(f) Notice; hearing. The department shall publish a class 1 notice, under ch. 985, prior to taking remedial action under this subsection and subs. (4) (1) and (8) (7), which describes the proposed remedial action and the amount and purpose of any proposed expenditure. Except as provided under par. (d), the department shall provide a hearing to any person who demands a hearing within 30 days after the notice is published for the purpose of determining whether the proposed remedial action and any expenditure is within the scope of this section and is reasonable in relation to the cost of obtaining similar materials and services. The department is not required to conduct more than one hearing for the remedial action proposed at a single site or facility. Notwithstanding s. 227.42, the hearing shall not be conducted as a contested case. The decision of the department to take remedial action under this section is a final decision of the agency subject to judicial review under ch. 227.
227,608 Section 608. 144.442 (6m), (6r) and (7) of the statutes are renumbered 292.31 (4), (5) and (6) and amended to read:
292.31 (4) Monitoring costs at nonapproved facilities owned or operated by municipalities. Notwithstanding the inventory, analysis and hazard ranking under sub. (4) (1), the environmental response plan prepared under sub. (5) (2) or the environmental repair authority, remedial action sequence and emergency response requirements under sub. (6) (3), the department shall pay that portion of the cost of any monitoring requirement which is to be paid under s. 144.44 (4) (f) 5. 289.31 (7) (f) from the appropriation under s. 20.370 (2) (dv) prior to making other payments from that appropriation.
(5) Municipal incinerator ash testing. Notwithstanding the inventory, analysis and hazard ranking under sub. (4) (1), the environmental response plan prepared under sub. (5) (2), the environmental repair authority, remedial action sequence and emergency response requirements under sub. (6) (3), or the monitoring costs under sub. (6m) (4), the department shall pay the cost incurred by a municipality after June 30, 1986, and before January 30, 1988, for testing required to determine whether the ash from a municipally owned incinerator is hazardous. The department shall make payments under this subsection from the appropriation under s. 20.370 (2) (dv) prior to making other payments from that appropriation.
(6) Payments from the investment and local impact fund. The department may expend moneys received from the investment and local impact fund for the purposes specified under sub. (6) (3) only for approved mining facilities and only if moneys in the environmental fund that are available for environmental repair are insufficient to make complete payments. The amount expended by the department under this subsection may not exceed the balance in the environmental fund that is available for environmental repair at the beginning of that fiscal year or 50% of the balance in the investment and local impact fund at the beginning of that fiscal year, whichever amount is greater.
227,609 Section 609. 144.442 (8) of the statutes is renumbered 292.31 (7), and 292.31 (7) (a), as renumbered, is amended to read:
292.31 (7) (a) The department may advise, consult, assist and contract with other interested persons to take action to implement the federal comprehensive environmental response, compensation and liability act of 1980, 42 USC 9601, et seq., in cooperation with the federal environmental protection agency. These actions include all of the actions under subs. (4) (1) to (6) (3). The department may enter into agreements with the federal environmental protection agency.
227,610 Section 610. 144.442 (9) of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 292.31 (8), and 292.31 (8) (b) 1., (d), (h) and (i), as renumbered, are amended to read:
292.31 (8) (b) 1. This subsection does not apply to the release or discharge of a substance which is in compliance with a permit, license, approval, special order, waiver or variance issued under this chapter or ch. 30, 31 or 147 283, or under corresponding federal statutes or regulations.
(d) Right of action. A right of action shall accrue to the state against any person responsible under par. (c) if an expenditure is made for environmental repair at the site or facility or if an expenditure is made under sub. (8) (7).
(h) Cleanup agreements; waiver of cost recovery. The department and any person who is responsible under par. (c) may enter into an agreement regarding actions which the department is authorized to take under sub. (6) (3). In the agreement, the department may specify those actions under sub. (6) (3) which the responsible person may take. As part of the agreement, the department may agree to reduce the amount which the state is entitled to recover under this subsection or to waive part or all of the liability which the responsible person may have under this subsection.
