Chapter 291

Ch. 291 Cross-reference Cross-reference: See also chs. NR 660, 661, 662, 663, 664, 665, 666, 667, 668, 670, 673 and 679, Wis. adm. code.

subch. I of ch. 291 SUBCHAPTER I

DECLARATION OF POLICY

291.001 291.001 Declaration of policy. The legislature finds that hazardous wastes, when mismanaged, pose a substantial danger to the environment and public health and safety. To ensure that hazardous wastes are properly managed within this state, the legislature declares that a state-administered regulatory program is needed which:

291.001(1) (1) Relies upon private industry or local units of government to provide hazardous waste management services.

291.001(2) (2) Requires the transportation, storage, treatment and disposal of hazardous wastes to be performed only by licensed operators.

291.001(3) (3) Requires generators of hazardous waste to utilize operators licensed to transport, treat, store or dispose of hazardous wastes.

291.001(4) (4) Does not interfere with, control or regulate the manufacturing processes which generate hazardous wastes.

291.001(5) (5) Ensures the maintenance of adequate records on, and the reporting of, the disposition of all hazardous wastes either generated in or entering this state.

291.001(6) (6) Encourages to the extent feasible, the reuse, recycling or reduction of hazardous wastes.

291.001(7) (7) Provides adequate care and protection of disposal facilities after the facilities cease to accept hazardous wastes.

291.001(8) (8) Provides members of the public and units of local government an opportunity to review and comment upon the construction, operation and long-term care of hazardous waste management facilities.

291.001(9) (9) Meets the minimum requirements of the resource conservation and recovery act.

291.001 History History: 1995 a. 227 s. 647.

291.001 Annotation The right to a decent burial: Hazardous waste and its regulation in Wisconsin. Harrington, 66 MLR 223 (1983).

291.001 Annotation Changes in the ownership of hazardous waste disposal sites: Original and successor liability. Kelly. 67 MLR 691. (1984).

subch. II of ch. 291 SUBCHAPTER II

DEFINITIONS

291.01 291.01 Definitions. In this chapter:

291.01(1) (1) “Closing” has the meaning designated under s. 289.01 (5).

291.01(2) (2) “Department” means the department of natural resources.

291.01(3) (3) “Disposal” means the discharge, deposit, injection, dumping, spilling, leaking or placing of any hazardous waste into or on any land or water in a manner which may permit the hazardous waste or any hazardous constituent to be emitted into the air, to be discharged into any waters of the state or otherwise to enter the environment. “Disposal” does not include the generation, transportation, storage or treatment of hazardous waste.

291.01(4) (4) “Environmental pollution” means the contaminating or rendering unclean or impure the air, land or waters of the state, or making the same injurious to public health, harmful for commercial or recreational use, or deleterious to fish, bird, animal or plant life.

291.01(5) (5) “Generation” means the act or process of producing hazardous waste but does not include any manufacturing process.

291.01(7) (7) “Hazardous waste” or “waste” means any solid waste identified by the department as hazardous under s. 291.05 (1), (2) or (4).

291.01(8) (8) “Hazardous waste facility” means a site or structure for the treatment, storage or disposal of hazardous waste and includes all of the contiguous property under common ownership or control surrounding the site or structure.

291.01(9) (9) “Hazardous waste management” means the systematic source reduction, collection, source separation, storage, transportation, exchange, processing, treatment, recovery and disposal of hazardous wastes.

291.01(10) (10) “Long-term care” has the meaning designated under s. 289.01 (21).

291.01(11) (11) “Manifest” means a form used for identifying the quantity, composition and the origin, routing and destination of hazardous waste during its transport.

291.01(12) (12) “Municipality” means any city, town, village, county, county utility district, town sanitary district, public inland lake protection and rehabilitation district or metropolitan sewage district.

291.01(14) (14) “Person” means an individual, owner, operator, corporation, limited liability company, partnership, association, municipality, interstate agency, state agency or federal agency, department or instrumentality.

291.01(16) (16) “Solid waste” has the meaning given under s. 289.01 (33).

291.01(17) (17) “Resource conservation and recovery act” means the federal resource conservation and recovery act, 42 USC 6901 to 6991i, as amended on November 8, 1984.

291.01(18) (18) “Storage” means the containment of hazardous waste for a temporary period in a manner that does not constitute disposal.

