1995 Wisconsin Act 227

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227,564 Section 564 . 144.44 (2r) (title) of the statutes is repealed.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

(f) If the owner or operator of a site or facility subject to an order under subd. 3. par. (d) is a municipality, the municipality is responsible for conducting any monitoring ordered under subd. 3. par. (d). The department shall, from the environmental fund appropriation under s. 20.370 (2) (dv), reimburse the municipality for the costs of monitoring that exceed an amount equal to $3 per person residing in the municipality for each site or facility subject to an order under subd. 3. par. (d), except that the maximum reimbursement is $100,000 for each site or facility. The department shall exclude any monitoring costs paid under the municipality's liability insurance coverage in calculating the municipal cost of monitoring a site or facility.

(g) The department shall promulgate rules for determining costs eligible for reimbursement under subd. 5. par. (f).

(8) Closure agreement. Any person operating a solid or hazardous waste facility which is a nonapproved facility as defined under s. 144.442 (1) (c) may enter into a written closure agreement at any time with the department to close the facility on or before July 1, 1999. The department shall incorporate any closure agreement into the operating license. The operating license shall terminate and is not renewable if the operator fails to comply with the closure agreement. Upon termination of an operating license under this paragraph subsection as the result of failure to comply with the closure agreement, the department shall collect additional surcharges and base fees as provided under s. 144.442 (2) and (3) 289.67 (3) and (4) and enforce the closure under ss. 144.98 299.95 and 144.99 299.97.

227,570 Section 570 . 144.44 (4e) of the statutes is renumbered 289.31 (9) and amended to read:

289.31 (9) Daily cover. Within 12 months after receiving a request from a person operating a foundry or a scrap dealer in this state, the department shall modify the operating license issued under sub. (4) (a) (1) to a person operating a municipal waste landfill to require the operator to use foundry sand from the foundry or shredder fluff from the scrap dealer's operation as daily cover at part or all of the municipal waste landfill for a period specified in the request, if all of the conditions in sub. (3) (bh) s. 289.30 (5) are met.

227,571 Section 571 . 144.44 (4m) of the statutes is renumbered 289.32, and 289.32 (intro.), as renumbered, is amended to read:

289.32 (title) Distribution of documents. (intro.) One copy of the notice or documents required to be distributed under this section ss. 289.21 to 289.31 shall be mailed to:

227,572 Section 572 . 144.44 (4r) of the statutes is renumbered 289.34, and 289.34 (1) and (3), as renumbered, are amended to read:

289.34 (1) In this subsection section, “applicant" means any natural person, partnership, association or body politic or corporate that seeks to construct a solid waste disposal facility or hazardous waste facility under this section ss. 289.21 to 289.32.

(3) Paragraph (b) Subsection (2) does not apply if the person named in and subject to the plan or order provides the department with proof of financial responsibility ensuring the availability of funds to comply with the plan or order using a method under s. 144.443 289.41.

227,573 Section 573 . 144.44 (6) of the statutes is renumbered 289.47, and 289.47 (title), as renumbered, is amended to read:

289.47 (title) Closure notice.

227,574 Section 574 . 144.44 (7) (title) of the statutes is renumbered 289.43 (title).

227,575 Section 575 . 144.44 (7) (a) (intro.) of the statutes is repealed.

227,576 Section 576 . 144.44 (7) (a) 1. of the statutes is renumbered 289.01 (17).

227,577 Section 577 . 144.44 (7) (a) 2. of the statutes is renumbered 289.43 (1) and amended to read:

289.43 (1) (title) definition. “ Recycling" In this section, “recycling" means the process by which solid waste is returned to productive use as material or energy, but does not include the collection of solid waste.

227,578 Section 578 . 144.44 (7) (am), (b), (c), (d) and (e) of the statutes are renumbered 289.43 (2), (3), (4), (5) and (6), and 289.43 (2), (3) (intro.), (b) and (e) and (4) to (6), as renumbered, are amended to read:

289.43 (2) Waiver; emergency condition. The department may waive compliance with any requirement of this section ss. 289.21 to 289.32, 289.47, 289.53 or 289.95 or shorten the time periods under this section ss. 289.21 to 289.32, 289.47, 289.53 or 289.95 provided to the extent necessary to prevent an emergency condition threatening public health, safety or welfare.

(3) Waiver; research projects. (intro.) The intent of this paragraph subsection is to encourage research projects designed to demonstrate the feasibility of recycling certain solid wastes while providing adequate and reasonable safeguards for the environment. The department may waive compliance with the requirements of ss. 144.43 to 144.47 this chapter for a project developed for research purposes to evaluate the potential for the recycling of high-volume industrial waste if the following conditions are met:

(b) The department determines that the project is unlikely to violate any law relating to surface water or groundwater quality including this chapter or ch. 147 or 160 or 283.

(e) The owner or operator of the project agrees to take necessary action to maintain compliance with surface water and groundwater laws, including this chapter and chs. 147 and 160 and 283 and to take necessary action to regain compliance with these laws if a violation occurs because of the functioning or malfunctioning of the project.

(4) Exemption from licensing or regulation; development of improved methods. For the purpose of encouraging the development of improved methods of solid waste disposal, the department may specify by rule types of solid waste facilities that are not required to be licensed under this section ss. 289.21 to 289.32 or types of solid waste that need not be disposed of at a licensed solid waste disposal facility.