(i) Lien. Any expenditures made by the department under sub. (4), (6) (1), (3) or (8) (7) shall constitute a lien upon the property for which the expenses are incurred, as provided in s. 144.76 (13) 292.81.
227,611 Section 611. 144.442 (9m) of the statutes is renumbered 292.61, and 292.61 (1) (intro.), (3) (b) 4. and (5), as renumbered, are amended to read:
292.61 (1) Definitions. (intro.) In this subsection section:
(3) (b) 4. A statement of whether the political subdivision intends to use the cost recovery procedure in s. 144.4422 292.35. If the political subdivision indicates in its application that it intends to use the cost recovery procedure in s. 144.4422 292.35, the department may not approve the application for a remedial action grant until the political subdivision completes the procedures under s. 144.4422 292.35 (2g) and (2r).
(5) Subrogation. The state is subrogated to the rights of a political subdivision that obtains an award under this section in an amount equal to the award. All moneys recovered under this paragraph subsection shall be credited to the environmental fund for environmental repair.
227,612 Section 612. 144.442 (10) and (11) of the statutes are renumbered 292.31 (9) and (10), and 292.31 (10) (b), as renumbered, is amended to read:
292.31 (10) (b) If a person takes any remedial action at a site or facility, whether or not an agreement is entered into with the department under sub. (9) (8) (h), any agreement and the action taken are not evidence of liability or an admission of liability for any potential or actual environmental pollution.
Note: Section 144.442 (10) and (11) both contain references to "this section". Current s. 144.442 contains provisions related to environmental repair fees and remedial action. It is apparent that s. 144.442 (10) and (11) refer only to the remedial action provisions of the statute. Therefore, s. 144.442 (10) and (11) are renumbered to ch. 292, and are not duplicated in s. 289.67, which establishes the environmental repair fees.
227,613 Section 613. 144.4422 (title) and (1) (intro.) of the statutes are renumbered 292.35 (title) and (1) (intro.).
227,614 Section 614. 144.4422 (1) (a) of the statutes is repealed.
227,615 Section 615. 144.4422 (1) (b), (c), (d), (e), (f) and (g) of the statutes are renumbered 292.35 (1) (b), (c), (d), (e), (f) and (g), and 292.35 (1) (f), as renumbered, is amended to read:
292.35 (1) (f) "Site or facility" has the meaning given in s. 144.442 (9m) (a) 2. 292.61 (1) (b).
227,616 Section 616. 144.4422 (2), (2g), (2r), (3), (4), (5), (6), (7), (8), (9), (10), (11) and (13) of the statutes are renumbered 292.35 (2), (2g), (2r), (3), (4), (5), (6), (7), (8), (9), (10), (11) and (13), and 292.35 (2g) (b) 3., (7) and (9) (b) and (bm), as renumbered, are amended to read:
292.35 (2g) (b) 3. The identity of subsidiary or parent corporations, as defined in s. 144.442 (9) 292.31 (8) (a) 3., of any person who may be a responsible party.
(7) Responsible parties subject to an agreement or recommendation. A responsible party that enters into an agreement under sub. (5) with a political subdivision or that accepts the umpire's recommendation under sub. (6), if the political subdivision does not reject the recommendation, is required to comply with the agreement or recommendation. When the responsible party has complied with the agreement or recommendation, the responsible party is not liable to the state, including under s. 144.442 (9) or 144.76 292.11 (7) (b) or 292.31 (8), or to the political subdivision for any additional costs of the investigation or remedial action; the responsible party is not liable to any other responsible party for contribution to costs incurred by any other responsible party for the investigation or remedial action; and the responsible party is not subject to an order under s. 144.76 292.11 (7) (c) for the discharge that is the subject of the agreement or recommendation.
(9) (b) 1. Except as provided in pars. (bm), (br) and (e), sub. (7) and s. 144.76 (9m) and (9s) 292.21, a responsible party is liable for a portion of the costs, as determined under pars. (c) to (e), incurred by a political subdivision for remedial action in an agreement under sub. (5) or a recommendation under sub. (6) and for any related investigation. A right of action shall accrue to a political subdivision against the responsible party for costs listed in this subdivision.