291.01(19) (19) “Termination” has the meaning designated under s. 289.01 (40).

291.01(20) (20) “Transport” means the movement of hazardous wastes by air, rail, highway, water or other means, except for the movement of hazardous waste within the site at which the hazardous waste is generated or within a facility that is licensed under this subchapter.

291.01(21) (21) “Treatment” means any method, technique or process, including neutralization, which follows generation and which is designed to change the physical, chemical or biological character or composition of any hazardous waste so as to neutralize the hazardous waste or so as to render the waste nonhazardous, safer for transport, amenable for recovery, amenable for storage or reduced in volume. “Treatment” includes incineration.

291.01(22) (22) “Treatment facility” means a facility at which hazardous waste is subjected to treatment and may include a facility where hazardous waste is generated. This term does not include a waste water treatment facility whose discharges are regulated under ch. 283 unless the facility is required to be permitted as a hazardous waste treatment facility under the resource conservation and recovery act.

291.01(23) (23) “Wastewater” means all sewage.

291.01 History History: 1995 a. 227 ss. 649, 992.

291.01 Annotation The deterioration of useful materials into waste is a process that results in the generation of waste under s. 144.61 (4) [now s. 291.01 (5)]; the yard at which waste is stored and a hole dug to bury waste are facilities under s. 144.61 (5m) [now s. 291.01 (8)]. State v. Edward Kraemer & Sons. Inc. 170 Wis. 2d 646, 489 N.W.2d 708 (Ct. App. 1992).

291.01 Annotation The language of s. 144.61 (5m) [now s. 291.01 (8)] suggests that the coverage of s. 144.62 [now ss. 291.05 to 291.11, 291.91 and 291.93] is restricted to facilities intended to be used for disposal, treatment, or storage of waste. Acme Printing Ink Co. v. Menard, Inc. 870 F. Supp. 1477 (1994).

subch. III of ch. 291 SUBCHAPTER III

ADMINISTRATION

291.05 291.05 Required rules.

291.05(1) (1) The department shall promulgate by rule criteria identical to those promulgated by the U.S. environmental protection agency under section 6921 (a) of the Resource Conservation and Recovery Act for identifying the characteristics of hazardous waste. The rules shall require that any person generating or transporting, or owning or operating a facility for treatment, storage or disposal of, any hazardous waste or any substance which meets the criteria shall notify the department of that fact within 90 days after the promulgation of the rule.

291.05(2) (2) 

291.05(2)(a) (a) The department shall promulgate by rule a list of hazardous wastes.

291.05(2)(b) (b) Except as provided under par. (c), the list of hazardous wastes shall be identical to the list promulgated by the U.S. environmental protection agency under section 6921 (b) of the Resource Conservation and Recovery Act.

291.05(2)(c) (c) The department may include or retain on the list of hazardous wastes any additional solid waste not included on the list promulgated by the U.S. environmental protection agency if the department determines that the additional solid waste has characteristics which identify it as a hazardous waste based on the criteria promulgated under sub. (1) and if the department determines that the inclusion or retention is necessary to protect public health, safety or welfare. The department shall issue specific findings and conclusions on which its determinations are based and shall include or retain the additional solid waste on the list of hazardous wastes by rule.

291.05(3) (3) 

291.05(3)(a) (a) The department shall promulgate rules under subs. (1) and (2) which establish not less than 2 nor more than 4 classes of hazardous waste and shall assign wastes to a particular class. The classes shall be based upon the relative degrees of hazard posed by the waste. Standards established under this chapter for hazardous waste facilities or for equipment which transports hazardous waste shall recognize and differentiate between the classes of waste which the facility or equipment is intended to transport, treat, store or dispose.

291.05(3)(b) (b) In determining the relative degrees of hazard of classes of wastes under par. (a), the department shall consider the following:

291.05(3)(b)1. 1. The amounts of wastes and the concentrations of the harmful or potentially harmful components of the wastes;

291.05(3)(b)2. 2. The likelihood of exposure to humans or the environment of the harmful or potentially harmful components of the wastes based upon the mobility and stability of harmful components, and the biological or chemical conversion of the components to other harmful chemicals; and

291.05(3)(b)3. 3. The harm to humans or the environment resulting from the exposure identified under subd. 2. from the harmful components.

291.05(4) (4) The department shall promulgate by rule a list of hazardous constituents which shall include, but need not be limited to, the hazardous constituents specified in 40 CFR 261, appendix VIII. The department may not list a hazardous constituent which is not specified in 40 CFR 261, appendix VIII unless it determines that the listing of the constituent is necessary to protect public health, safety or welfare. The department shall issue specific findings and conclusions on which such a determination to list a hazardous constituent is based.

291.05(5) (5) 

291.05(5)(a) (a) The department shall promulgate rules regarding hazardous waste transportation that establish standards for the following:

291.05(5)(a)1. 1. Record keeping concerning hazardous waste transported, and its source and delivery points.

291.05(5)(a)2. 2. Labeling procedures.

291.05(5)(a)3. 3. Use of a manifest system

291.05(5)(a)4. 4. Containers used to transport waste.

291.05(5)(a)5. 5. Equipment operator qualifications.

291.05(5)(b) (b) In developing requirements for licenses to transport hazardous waste under par. (a), the department shall maintain consistency with rules promulgated by the department of transportation.

291.05(6) (6) The department shall adopt rules which prescribe requirements for:

291.05(6)(a) (a) The establishment and maintenance of records.

291.05(6)(b) (b) The making of reports, including the manifest to be used during the transport of hazardous waste.

291.05(6)(c) (c) Sampling and analysis.

291.05(6)(d) (d) Installation, calibration, use and maintenance of monitoring equipment.

291.05(6)(e) (e) The design, construction, operation, closing and long-term care of hazardous waste facilities.

291.05(6)(f) (f) Corrective action under s. 291.37.

291.05(7) (7) 

291.05(7)(a) (a) The department shall promulgate by rule a graduated schedule of reasonable license, plan approval and review fees to be charged for hazardous waste activities under ss. 291.23, 291.25, 291.29, 291.31 and 291.87, except that the department may not impose a fee on an individual who applies for a license under s. 291.23 and who is eligible for the veterans fee waiver program under s. 45.44.

291.05(7)(b) (b) Hazardous waste activities under ss. 291.23, 291.25, 291.29, 291.31 and 291.87 consist of reviewing feasibility reports, plans of operation, closure plans and license applications, issuing determinations of feasibility, plan of operation approvals, operating licenses, interim licenses and variances, inspecting construction projects, approving closure plans and taking other actions in administering this ss. 291.23, 291.25, 291.29, 291.31 and 291.87.

291.05(7)(c) (c) The department shall establish hazardous waste review fees at a level anticipated to recover the hazardous waste program staff review costs of conducting hazardous waste review activities.

291.05 History History: 1995 a. 227 ss. 657, 658, 659, 663, 664, 667, 677, 686, 992; 2011 a. 209; 2017 a. 365 s. 111.

291.05 Cross-reference Cross-reference: See also ch. NR 182, Wis. adm. code.

291.07 291.07 Authorized rules.

291.07(1) (1) The department may, by rule, prohibit particular methods of treatment or disposal of particular hazardous wastes, upon a finding that restrictions on treatment or disposal methods are necessary to protect public health and safety or the environment.

291.07(2) (2) The department may exempt by rule any person who generates, transports, treats, stores or disposes of hazardous wastes from any provision under this chapter or from any rule promulgated under this chapter if the generation, transportation, treatment, storage or disposal does not present a significant hazard to public health and safety or the environment.

291.07(3) (3) The department may promulgate rules which specify the duration of licenses issued under s. 291.25.

291.07 History History: 1995 a. 227 ss. 660, 662, 665, 992.

291.07 Cross-reference Cross-reference: See also chs. NR 660, 661, 662, 663, 664, 665, 666, 667, 668, 670, 673 and 679, Wis. adm. code.

291.09 291.09 Department duties.

291.09(1) (1) The department, in cooperation with the University of Wisconsin-Extension and other interested parties, shall develop educational programs and offer technical assistance to persons interested in hazardous waste management.

291.09(2) (2) If facilities or equipment subject to this chapter are also subject to regulation by the department under other statutes or rules, the department shall integrate its regulatory processes to avoid duplicative or contradictory actions or requirements.

291.09(3) (3) The department shall study whether the list of hazardous wastes under s. 291.05 (2) should be revised as it relates to commercial chemical products.