(5) Exemption from regulation; single-family waste disposal. The department may not regulate under this chapter chs. 281, 285 or 289 to 299 any solid waste from a single family or household disposed of on the property where it is generated.

(6) Exemption from licensing; agricultural landspreading of sludge. The department may not require a license under this section ss. 289.21 to 289.32 for agricultural land on which nonhazardous sludges from a treatment work, as defined under s. 147.015 283.01 (18), are land spread for purpose of a soil conditioner or nutrient.

227,579 Section 579. 144.44 (7) (em) of the statutes, as created by 1995 Wisconsin Act 27, is renumbered 289.43 (6m) and amended to read:

289.43 (6m) Exemption from licensing, agricultural use of wood ash. No license is required under this section ss. 289.21 to 289.32 for the agricultural use of wood ash.

227,580 Section 580 . 144.44 (7) (f), (g) and (h) of the statutes are renumbered 289.43 (7), (8) and (9), and 289.43 (7) (a) to (d) and (e) 1. and 3., (8) (b) (intro.) and 2. and (c) and (9), as renumbered, are amended to read:

289.43 (7) (a) Any person who generates, treats, stores or disposes of high-volume industrial waste may request the department to exempt an individual solid waste facility or specified types of solid waste facilities from ss. 144.43 to 144.47 this chapter for the purpose of allowing the recycling of any high-volume industrial waste.

(b) A person who requests an exemption under subd. 1. par. (a) shall provide any information requested by the department relating to the characteristics of the high-volume industrial waste, the characteristics of the site of the recycling and the proposed methods of recycling.

(c) The department shall approve the requester's exemption proposal if the department finds that the proposal, as approved, will comply with this chapter and chs. 30, 31, 147, 160 and 162 280 to 299 and ss. 1.11, 23.40, 59.971, 59.974, 60.627, 61.351, 61.354, 62.231, 62.234 and 87.30. If the proposal does not comply with one or more of the requirements specified in this subdivision paragraph, the department shall provide a written statement describing how the proposal fails to comply with those requirements. The department shall respond to an application for an exemption under this paragraph subsection within 90 days.

(d) The department may require periodic testing and may impose other conditions on any exemption granted under this paragraph subsection. The department may require a person granted an exemption under this paragraph subsection to identify the location of any site where high-volume industrial waste is recycled.

(e) 1. Each applicant for an exemption under this paragraph subsection shall submit a nonrefundable fee of $500 with the application to cover the department's cost for the initial screening of the application. The department may waive this fee if the cost of the initial screening to the department will be minimal.

3. All fees collected under this subdivision paragraph shall be credited to the appropriation under s. 20.370 (2) (dg).

(8) (b) (intro.) If the department, after a review under subd. 1. par. (a), finds that regulation under ss. 144.43 to 144.47 this chapter is not warranted in light of the potential hazard to public health or the environment, the department shall either:

2. On a case-by-case basis, exempt from regulation under ss. 144.43 to 144.47 this chapter specified types of solid waste facilities.

(c) The department may require periodic testing of solid wastes and impose other conditions on exemptions granted under subd. 2. par. (b).

(9) Exemption from regulation; animal carcasses. The department may not regulate under this chapter 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).

227,581 Section 581 . 144.44 (8) of the statutes is renumbered 289.95 and amended to read:

289.95 Enforcement procedures for older facilities. (1) Notwithstanding s. 144.47 289.97, for solid waste facilities licensed on or before January 1, 1977, that the department believes do not meet minimum standards promulgated under s. 144.435 289.05 (1) and (2), the department may do any of the following:

(a) Initiate action under s. 144.72 289.94.

(b) Refer the matter to the department of justice for enforcement under s. 144.98 299.95.

(c) Issue an order relating to the solid waste facility or refuse to relicense the solid waste facility using the procedure under par. (b) sub. (2).

(2) (a) Before issuing an order relating to a solid waste facility or a decision refusing to relicense a solid waste facility under par. (a) 3. sub. (1) (c), the department shall notify the licensee of its intended action. The licensee, within 30 days after receipt of the notice, may request a hearing under subd. 2 par. (b). If the licensee requests a hearing under subd. 2. par. (b), it may not withdraw that request and proceed under subd. 3. par. (c).

(b) If the licensee requests a hearing, the department may not issue the order or decision until a hearing, conducted as a class 2 proceeding under ch. 227, is held unless the licensee has withdrawn the hearing request. The hearing shall be held in the county where the facility is located. At the hearing the department must establish by a preponderance of all the available evidence that the facility does not adhere to the minimum standards promulgated under s. 144.435 289.05 (1) and (2). If the hearing examiner's decision is in favor of the department, or if the licensee has withdrawn the hearing request, the department may issue the order or decision. The order or decision is subject to judicial review under ch. 227.

(c) If the licensee does not request a hearing under subd. 2. par. (b), the department shall issue the order or decision. The licensee may challenge the order or decision by commencing an action in circuit court for the county in which the solid waste facility is located within 15 days after the issuance of the order or decision. The complaint shall allege that the facility adheres to the minimum standards promulgated under s. 144.435 289.05 (1) and (2). The licensee shall receive a new trial on all issues relating to the facility and relicensing of the facility. The trial shall be conducted by the court without a jury.

227,582 Section 582 . 144.44 (9) of the statutes is renumbered 289.53, and 289.53 (1) (intro.), (b) and (c) and (2) to (7), as renumbered, are amended to read:

289.53 (1) Definitions. (intro.) As used in In this subsection section: