Chapter 291

291.35 History History: 1995 a. 227 s. 648.

291.37 291.37 Corrective action.

291.37(1) (1) Definitions. In this section:

291.37(1)(a) (a) “Corrective action” means any method for protecting human health or the environment from a release.

291.37(1)(b) (b) “Release” means any spill, leak, pumping, pouring, emission, emptying, discharge, injection, escape, leaching, dumping or disposal of a hazardous waste or hazardous constituent.

291.37(1)(c) (c) “Solid waste management unit” means any unit designed or used for the storage, treatment or disposal of solid waste or hazardous waste or both, which is located in a hazardous waste facility required to have a license under s. 291.25 or a permit under 42 USC 6925 or required to comply with s. 291.29. “Solid waste management unit” includes but is not limited to a container, tank, surface impoundment, disposal facility, incinerator, wastepile, landfill, underground injection well, land treatment unit or wastewater treatment facility.

291.37(1)(d) (d) “Surface impoundment” means all or any part of a hazardous waste facility that is a natural topographic depression, constructed excavation or diked area, that is formed primarily of earthen materials and that holds or is designed to hold liquid waste or waste containing liquids that are readily separable from the solid waste portion of the waste. “Surface impoundment” includes a pond, lagoon or holding, storage, settling or aeration pit, but does not include an underground injection well or a topographic depression containing surface water, such as a drainage ditch containing runoff from a parking lot or a storm water retention basin, unless the surface water is contaminated by a hazardous waste.

291.37(2) (2) Corrective action.

291.37(2)(a) (a) If the department determines that a release from a solid waste management unit has occurred the department may, except as provided under par. (b), require the owner or operator of the facility containing the solid waste management unit to take corrective action, including corrective action beyond the facility, if necessary. The department may require an owner or operator to take corrective action regardless of when the hazardous waste or hazardous constituent released was placed in the solid waste management unit. The department may require corrective action by means of a special order under this paragraph or as a condition of licensing or plan approval under s. 291.25 or 291.29. An order or condition under this paragraph shall state, with reasonable specificity, the nature of the corrective action required, shall include a description of the property on which the corrective action is to be taken and shall specify a period for achieving compliance and a period for the owner or operator to establish proof of financial responsibility for the cost of corrective action.

291.37(2)(b) (b) If an owner or operator who is required under par. (a) to take corrective action on property that is beyond a facility shows that despite making a good faith effort the owner or operator was unable to obtain permission from the owner or occupant to enter that property, the owner or operator need not comply with the requirement with respect to that property.

291.37 History History: 1987 a. 384; 1993 a. 16; 1995 a. 227 s. 696; Stats. 1995 s. 291.37.

291.37 Cross-reference Cross-reference: See also ch. NR 720, Wis. adm. code.

subch. V of ch. 291 SUBCHAPTER V

ENFORCEMENT; PENALTIES

291.85 291.85 Imminent danger.

291.85(1) (1) Notice required. If the department receives evidence that the past or present handling, storage, treatment, transportation or disposal of any hazardous waste may present an imminent and substantial danger to health or the environment, the department shall do all of the following:

291.85(1)(a) (a) Provide immediate notice of the danger to each affected municipality.

291.85(1)(b) (b) Promptly post notice of the danger at the site at which the danger exists, or order a person responsible for the danger to post such notice.

291.85(2) (2) Other actions. In addition to the action under sub. (1), the department may do one or more of the following:

291.85(2)(a) (a) Issue any special order necessary to protect public health or the environment.

291.85(2)(b) (b) Take any other action necessary to protect public health or the environment.

291.85(2)(c) (c) Request the department of justice to commence legal proceedings to restrain or enjoin any person from handling, storage, treatment, transportation or disposal which presents or may present an imminent and substantial danger to health or the environment or take any other action as may be necessary to protect public health and the environment.

291.85 History History: 1977 c. 377; 1987 a. 384; 1995 a. 227 s. 693; Stats. 1995 s. 291.85.

291.87 291.87 License actions; hearing; public comment.

291.87(1) (1) If the department proposes to deny, suspend or revoke a license for the reasons stated under sub. (1m) (b) to (f), the department shall comply with the procedures specified under this section.

291.87(1m) (1m) A license issued under s. 291.25 may be denied, suspended or revoked if the applicant or licensee does any of the following:

291.87(1m)(a) (a) Fails to pay any fee required under ss. 291.05 (7) and 291.33.

291.87(1m)(b) (b) Fails to comply with this chapter or any rule promulgated under this chapter.

291.87(1m)(c) (c) Fails to comply with the approved plan of operation under s. 289.30.

291.87(1m)(d) (d) Fails to disclose fully all relevant facts in a feasibility report, plan of operation or license application or in a review of a feasibility report, plan of operation or license.

291.87(1m)(e) (e) Misrepresents any relevant fact at any time.

291.87(1m)(f) (f) Operates the facility in a way that endangers human health or the environment to the extent that denial, suspension or revocation of the license is the only way to provide an acceptable level of protection.

291.87(2) (2) If the department determines that a person licensed under s. 291.25 failed to comply with the rules promulgated under this chapter or failed to comply with the approved plan of operation under s. 289.30, the department shall give written notice to the person. The notice shall state that the department proposes to deny, suspend or revoke the license and shall inform the person that a hearing may be requested within 45 days after the notice is issued.

291.87(3) (3) If the licensee requests a hearing within 45 days after receiving the notice under sub. (2), the department shall schedule a hearing and give notice of the hearing by publishing a class 1 notice, under ch. 985, by publishing the notice on its Internet website, and, upon request, by providing the notice to interested members of the public, at least 45 days prior to the date scheduled for the hearing. The department’s notice to interested members of the public may be given through an electronic notification system established by the department. For the purpose of determining the date on which notice is published under this subsection, the date on which the department first publishes the notice on its Internet website shall be considered the date of notice. If the licensee requests a contested case hearing and if the conditions specified under s. 227.42 (1) (a) to (d) are satisfied, the department shall conduct the hearing as a contested case; otherwise, the department shall conduct the hearing as an informational hearing. There is no statutory right to any hearing concerning the denial, suspension or revocation of a license for the reasons stated under sub. (1m) (b) to (f) except as provided under this subsection.

291.87(4) (4) After the conclusion of any hearing under sub. (3), the department shall issue a public notice containing a copy of the proposed decision and a statement describing the opportunity for public comment during the 45-day period after the notice is given.

291.87(5) (5) If the licensee does not request a hearing within 45 days after receiving the notice under sub. (2), the department shall issue a public notice containing a copy of the proposed decision and a statement describing the opportunity for public comment during the 45-day period after the notice is given.

291.87(6) (6) The department shall give the notice required under subs. (4) and (5) by all of the following means:

291.87(6)(a) (a) Publishing a class 1 notice, under ch. 985, in a newspaper likely to give notice in the area where the facility is located, publishing the notice on its Internet website, and, upon request, providing the notice 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.

291.87(6)(b) (b) Broadcasting a notice by radio announcement in the area where the facility is located.

291.87(6)(c) (c) Providing written notice to each affected municipality.

291.87(6m) (6m) For the purpose of determining the date on which notice is provided under subs. (4) and (5), the date on which the department first publishes the notice on its Internet website as required under sub. (6) shall be considered the date of notice.

291.87(7) (7) At the conclusion of the 45-day period after the department gives notice under sub. (4) or (5), the department shall issue its final decision denying, suspending or revoking the license. There is no statutory right to a hearing concerning the final decision issued under this subsection.

291.87 History History: 1983 a. 298; 1985 a. 182 s. 57; 1987 a. 384; 1995 a. 227 ss. 681, 688; Stats. 1995 s. 291.87; 2011 a. 167; 2017 a. 365 s. 112.

291.89 291.89 Review of alleged violations. Any 6 or more citizens or any municipality may petition for review of an alleged violation of this chapter or any rule promulgated or special order, plan approval, license or any term or condition of a license issued under this chapter in the following manner:

291.89(1) (1) They shall submit to the department a petition identifying the alleged violator and setting forth in detail the reasons for believing a violation occurred. The petition shall state the name and address of a person within the state authorized to receive service of answer and other papers in behalf of the petitioners and the name and address of a person authorized to appear at a hearing in behalf of the petitioners.

291.89(2) (2) Upon receipt of a petition under this section, the department may:

291.89(2)(a) (a) Conduct a hearing in the matter within 60 days of receipt of the petition. A hearing under this paragraph shall be a contested case under ch. 227. Within 60 days after the close of the hearing, the department shall either:

291.89(2)(a)1. 1. Serve written notice specifying the law or rule alleged to be violated, containing findings of fact, conclusions of law and an order, which shall be subject to review under ch. 227; or

291.89(2)(a)2. 2. Dismiss the petition.

291.89(2)(b) (b) Initiate action under s. 291.95.

291.89(3) (3) If the department determines that a petition has been filed maliciously or in bad faith it shall issue a finding to that effect and the person complained against is entitled to recover expenses on the hearing in a civil action.

291.89 History History: 1981 c. 374; 1995 a. 227 s. 694; Stats. 1995 s. 291.89.

291.91 291.91 Inspections and right of entry.

291.91(1) (1) The department may inspect hazardous waste facility construction projects to determine compliance with this chapter and rules promulgated and licenses issued under this chapter.

291.91(2) (2) Upon the request of any officer, employee or authorized representative of the department and with notice provided no later than upon the officer’s, employee’s or authorized representative’s arrival, any person who generates, stores, treats, transports or disposes of hazardous wastes shall permit the officer, employee or authorized representative access to vehicles, premises and records relating to hazardous wastes at reasonable times. An officer, employee or authorized representative of the department may take samples of any hazardous waste. The officer, employee or authorized representative shall commence and complete inspections with reasonable promptness. If samples are taken, the officer, employee or authorized representative shall give a receipt for each sample to the person in charge of the facility and, upon request, half of the sample taken. The department shall furnish promptly a copy of the results of any analysis of any sample which is taken and a copy of the inspection report to the person in charge of the facility.

291.91 History History: 1977 c. 377; 1981 c. 374; 1987 a. 27, 384; 1995 a. 227 ss. 670, 690, 691.

291.93 291.93 Orders. The department may issue orders to effectuate the purposes of this chapter and enforce those orders by all appropriate administrative and judicial proceedings.

291.93 History History: 1995 a. 227 s. 672.

291.95 291.95 Enforcement.

291.95(1) (1) Department action. If the department determines that any person is in violation of any requirement of this chapter or any rule promulgated or special order, plan approval or term or condition of a license or variance issued under this chapter, the department may do one or more of the following:

291.95(1)(a) (a) Give written notice to the violator of his or her failure to comply with the requirement.

291.95(1)(b) (b) Issue a special order requiring compliance within a specified time period.

291.95(1)(c) (c) Refer the matter to the department of justice for enforcement under s. 299.95.

291.95(2) (2) Department of justice action; disposition. The department of justice may initiate the legal action requested by the department under sub. (1) (c) after receipt of the written request. In any action commenced by it under this subsection, the department of justice shall, prior to stipulation, consent order, judgment or other final disposition of the case, consult with the department for the purpose of determining the department’s views on final disposition. The department of justice may not enter into a final disposition different than that previously discussed without first informing the department.

291.95(3) (3) Assistance of district attorney. In any criminal action commenced under s. 291.97, the department of justice may request the assistance of the district attorney of any county in which the violation occurred, and the district attorney shall provide the requested assistance.

291.95(4) (4) Venue. Any action on a violation shall be commenced in the circuit court for the county in which the violation occurred. If all parties stipulate and the circuit court for Dane County agrees, the proceedings may be transferred to the circuit court for Dane County.

291.95 History History: 1977 c. 377; 1981 c. 374; 1987 a. 384; 1995 a. 227 s. 695; Stats. 1995 s. 291.95.

291.95 Annotation Enforcement of ch. 144 [now chs. 281 to 299] is not contingent on the issuance of a compliance order. State v. Edward Kraemer & Sons, Inc. 170 Wis. 2d 646, 489 N.W.2d 708 (Ct. App. 1992).

291.97 291.97 Violations and penalties.

291.97(1) (1) Civil penalties. Any person who violates any provision of this chapter or any rule promulgated or special order, plan approval or term or condition of a license or variance issued under this chapter shall forfeit not less than $100 nor more than $25,000 for each violation. Each day of a continuing violation is a separate offense.

291.97(2) (2) Criminal penalties.

291.97(2)(a) (a) Any person who willfully does any of the following shall be fined not less than $100 nor more than $25,000 or imprisoned for not more than one year in the county jail or both:

291.97(2)(a)1. 1. In connection with an application, label, manifest, record, report, license or other document relating to this chapter, makes an untrue statement of a material fact or fails to state a material fact with the result that the statements made in the document are misleading.

291.97(2)(a)2. 2. Destroys, alters, conceals or fails to submit a record required to be maintained or submitted under this chapter or a rule promulgated or special order, plan approval or term or condition of a license or variance issued under this chapter.

291.97(2)(b) (b) Any person who willfully does any of the following is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $100,000:

291.97(2)(b)1. 1. Transports any hazardous waste to a facility or site that does not have a license as required under s. 291.25.

291.97(2)(b)2. 2. Stores, treats, transports or disposes of any hazardous waste without a license required under s. 291.23 or 291.25 or in violation of a rule promulgated or special order, plan approval or term or condition of a license or variance issued under s. 291.23, 291.25, 291.29, 291.31 or 291.87.

291.97(2)(c) (c)

291.97(2)(c)1. 1. For a 2nd or subsequent violation under par. (a), a person is guilty of a Class I felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (i), the person may be fined not more than $50,000.

291.97(2)(c)2. 2. For a 2nd or subsequent violation under par. (b), a person is guilty of a Class F felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (f), the person may be fined not more than $150,000.

291.97(2)(d) (d) Each day of a continuing violation constitutes a separate offense.

291.97(2)(e) (e) If a person commits a violation in connection with an enterprise, as defined under s. 946.82 (2), the maximum penalties specified in pars. (a), (b) and (c) shall be doubled.

291.97(3) (3) Cost recovery. In addition to the penalties provided under subs. (1) and (2), the court may award the department of justice the reasonable and necessary expenses of the investigation and prosecution of the violation, including attorney fees and the costs of performing monitoring. The department of justice shall deposit in the state treasury for deposit into the general fund all moneys that the court awards to the department or the state under this subsection. The costs of investigation and the expenses of prosecution, including attorney fees, shall be credited to the appropriation account under s. 20.455 (1) (gh).

291.97 History History: 1977 c. 377; 1981 c. 374; 1987 a. 384; 1993 a. 16; 1995 a. 227 s. 698; Stats. 1995 s. 291.97; 1997 a. 283; 2001 a. 109; 2007 a. 20; 2013 a. 168.

291.97 Annotation Bankruptcy trustees acting within the scope of their official capacities may not be held personally liable under this section. State v. Better Brite Plating, 168 Wis. 2d 363, 483 N.W.2d 574 (1991).

291.97 Annotation To obtain a conviction under s. 144.74 (2) (b) [now s. 291.97 (2) (b)] the state need not prove that the defendant knew a license was required. State v. Fettig, 172 Wis. 2d 428, 493 N.W.2d 254 (Ct. App. 1992).