, bunkhouse, ranger station, crew quarters, campground, picnic ground or day-use recreation area.

289.51(1)(b) (b) “Open burning” means the combustion, except in a properly operated air curtain destructor, of solid waste if that combustion lacks any of the following:

289.51(1)(b)1. 1. Control of combustion air to maintain adequate temperature for efficient combustion.

289.51(1)(b)2. 2. Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion.

289.51(1)(b)3. 3. Control of the emission of the combustion products.

289.51(1)(c) (c) “Population equivalent” means the population equal to the sum of the population of the geographical area based on the most recent census data, or department of administration census data used for tax sharing purposes, plus the seasonal population not included in the census data, plus one person per 1,000 pounds per year of industrial, commercial and agricultural waste.

289.51(2) (2) The department shall grant licenses for the open burning of solid waste at the licensee’s solid waste disposal facilities if:

289.51(2)(a) (a) The open burning operation serves a population equivalent of less than 10,000 or, if the operation is controlled by more than one municipality, a population equivalent of less than 2,500 for each additional controlling municipality. The department shall give consideration to seasonal variations in population in granting partial yearly burning exemptions.

289.51(2)(b) (b) All portions of the licensed operation are greater than one-fourth mile from any residence or place of public gathering, or written consent is obtained from all residents and proprietors within one-fourth mile thereof.

289.51(2)(c) (c) The open burning does not include the burning of wet combustible rubbish, garbage, oily substances, asphalt, plastic or rubber products and, if the open burning operation serves a population equivalent of more than 2,500, the open burning includes only wood and paper which is separated from other solid waste.

289.51(2)(d) (d) The open burning operation is supervised by an attendant.

289.51(2)(e) (e) The open burning operation is accomplished in a nuisance-free manner and does not create hazards for adjacent properties.

289.51(2)(f) (f) Adequate firebreaks are provided and provision is made to obtain the services of the local fire protection agency if needed.

289.51(2)(g) (g) The open burning operation is not in violation of any federal air pollution control or municipal solid waste regulations, or any state air pollution control rules required to be adopted under applicable federal statutes or regulations.

289.51(3) (3) The department may not require that ash resulting from the burning of a structure for practice or instruction of fire fighters or the testing of fire fighting equipment be disposed of in a landfill licensed under s. 289.31.

289.51 History History: 1995 a. 227 s. 535; Stats. 1995 s. 289.51; 2009 a. 28.

289.53 289.53 Commercial PCB waste storage and treatment facilities.

289.53(1) (1) Definitions. In this section:

289.53(1)(a) (a) “Commercial” means providing services to persons other than the owner or operator.

289.53(1)(b) (b) “PCBs” has the meaning specified under s. 299.45 (1).

289.53(1)(c) (c) “PCB waste” means any product containing PCBs, as defined under s. 299.45 (1) (c), which is subject to regulation under s. 299.45 after the product becomes a solid waste. This term also means any material which is contaminated by the discharge, as defined under s. 292.01 (3), of a substance containing PCBs subject to regulation under s. 292.11.

289.53(2) (2) Feasibility report and related provisions. Except as provided under sub. (6), no person may establish or construct a commercial PCB waste storage or treatment facility unless the person complies with the requirement under ss. 289.23 to 289.29 in the same manner as if the facility were a solid waste disposal facility including each of the following:

289.53(2)(a) (a) Submitting a feasibility report under s. 289.23 (1) to determine whether the site has potential for use in establishing a PCB waste storage or treatment facility.

289.53(2)(b) (b) Complying with requirements for the preparation and contents of a feasibility report under s. 289.24 (1) including any special requirements for PCB waste storage or treatment facilities.

289.53(2)(c) (c) Following the notice, hearing, procedure and other requirements under ss. 289.23 to 289.29 including any environmental impact requirements.

289.53(3) (3) Plan of operation and related provisions. Except as provided under sub. (6), no person may establish, construct or operate a commercial PCB waste storage or treatment facility unless the person complies with the requirements under s. 289.30 as if the facility were a solid waste disposal facility including all of the following:

289.53(3)(a) (a) Submitting a plan of operation which complies with requirements for preparation and contents specified under s. 289.30 (4) including any special requirements for PCB waste storage or treatment facilities except the department may waive any requirement for proof of financial responsibility for long-term care.

289.53(3)(b) (b) Constructing the facility in accordance with an approved plan of operation as required under s. 289.30 (8).

289.53(3)(c) (c) Operating the facility in accordance with the approved plan of operation subject to the sanctions under s. 289.30 (9).

289.53(4) (4) Financial responsibility requirements. Except as provided under sub. (6), no person may establish or construct a commercial PCB waste storage or treatment facility unless the person complies with s. 289.41.