1995 Wisconsin Act 227

289.23 (2) Local approval application prerequisite. (intro.) Except as provided under par. (c), no No person subject to s. 144.445 289.33 may submit a feasibility report until the latest of the following periods:

(a) At least 120 days after the person submits applications for all applicable local approvals specified as required by the municipality under sub. (1m) (b) s. 289.22 (1m).

(c) At least 120 days after the deadline for the municipal response under sub. (1m) (b) s. 289.22 (1m) if the municipality does not respond within that time limit.

227,548 Section 548 . 144.44 (2) (c) of the statutes is repealed.

Note: Section 144.44 (2) (c) currently reads as follows:

“144.44 (2) (c) No prerequisite for certain mining facilities. An operator engaged in mining, as defined under s. 144.81 (5), on May 21, 1978, may, but is not required to, submit a feasibility report for any solid waste disposal facility for waste resulting from those mining operations."

At the time this statute was enacted, there were existing mining facilities that had been in operation prior to May 21, 1978. All of these mines have now been closed, so this provision is no longer necessary.

227,549 Section 549. 144.44 (2) (d) and (e) of the statutes are renumbered 289.23 (3) and (5) and amended to read:

289.23 (3) Compliance required . No person may construct a solid waste disposal facility or a hazardous waste facility unless the person complies with the requirements of this subsection ss. 289.23 to 289.29.

(5) Notification of proposed facility. Immediately upon receipt of a feasibility report the department shall send a notice to the persons specified under sub. (4m) s. 289.32 containing a brief description of the proposed facility and a statement that the applicant is required to send a copy of the feasibility report after it is determined to be complete by the department.

227,550 Section 550 . 144.44 (2) (f), (fm) and (g) of the statutes are renumbered 289.24 (1), (2) and (3), and 289.24 (1) (intro.), (c) and (f) and (2) (intro.), as renumbered, are amended to read:

289.24 (1) Contents of feasibility reports; preparation. (intro.) The department shall specify by rule the minimum contents of a feasibility report and no report is complete unless the specified information is provided by the applicant. In addition to the requirements specified under par. (fm) sub. (2), the rules may specify special requirements for a feasibility report relating to any hazardous waste facility. The department may require a feasibility report to be prepared by a registered professional engineer. A feasibility report shall include:

(c) A description of how the proposed facility relates to any applicable county solid waste management plan approved under s. 144.437 289.10.

(f) Sufficient information to make the determination of need for the facility under this subsection s. 289.28 unless the facility is exempt under par. (nr) s. 289.28 (2).

(2) Certain hazardous waste facilities; additional requirements. (intro.) A feasibility report for a hazardous waste disposal facility or surface impoundment, as defined in s. 291.37 (1) (d), shall include a list of all persons living within 0.5 mile of the facility and information reasonably ascertainable by the applicant on the potential for public exposure to hazardous waste or hazardous constituents through releases from the facility including, but not limited to, the following:

227,551 Section 551 . 144.44 (2) (h) of the statutes is renumbered 289.23 (4) and amended to read:

289.23 (4) Distribution of feasibility report. At the same time an applicant submits a feasibility report to the department, the applicant shall submit a copy of that feasibility report to each participating municipality under s. 144.445 289.33 (6) (b). Immediately after the applicant receives notification of the department's determination that the feasibility report is complete, the applicant shall distribute copies of the feasibility report to the persons specified under sub. (4m).

Note: The remainder of current s. 144.44 (2) (h) is located in new s. 289.24 (4).

227,552 Section 552 . 144.44 (2) (i), (j) and (k) of the statutes are renumbered 289.25 (1), (2) and (3), and 289.25 (2) and (3), as renumbered, are amended to read:

289.25 (2) Environmental impact statement process. If an environmental impact statement is required, the department shall conduct the hearing required under s. 1.11 (2) (d) in an appropriate place it designates in a county, city, village or town which would be substantially affected by the operation of the proposed facility. The hearing on the environmental impact statement is not a contested case. The department shall issue its determination of the adequacy of the environmental impact statement within 30 days after the close of the hearing. Except as provided under s. 144.836 293.43, the department shall complete any environmental impact statement process required under s. 1.11 before proceeding with the feasibility report review process under par. (k) sub. (3) and subs. (2g) and (2r) ss. 289.26 and 289.27.

