Chapter 289

289.26 History History: 1995 a. 227 ss. 553, 563, 991.

289.27 289.27 Contested case hearing.

289.27(1) (1) Request for treatment as a contested case. Within 30 days after the notice under s. 289.25 (3) is published for a solid waste disposal facility, or within 45 days after the notice under s. 289.25 (3) is published for a hazardous waste facility, any county, city, village or town, the applicant or any 6 or more persons may file a written request that the hearing under s. 289.26 (1) 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:

289.27(1)(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;

289.27(1)(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; and

289.27(1)(c) (c) There is a dispute of material fact.

289.27(2) (2) Applicability. This section applies only if a person requests the treatment of the hearing as a contested case under sub. (1) within the 30-day or 45-day period and has a right to a hearing under that subsection. Any denial of a request for the treatment of the hearing as a contested case received within the 30-day or 45-day period under sub. (1) shall be in writing, shall state the reasons for denial and is an order reviewable under ch. 227. If the department does not enter an order granting or denying the request for the treatment of the hearing as a contested case within 20 days after the written request is filed, the request is deemed denied.

289.27(3) (3) Nonapplicability. Notwithstanding sub. (2), this section does not apply if a hearing on the feasibility report is conducted as a part of a hearing under s. 293.43 and the time limits, notice and hearing provisions under that section supersede the time limits, notice and hearing provisions under s. 289.25 (2) and (3) and this section.

289.27(4) (4) Time limits. Except as provided under s. 289.29 (5):

289.27(4)(a) (a) The division of hearings and appeals in the department of administration shall schedule the hearing to be held within 120 days after the expiration of the 30-day or 45-day period under sub. (1).

289.27(4)(b) (b) The final determination of feasibility shall be issued within 90 days after the hearing is adjourned.

289.27(5) (5) Determination of need; decision by hearing examiner. If a contested case hearing is conducted under this section, the secretary shall issue any decision concerning determination of need, notwithstanding s. 227.46 (2) to (4). The secretary shall direct the hearing examiner to certify the record of the contested case hearing to him or her without an intervening proposed decision. The secretary may assign responsibility for reviewing this record and making recommendations concerning the decision to any employee of the department.

289.27 History History: 1995 a. 227 s. 554, 565, 991.

289.28 289.28 Determination of need.

289.28(1) (1) Determination of need; issues considered. A feasibility report shall contain an evaluation to justify the need for the proposed facility unless the facility is exempt under sub. (2). The department shall consider the following issues in evaluating the need for the proposed facility:

289.28(1)(a) (a) An approximate service area for the proposed facility which takes into account the economics of waste collection, transportation and disposal.

289.28(1)(b) (b) The quantity of waste suitable for disposal at the proposed facility generated within the anticipated service area.

289.28(1)(c) (c) The design capacity of the following facilities located within the anticipated service area of the proposed facility:

289.28(1)(c)1. 1. Approved facilities, including the potential for expansion of those facilities on contiguous property already owned or controlled by the applicant.

289.28(1)(c)2. 2. Nonapproved facilities which are environmentally sound. It is presumed that a nonapproved facility is not environmentally sound unless evidence to the contrary is produced.

289.28(1)(c)3. 3. Other proposed facilities for which feasibility reports are submitted and determined to be complete by the department.

289.28(1)(c)4. 4. Facilities for the recycling of solid waste or for the recovery of resources from solid waste which are licensed by the department.

289.28(1)(c)5. 5. Proposed facilities for the recycling of solid waste or for the recovery of resources from solid waste which have plans of operation which are approved by the department.

289.28(1)(c)6. 6. Solid waste incinerators licensed by the department.

289.28(1)(c)7. 7. Proposed solid waste incinerators which have plans of operation which are approved by the department.

289.28(1)(d) (d) If the need for a proposed municipal facility cannot be established under pars. (a) to (c), the extent to which the proposed facility is needed to replace other facilities of that municipality at the time those facilities are projected to be closed in the plans of operation.

289.28(2) (2) Determination of need; exempt facilities. Subsections (1) and (3) and ss. 289.24 (1) (f) and 289.29 (1) (d) do not apply to:

289.28(2)(a) (a) Any facility which is part of a prospecting or mining operation with a permit under s. 293.45 or 293.49.

289.28(2)(b) (b) Any solid waste disposal facility designed for the disposal of waste generated by a pulp or paper mill.

289.28(3) (3) Issuance of determination of need. Except for a facility which is exempt under sub. (2), the department shall issue a determination of need for the proposed facility at the same time the final determination of feasibility is issued. If the department determines that there is insufficient need for the facility, the applicant may not construct or operate the facility.