(3) Notification on feasibility report and preliminary environmental impact statement decisions. Immediately after the department issues a preliminary determination that an environmental impact statement is not required or, if it is required, immediately after the department issues the environmental impact statement, the department shall publish a class 1 notice under ch. 985 in the official newspaper designated under s. 985.04 or 985.05 or, if none exists, in a newspaper likely to give notice in the area of the proposed facility. The notice shall include a statement that the feasibility report and the environmental impact statement process are complete. The notice shall invite the submission of written comments by any person within 30 days after the notice for a solid waste disposal facility or within 45 days after the notice for a hazardous waste facility is published. The notice shall describe the methods by which a hearing may be requested under pars. (L) and (m) ss. 289.26 (1) and 289.27 (1). The department shall distribute copies of the notice to the persons specified under sub. (4m) s. 289.32.

227,553 Section 553 . 144.44 (2) (L) of the statutes is renumbered 289.26 (1) and amended to read:

289.26 (1) Request for an informational hearing. Within 30 days after the notice under par. (k) s. 289.25 (3) is published for a solid waste disposal facility, or within 45 days after the notice under par. (k) 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 for an informational hearing on the matter with the department. The request shall indicate the interests of the municipality or persons who file the request and state the reasons why the hearing is requested.

227,554 Section 554 . 144.44 (2) (m) of the statutes is renumbered 289.27 (1), and 289.27 (1) (intro.), as renumbered, is amended to read:

289.27 (1) Request for treatment as a contested case. (intro.) Within 30 days after the notice under par. (k) s. 289.25 (3) is published for a solid waste disposal facility, or within 45 days after the notice under par. (k) 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 par. (L) 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:

227,555 Section 555 . 144.44 (2) (n) of the statutes is renumbered 289.29 (1), and 289.29 (1) (a) and (c), as renumbered, are amended to read:

289.29 (1) (a) A determination of feasibility shall be based only on ss. 144.43 to 144.47 this chapter and 144.60 to 144.74 ch. 291 and rules promulgated under those sections chapters. A determination of feasibility for a facility for the disposal of metallic mining waste shall be based only on ss. 144.43 to 144.47 this chapter and 144.60 to 144.74 ch. 291 and rules promulgated under those sections chapters with special consideration given to s. 144.435 289.05 (2) and rules promulgated under that section.

(c) The department may receive into evidence at a hearing conducted under sub. (2g) or (2r) 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.

227,556 Section 556 . 144.44 (2) (nm) of the statutes is renumbered 289.28 (1), and 289.28 (1) (intro.), (c) 1. and 2. and (d), as renumbered, are amended to read:

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

(c) 1. Approved facilities, as defined under s. 144.441 (1) (a), including the potential for expansion of those facilities on contiguous property already owned or controlled by the applicant.

2. Nonapproved facilities, as defined under s. 144.442 (1) (c), which are environmentally sound. It is presumed that a nonapproved facility is not environmentally sound unless evidence to the contrary is produced.

(d) If the need for a proposed municipal facility cannot be established under subds. 1. to 3. 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.

227,557 Section 557 . 144.44 (2) (nr) of the statutes is renumbered 289.28 (2), and 289.28 (2) (intro.) and (a), as renumbered, are amended to read:

289.28 (2) Determination of need; exempt facilities. (intro.) Paragraphs (f) 6., (n) 4., (nm) and (om) Subsections (1) and (3) and ss. 289.24 (1) (f) and 289.29 (1) (d) do not apply to:

(a) Any facility which is part of a prospecting or mining operation with a permit under s. 144.84 293.45 or 144.85 293.49.

227,558 Section 558 . 144.44 (2) (nu) of the statutes is renumbered 289.29 (2) and amended to read:

289.29 (2) Maximum number of facilities. (a) Except as provided in subd. 2. 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.

(b) The prohibition in subd. 1. 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.

227,559 Section 559 . 144.44 (2) (o) of the statutes is renumbered 289.29 (3) and amended to read:

289.29 (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 sub. (3) 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 sub. (3) s. 289.30 or licensure under sub. (4) s. 289.31.

227,560 Section 560 . 144.44 (2) (om) of the statutes is renumbered 289.28 (3) and amended to read:

289.28 (3) Issuance of determination of need. Except for a facility which is exempt under par. (nr) 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.

227,561 Section 561 . 144.44 (2) (p) and (q) of the statutes are renumbered 289.29 (4) and (5) and amended to read:

289.29 (4) Issuance of final determination of feasibility. Except as provided under par. (q) sub. (5), if no hearing is conducted under sub. (2g) or (2r) 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 par. (m) s. 289.27 (1) has expired.

(5) Issuance of final determination of feasibility in certain situations involving utilities and mining. If a determination of feasibility is required under s. 196.491 (2m), the issuance of a final determination of feasibility is subject to the time limits under s. 196.491 (3) (f) and (ff). If a determination of feasibility is required under s. 144.836 293.43, the issuance of a final determination of feasibility is subject to the time limits under s. 144.84 (3) 293.45 (2) or 144.85 (5) 293.49, whichever is applicable.

227,562 Section 562 . 144.44 (2g) (title) of the statutes is repealed.

227,563 Section 563 . 144.44 (2g) (a), (b), (c) and (e) of the statutes are renumbered 289.26 (2), (3), (4) and (5) and amended to read:

289.26 (2) Applicability. This subsection section applies if no request for the treatment of the hearing as a contested case is granted and if:

(a) An informational hearing is requested under sub. (2) (L) (1) within the 30-day or 45-day period; or

(b) No hearing is requested under sub. (2) (L) (1) within the 30-day or 45-day period but the department determines that there is substantial public interest in holding a hearing.

(3) Nonapplicability; hearing conducted as a part of certain mining hearings. Notwithstanding par. (a) sub. (2) this subsection section does not apply if a hearing on the feasibility report is conducted as a part of a hearing under s. 144.836 293.43 and the time limits, notice and hearing provisions in that section supersede the time limits, notice and hearing provisions under sub. (2) (j) to (m) s. 289.25 (2) and (3) and this subsection section.

(4) Informational hearing. The department shall conduct the informational hearing within 60 days after the expiration of the 30-day or 45-day period under sub. (2) (L) (1). The department shall conduct the informational hearing in an appropriate place designated by the department in a county, city, village or town which would be substantially affected by the operation of the proposed facility.

(5) Issuance of final determination of feasibility. Except as provided under sub. (2) (q) s. 289.29 (5), the department shall issue a final determination of feasibility within 60 days after the informational hearing under this subsection section is adjourned.

227,564 Section 564 . 144.44 (2r) (title) of the statutes is repealed.

227,565 Section 565 . 144.44 (2r) (a), (b), (d) and (e) of the statutes are renumbered 289.27 (2), (3), (4) and (5), and 289.27 (2), (3), (4) (intro.) and (a) and (5), as renumbered, are amended to read:

289.27 (2) Applicability. This subsection section applies only if a person requests the treatment of the hearing as a contested case under sub. (2) (m) (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. (2) (m) (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.

(3) Nonapplicability. Notwithstanding par. (a) sub. (2), this section does not apply if a hearing on the feasibility report is conducted as a part of a hearing under s. 144.836 293.43 and the time limits, notice and hearing provisions under that section supersede the time limits, notice and hearing provisions under sub. (2) (j) to (m) s. 289.25 (2) and (3) and this subsection section.

(4) Time limits. (intro.) Except as provided under sub. (2) (q) s. 289.29 (5):

(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. (2) (m) (1).

(5) Determination of need; decision by hearing examiner. If a contested case hearing is conducted under this subsection 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 employe of the department.

227,566 Section 566 . 144.44 (3) (title), (a), (ag) and (am) of the statutes are renumbered 289.30 (title), (1), (2) and (3), and 289.30 (2) and (3), as renumbered, are amended to read:

289.30 (2) Feasibility report prerequisite. Except as provided under par. (ar), no 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 sub. (2), (2g) or (2r) 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 sub. (2), (2g) or (2r) s. 289.26 or 289.27.

(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 pars. (ag), (f) and (g) subs. (2), (10) and (11), both the feasibility report and the plan of operation shall be considered at a public hearing conducted under subs. (2), (2g) and (2r) ss. 289.26 and 289.27, and both are subject to judicial review in a single proceeding.

227,567 Section 567 . 144.44 (3) (ar) of the statutes is repealed.

Note: Section 144.44 (3) (ar) currently reads as follows:

“144.44 (3) (ar) Feasibility report prerequisite; exception. The owner or operator of a licensed solid waste disposal facility in existence on May 21, 1978, may, but is not required to, submit a plan of operation for that facility and seek approval under this subsection. An operator engaged in mining, as defined under s. 144.81 (5), on May 21, 1978, may, but is not required to, submit a plan of operation for any solid waste disposal facility for waste resulting from those mining operations and seek approval for that plan of operation under this subsection."

At the time this statute was enacted, there were existing mining facilities that had been in operation prior to May 21, 1978. All of these mines have now been closed, so this provision is no longer necessary.

227,568 Section 568 . 144.44 (3) (b), (bh), (c), (cm), (d), (e), (f) and (g) of the statutes are renumbered 289.30 (4), (5), (6), (7), (8), (9), (10) and (11), and 289.30 (4), (5) (intro.), (6), (7), (8) (a) (intro.) and 3. and (b), (9) and (11), as renumbered, are amended to read:

289.30 (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. 144.443 289.41. The department shall specify by rule the minimum contents of a plan of operation submitted for approval under this subsection 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 par. (ag) 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.

(5) Daily cover. (intro.) 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 par. (c) sub. (6) and if all of the following conditions are met:

(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 par. (bh) sub. (5) and the standards established under s. 144.435 289.05 (1) and (2) or, in the case of hazardous waste facilities, with the rules and standards established under s. 144.62 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. 144.435 289.05 (1) and (2) or, if applicable, s. 144.62 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. 144.441 289.05 (3) and 144.443 289.41.

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

(8) (a) (intro.) Approval under par. (c) 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:

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. 144.435 289.05 (1) and (2) or, if applicable, s. 144.62 ss. 291.05 (1) to (4) and (6) and 291.07 to 291.11.

(b) Subdivision 1. 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.

(9) Failure to comply with plan of operation. Failure to operate in accordance with the approved plan subjects the operator to enforcement under s. 144.47 289.97 or 144.73 291.95. 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 sub. (4) 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 sub. (4) s. 289.31.

(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. 144.431 (2) (a) 289.07 (1).

227,569 Section 569 . 144.44 (4) of the statutes is renumbered 289.31, and 289.31 (1) to (3) and (6) to (8), as renumbered, are amended to read:

289.31 (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 disposal facility for failure to pay fees required under ss. 144.43 to 144.47 this chapter or for grievous and continuous failure to comply with the approved plan of operation under sub. (3) s. 289.30 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. 144.435 289.05 (1) and (2). The department may deny, suspend or revoke the operating license of a hazardous waste facility for any reason specified under s. 144.64 (2) (e). If the license application is for a solid waste disposal facility for solid waste resulting from mining operations in existence on May 21, 1978, the department shall make any determination with respect to whether disposal is being undertaken in an environmentally sound manner and shall administer compliance with the licensing requirement of this subsection in a manner which, with respect to nonhazardous solid waste, does not require substantial structural modification of the existing facility, expenditure which is not appropriate for the nonhazardous nature of the waste or interruption of the mining operation 291.87 (1m).

Note: At the time this statute was enacted, there were existing mining facilities that had been in operation prior to May 21, 1978. All of these mines have now been closed, so the last sentence of s. 144.44 (4) (a) is no longer necessary.

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

(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 sub. (3) 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.

(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. 144.431 (2) (a) 289.07 (1).

(7) Monitoring requirements. (a) In this paragraph 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.

(b) Upon the renewal of an operating license for a nonapproved facility, as defined under s. 144.441 (1) (c), the department may require monitoring at the facility as a condition of the license.

(c) The owner or operator of a nonapproved facility, as defined under s. 144.441 (1) (c), is responsible for conducting any monitoring required under subd. 1m. par. (b).

(d) The department may require by special order the monitoring of a closed solid or hazardous waste disposal site or facility which was either a nonapproved facility, as defined under s. 144.441 (1) (c), or a waste site, as defined under s. 144.442 (1) (e) 292.01 (21), when it was in operation.

(e) If the owner or operator of a site or facility subject to an order under subd. 3. par. (d) is not a municipality, the owner or operator is responsible for the cost of conducting any monitoring ordered under subd. 3. par. (d).