289.28 History History: 1995 a. 227 ss. 556, 557, 560, 991.

289.28 Annotation Municipal replacement facilities are not exempt from the needs determination. 77 Atty. Gen. 81.

289.29 289.29 Determination of feasibility.

289.29(1) (1) Criteria for determination of feasibility; environmental impact.

289.29(1)(a) (a) A determination of feasibility shall be based only on this chapter and ch. 291 and rules promulgated under those chapters. A determination of feasibility for a facility for the disposal of metallic mining waste shall be based only on this chapter and ch. 291 and rules promulgated under those chapters with special consideration given to s. 289.05 (2) and rules promulgated under that section.

289.29(1)(b) (b) If there is a negotiated agreement or an arbitration award prior to issuance of the determination of feasibility, the final determination of feasibility may not include any item which is less stringent than a corresponding item in the negotiated agreement or arbitration award.

289.29(1)(c) (c) The department may receive into evidence at a hearing conducted under s. 289.26 or 289.27 any environmental impact assessment or environmental impact statement for the facility prepared under s. 1.11 and any environmental impact report prepared under s. 23.11 (5). The adequacy of the environmental impact assessment, environmental impact statement or environmental impact report is not subject to challenge at that hearing.

289.29(1)(d) (d) The department may not approve a feasibility report for a solid or hazardous waste disposal facility unless the design capacity of that facility does not exceed the expected waste to be disposed of at that facility within 15 years after that facility begins operation. The department may not approve a feasibility report for a solid or hazardous waste disposal facility unless the design capacity of that facility exceeds the expected waste to be disposed of at that facility within 10 years after that facility begins operation except that this condition does not apply to the expansion of an existing facility.

289.29(2) (2) Maximum number of facilities.

289.29(2)(a) (a) Except as provided in par. (b), the department may not issue a favorable determination of feasibility for a solid waste disposal facility in a 3rd class city if 2 or more approved facilities that are solid waste disposal facilities are in operation within the city in which the solid waste disposal facility is proposed to be located.

289.29(2)(b) (b) The prohibition in par. (a) does not apply to an expansion of or addition to an existing approved facility that is a solid waste disposal facility by the owner or operator of the existing approved facility on property that is contiguous to the property on which the existing approved facility is located and that is owned or under option to lease or purchase by the owner or operator of the existing approved facility.

289.29(3) (3) Contents of final determination of feasibility. The department shall issue a final determination of feasibility which shall state the findings of fact and conclusions of law upon which it is based. The department may condition the issuance of the final determination of feasibility upon special design, operational or other requirements to be submitted with the plan of operation under s. 289.30. The final determination of feasibility shall specify the design capacity of the proposed facility. The issuance of a favorable final determination of feasibility constitutes approval of the facility for the purpose stated in the application but does not guarantee plan approval under s. 289.30 or licensure under s. 289.31.

289.29(4) (4) Issuance of final determination of feasibility. Except as provided under sub. (5), if no hearing is conducted under s. 289.26 or 289.27, the department shall issue the final determination of feasibility within 60 days after the 30-day or 45-day period under s. 289.27 (1) has expired.

289.29(5) (5) Issuance of final determination of feasibility in certain situations involving utilities and mining. If a determination of feasibility is identified in the listing specified in s. 196.491 (3) (a) 3. a., the issuance of a final determination of feasibility is subject to the time limit under s. 196.491 (3) (a) 3. b. If a determination of feasibility is required under s. 293.43, the issuance of a final determination of feasibility is subject to the time limits under s. 293.45 (2) or 293.49, whichever is applicable.

289.29 History History: 1995 a. 227 ss. 555, 558, 559, 561, 991; 1997 a. 204.

289.30 289.30 Plan of operation.

289.30(1) (1) Plan of operation required. Prior to constructing a solid waste disposal facility or a hazardous waste facility, the applicant shall submit to the department a plan of operation for the facility.

289.30(2) (2) Feasibility report prerequisite. No person may submit a plan of operation for a facility prior to the time the person submits a feasibility report for that facility. A person may submit a plan of operation with the feasibility report or at any time after the feasibility report is submitted. If a person submits the plan of operation prior to the final determination of feasibility, the plan of operation is not subject to review at any hearing conducted under s. 289.26 or 289.27 and is not subject to judicial review under ss. 227.52 to 227.58 in the review of any decision under s. 289.26 or 289.27.

289.30(3) (3) Feasibility report; certain facilities. The department may require the applicant for a hazardous waste treatment or storage facility to submit the feasibility report and the plan of operation at the same time and, notwithstanding subs. (2), (10) and (11), both the feasibility report and the plan of operation shall be considered at a public hearing conducted under ss. 289.26 and 289.27, and both are subject to judicial review in a single proceeding.

289.30(4) (4) Preparation; contents. The proposed plan of operation shall be prepared by a registered professional engineer and shall include at a minimum a description of the manner of solid waste disposal or hazardous waste treatment, storage or disposal and a statement setting forth the proposed development, daily operation, closing and long-term care of the facility. The proposed plan of operation shall specify the method by which the owner or operator will maintain proof of financial responsibility under s. 289.41. The department shall specify by rule the minimum contents of a plan of operation submitted for approval under this section and no plan is complete unless the information is supplied. The rules may specify special standards for plans of operation relating to hazardous waste facilities. Within 30 days after a plan of operation is submitted or, if the plan of operation is submitted with the feasibility report under sub. (2), within 30 days after the department issues notice that the feasibility report is complete, the department shall notify the applicant in writing if the plan is not complete, specifying the information which is required to be submitted before the report is complete. If no notice is given, the report is deemed complete on the date of its submission.

289.30(5) (5) Daily cover. The department shall include in an approved plan of operation for a municipal waste landfill a requirement that the operator use foundry sand or shredder fluff for daily cover at part or all of the municipal waste landfill for the period specified in a request from a person operating a foundry or a scrap dealer in this state if the department receives the request prior to approving the plan of operation under sub. (6) and if all of the following conditions are met:

289.30(5)(a) (a) The foundry operator or scrap dealer agrees to transport the foundry sand or shredder fluff to the landfill either daily or on another schedule acceptable to the municipal waste landfill operator.

289.30(5)(b) (b) The department approves the use of the foundry sand or shredder fluff for daily cover at the municipal waste landfill.

289.30(5)(c) (c) The municipal waste landfill operator is not contractually bound to obtain daily cover from another source.

289.30(5)(d) (d) The amount of daily cover to be provided by the requesting foundry operator or scrap dealer does not exceed the amount of daily cover required under the plan of operation for the municipal waste landfill less any daily cover provided by another foundry operator or scrap dealer.

289.30(6) (6) Approval; disapproval. The department may not approve or disapprove a plan of operation until a favorable determination of feasibility has been issued for the facility. Upon the submission of a complete plan of operation, the department shall either approve or disapprove the plan in writing within 90 days or within 60 days after a favorable determination of feasibility is issued for the facility, whichever is later. The determination of the department shall be based upon compliance with sub. (5) and the standards established under s. 289.05 (1) and (2) or, in the case of hazardous waste facilities, with the rules and standards established under ss. 291.05 (1) to (4) and (6) and 291.07 to 291.11. An approval may be conditioned upon any requirements necessary to comply with the standards. Any approval may be modified by the department upon application of the licensee if newly discovered information indicates that the modification would not inhibit compliance with the standards adopted under s. 289.05 (1) and (2) or, if applicable, ss. 291.05 (1) to (4) and (6) and 291.07 to 291.11. No plan of operation for a solid or hazardous waste facility may be approved unless the applicant submits technical and financial information required under ss. 289.05 (3) and 289.41.

289.30(7) (7) No environmental impact statement required. A determination under this section does not constitute a major state action under s. 1.11 (2).

289.30(8) (8) Approval.

289.30(8)(a) (a) Approval under sub. (6) entitles the applicant to construct the facility in accordance with the approved plan for not less than the design capacity specified in the determination of feasibility, unless the department establishes by a clear preponderance of the credible evidence that:

289.30(8)(a)1. 1. The facility is not constructed in accordance with the approved plan;

289.30(8)(a)2. 2. The facility poses a substantial hazard to public health or welfare; or

289.30(8)(a)3. 3. In-field conditions, not disclosed in the feasibility report or plan of operation, necessitate modifications of the plan to comply with standards in effect at the time of plan approval under s. 289.05 (1) and (2) or, if applicable, ss. 291.05 (1) to (4) and (6) and 291.07 to 291.11.

289.30(8)(b) (b) Paragraph (a) does not limit the department’s authority to modify a plan of operation to ensure compliance with a federal statute or regulation applicable to the solid waste disposal facility or hazardous waste facility.

289.30(9) (9) Failure to comply with plan of operation. Failure to operate in accordance with the approved plan subjects the operator to enforcement under s. 289.97 or 291.95. If the department establishes that any failure to operate in accordance with the approved plan for a solid waste disposal facility is grievous and continuous, the operator is subject to suspension, revocation or denial of the operating license under s. 289.31. If the operator fails to operate a hazardous waste facility in accordance with the approved plan, the department may suspend, revoke or deny the operating license under s. 289.31.

289.30(10) (10) Feasibility report not subject to review. In any judicial review under ss. 227.52 to 227.58 of the department’s decision to approve or disapprove a plan of operation, no element of the feasibility report, as approved by the department, is subject to judicial review.

289.30(11) (11) No right to hearing. There is no statutory right to a hearing before the department concerning the plan of operation but the department may grant a hearing on the plan of operation under s. 289.07 (1).

289.30 History History: 1995 a. 227 s. 566, 568.

289.31 289.31 Operating license.

289.31(1) (1) License requirement. No person may operate a solid waste facility or hazardous waste facility unless the person obtains an operating license from the department. The department shall issue an operating license with a duration of one year or more except that the department may issue an initial license with a duration of less than one year. The department may deny, suspend or revoke the operating license of a solid waste facility for failure to pay fees required under this chapter or for grievous and continuous failure to comply with the approved plan of operation under this chapter or, if no plan of operation exists with regard to the facility, for grievous and continuous failure to comply with the standards adopted under s. 289.05 (1) and (2). The department may deny, suspend or revoke the operating license of a hazardous waste facility for any reason specified under s. 291.87 (1m).

289.31(2) (2) Environmental impact statement not required. A determination under this section does not constitute a major state action under s. 1.11 (2).

289.31(3) (3) Issuance of initial license. The initial operating license for a solid waste disposal facility or a hazardous waste facility shall not be issued unless the facility has been constructed in substantial compliance with the operating plan approved under s. 289.30. The department may require that compliance be certified in writing by a registered professional engineer. The department may by rule require, as a condition precedent to the issuance of the operating license for a solid waste disposal facility, that the applicant submit evidence that a notation of the existence of the facility has been recorded in the office of the register of deeds in each county in which a portion of the facility is located.

289.31(4) (4) Notice; hazardous waste facilities.

289.31(4)(am) (am) Before issuing the initial operating license for a hazardous waste facility, the department shall give notice of its intent to issue the license by all of the following means:

289.31(4)(am)1. 1. Publishing a class 1 notice, under ch. 985, in a newspaper likely to give notice in the area where the facility is located.

289.31(4)(am)2. 2. Broadcasting a notice by radio announcement in the area where the facility is located.

289.31(4)(am)3. 3. Providing written notice to each affected municipality.

289.31(4)(am)4. 4. Publication of the notice on the department’s Internet website.

289.31(4)(am)5. 5. Providing notice to interested persons upon request. The notice may be given through an electronic notification system established by the department.

289.31(4)(bm) (bm) The notice provided under par. (am) 1., 3., 4., and 5. shall include all of the following:

289.31(4)(bm)1. 1. The name and address of the applicant.

289.31(4)(bm)2. 2. A summary that contains a brief, precise, easily understandable, plain language description of the subject matter of the license.

289.31(4)(bm)3. 3. Information indicating where more information about the subject matter of the license may be viewed on the department’s Internet website.

289.31(4)(cm) (cm) For the purpose of determining the date on which public notice is provided under this subsection, the date on which the department first publishes the notice on its Internet website shall be considered the date of public notice.

289.31(5) (5) Feasibility report and plan of operation not subject to review. In any judicial review under ss. 227.52 to 227.58 of the department’s decision to issue or deny an operating license, no element of either the feasibility report or the plan of operation, as approved by the department, is subject to judicial review.

289.31(6) (6) No right to hearing. There is no statutory right to a hearing before the department concerning the license but the department may grant a hearing on the license under s. 289.07 (1).

289.31(7) (7) Monitoring requirements.

289.31(7)(a) (a) In this subsection, “monitoring” means activities necessary to determine whether contaminants are present in groundwater, surface water, soil or air in concentrations that require investigation or remedial action. “Monitoring” does not include investigations to determine the extent of contamination, to collect information necessary to select or design remedial action, or to monitor the performance of remedial action.

289.31(7)(b) (b) Upon the renewal of an operating license for a nonapproved facility, the department may require monitoring at the facility as a condition of the license.

289.31(7)(c) (c) The owner or operator of a nonapproved facility is responsible for conducting any monitoring required under par. (b).