2. Except as provided in pars. (bm), (br) and (e), sub. (7) and s. 144.76 (9m) and (9s) 292.21, a responsible party is liable for a portion of any unreimbursed costs, as determined under pars. (c) to (e), incurred by this state in approving and supervising a remedial action funded under s. 144.442 (9m) (c) 292.61 (3) and for the costs of a grant under s. 144.442 (9m) (c) 292.61 (3). A right of action shall accrue to this state against the responsible party for costs listed in this subdivision.
(bm) Paragraph (b) does not apply with respect to a discharge if the discharge was in compliance with a permit license, approval, special order, waiver or variance issued under ss. 144.30 to 144.426 or ch. 147 283 or 285 or under corresponding federal statutes or regulations.
227,617 Section 617. 144.443 (title) and (1) (intro.) of the statutes are renumbered 289.41 (title) and (1) (intro.).
227,618 Section 618. 144.443 (1) (a) of the statutes is repealed.
227,619 Section 619. 144.443 (1) (am) of the statutes is renumbered 289.41 (1) (am).
227,620 Section 620. 144.443 (1) (b) of the statutes, as affected by 1995 Wisconsin Act 63, is renumbered 289.41 (1) (b), and 289.41 (1) (b) 1. and 2., as renumbered, are amended to read:
289.41 (1) (b) 1. Any business operated for profit and any public utility which is applying for or holds a license for the operation of a solid or hazardous waste disposal facility under s. 144.44 (4) 289.31 or 144.64 (2) 291.25 directly or through a subsidiary, affiliate, contractor or other entity if the business or public utility guarantees compliance with any closure and long-term care responsibilities of the subsidiary, affiliate, contractor or other entity.
2. Any business operated for profit and any public utility that is required to perform corrective action under s. 144.735 291.37.
227,621 Section 621. 144.443 (1) (c) to (f) of the statutes are renumbered 289.41 (1) (c) to (f).
227,622 Section 622. 144.443 (2) and (3) of the statutes are renumbered 289.41 (2) and (3), and 289.41 (2) (a), (c) and (d) and (3) (a) 5. and 6., as renumbered, are amended to read:
289.41 (2) (a) Disposal facilities. The owner or operator of a solid or hazardous waste disposal facility shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the closure and long-term care requirements specified in any rule, order, plan of operation or other plan approval during the period specified in s. 144.441 (2) sub. (1m) (b) or under s. 144.441 (2) sub. (1m) (f).
(c) Hazardous waste disposal, storage and treatment facilities. If corrective action is required under s. 144.735 291.37, the owner or operator of the hazardous waste facility to which the requirement applies shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the corrective action requirement.
(d) Unlicensed hazardous waste facilities. The owner or operator of an unlicensed hazardous waste facility subject to s. 144.64 (2m) 291.29 shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the approved closure plan and, if applicable, the long-term care plan.
(3) (a) 5. A financial commitment satisfactory to the department to ensure that the owner or operator will comply with the closure and any long-term care requirements specified in the plan of operation or the approved plan under s. 144.64 (2m) 291.29. The department shall consider the request of any owner or operator to establish proof of financial responsibility under this subdivision.
6. If corrective action is required under s. 144.735 291.37, a financial commitment satisfactory to the department to ensure that the owner or operator will comply with the requirement. The department shall consider the request of any owner or operator to establish proof of financial responsibility under this subdivision.
227,623 Section 623. 144.443 (4) of the statutes, as affected by 1995 Wisconsin Act 63, is renumbered 289.41 (4), and 289.41 (4) (b), as renumbered, is amended to read:
289.41 (4) (b) Application. A company which seeks to establish proof of financial responsibility utilizing the net worth method shall submit an application to the department as a part of the initial license application, written submissions required under s. 144.735 291.37 or annual review procedure which includes a copy of the most recent annual audited financial statements which were distributed to owners, stockholders or other persons with a financial interest in the company and the opinion of an independent certified public accountant.
227,624 Section 624. 144.443 (5) to (12) of the statutes are renumbered 289.41 (5) to (12), and 289.41 (6) (b), (9) (b) and (11) (a) (intro.) and 4., (am) (intro.) and 4. and (b) to (cm), as renumbered, are amended to read:
289.41 (6) (b) Net worth to closure, long-term care and corrective action cost ratio. The net worth of the company at the end of its most recently completed fiscal year equals or exceeds 6 times the estimated total cost of compliance with the closure and any long-term care requirements specified in the plan of operation or the approved plan under s. 144.64 (2m) 291.29 plus the costs of any corrective action required under s. 144.735 291.37.
(9) (b) Inability to meet closure and long-term care or corrective action costs. If a public utility which utilizes the risk pool arrangement does not comply with the closure and long-term care requirements specified in any plan of operation or approved plan under s. 144.64 (2m) 291.29 or with any corrective action required under s. 144.735 291.37 and if the department or the department of justice is unable to obtain compliance with these requirements after appropriate legal action because of bankruptcy, insolvency or the financial inability of the utility to comply with these requirements, then the department is authorized to enter an assessment order.
(11) (a) Failure to comply with closure and long-term care requirements. (intro.) If the owner or operator of the facility fails to comply with the closure and any long-term care requirements in any plan of operation or approved plan under s. 144.64 (2m) 291.29:
4. The department may request the department of justice to initiate court action against the owner or operator to recover moneys sufficient to pay the cost of complying with the closure and long-term care requirements of the plan of operation or approved plan under s. 144.64 (2m) 291.29. Any moneys recovered in this type of action or as a settlement in anticipation of this type of action shall be credited to the waste management fund.
(am) Failure to comply with corrective action requirements. (intro.) If the owner or operator of the facility fails to comply with any corrective action requirements under s. 144.735 291.37:
4. The department may request the department of justice to initiate court action against the owner or operator to recover moneys sufficient to pay the cost of complying with a corrective action required under s. 144.735 291.37. Any moneys recovered in this type of action or as a settlement in anticipation of this type of action shall be credited to the waste management fund.
(b) Compliance with closure and long-term care requirements. 1. If the owner or operator of a waste facility fails to comply with the closure and any long-term care requirements in any plan of operation or approved plan under s. 144.64 (2m) 291.29, the department may take action or contract with a person to take action to comply with these requirements from moneys obtained for that purpose under par. (a).
2. If the owner or operator of an approved facility for which the plan of operation was approved under s. 144.44 (3) (c) 289.30 (6) before August 9, 1989, fails to comply with long-term care requirements in the plan of operation after the requirement to provide proof of financial responsibility expires under s. 144.441 (2) sub. (1m) (b) or (f) and if the department takes reasonable administrative and legal action to require compliance or to obtain moneys under par. (a) 4., then the department may take action or contract with a person to take action to comply with the requirements even though no moneys have been obtained under par. (a).
(bm) Compliance with corrective action requirements. If the owner or operator of a waste facility fails to comply with any corrective action required under s. 144.735 291.37, the department may take action or contract with a person to take action to comply with a corrective action required under s. 144.735 291.37 from moneys obtained for that purpose under par. (am).
(c) Prevention of imminent hazard; closure and long-term care. If the owner or operator of an approved facility for which the plan of operation was approved under s. 144.44 (3) (c) 289.30 (6) before August 9, 1989, fails to comply with the closure and any long-term care requirements in any plan of operation during the period for which the owner or operator is required to provide proof of financial responsibility, if the department determines that the failure to comply with these requirements presents an imminent or substantial danger to the health or environment and if the department takes reasonable administrative and legal action to require compliance or to obtain moneys under par. (a), then the department may take action or contract with a person to take action to comply with these requirements even though no moneys have been obtained under par. (a).
(cm) Prevention of imminent hazard; corrective action. If the owner or operator of an approved facility for which the plan of operation was approved under s. 144.44 (3) (c) 289.30 (6) before August 9, 1989, fails to comply with any corrective action required under s. 144.735 291.37, if the department determines that the failure to comply with a corrective action requirement presents an imminent or substantial danger to the health or environment and if the department takes reasonable administrative and legal action to require compliance or to obtain moneys under par. (am), then the department may take action or contract with a person to take action to comply with a corrective action required under s. 144.735 291.37 even though no moneys have been obtained under par. (am).
227,625 Section 625. 144.444 of the statutes is renumbered 289.46, and 289.46 (1), as renumbered, is amended to read:
289.46 (1) Any person acquiring rights of ownership, possession or operation in a licensed solid or hazardous waste facility at any time after the facility begins to accept waste is subject to all requirements of the license approved for the facility including any requirements relating to long-term care of the facility and is subject to any negotiated agreement or arbitration award related to the facility under s. 144.445 289.33. Upon acquisition of the rights, the department shall issue a new operating license if the previous licensee is no longer connected with the operation of the facility, if the new licensee meets all requirements specified in the previous license, the approved plan of operation, if any, and the rules promulgated under s. 144.62 291.05 or 291.07, if applicable.
227,626 Section 626. 144.445 of the statutes is renumbered 289.33, and 289.33 (3) (d) and (fm), (6) (a) to (c), (7n) (a) and (12) (a) 2., (b) 2., (c) 1. c. and (d), as renumbered, are amended to read:
289.33 (3) (d) "Local approval" includes any requirement for a permit, license, authorization, approval, variance or exception or any restriction, condition of approval or other restriction, regulation, requirement or prohibition imposed by a charter ordinance, general ordinance, zoning ordinance, resolution or regulation by a town, city, village, county or special purpose district, including without limitation because of enumeration any ordinance, resolution or regulation adopted under s. 59.065, 59.07, 59.083, 59.97, 59.971, 59.974, 60.10, 60.22, 60.23, 60.54, 60.77, 61.34, 61.35, 61.351, 61.354, 62.11, 62.23, 62.231, 62.234, 66.01, 66.052, 66.24 (8), 87.30, 91.73, 144.07, 196.58, 236.45, 281.43 or 349.16 or subch. VIII of ch. 60.
(fm) "Preexisting local approval" means a local approval in effect at least 15 months prior to the submission to the department of either a feasibility report under s. 144.44 (2) 289.23 or an initial site report, whichever occurs first.
(6) (a) Municipal participation. An affected municipality may participate in the negotiation and arbitration process under this section if the governing body adopts a siting resolution and appoints members to the local committee within 60 days after the municipality receives the written request from the applicant under s. 144.44 (1m) (b) 289.22 (1m) and if the municipality sends a copy of that resolution and the names of those members to the board within 7 days after the municipality adopts the siting resolution and appoints members to the local committee. The siting resolution shall state the affected municipality's intent to negotiate and, if necessary, arbitrate with the applicant concerning the proposed facility. An affected municipality which does not adopt a siting resolution within 60 days after receipt of notice from the applicant may not appoint members to the local committee.
(b) Notification of participation. Within 5 days after the board receives copies of resolutions and names of members appointed to the local committee from all affected municipalities or within 72 days after all affected municipalities receive the written request under s. 144.44 (1m) (b) 289.22 (1m), the board shall submit a notification of participation by certified mail to the applicant and each participating municipality identifying the participating municipalities and the members appointed to the local committee and informing the applicant and participating municipalities that negotiations may commence or, if no affected municipality takes the actions required to participate in the negotiation and arbitration process under par. (a), the board shall notify the applicant of this fact by certified mail within that 72-day period.
(c) Revised notification of participation. If the board issues a notice under par. (b) and subsequently it is necessary for the applicant to submit a written request under s. 144.44 (1m) (b) 289.22 (1m) to an additional affected municipality because of an error or changes in plans, the board may issue an order delaying negotiations until that affected municipality has an opportunity to participate in the negotiation and arbitration process by taking action under par. (a). Within 5 days after the board receives a copy of the resolution and the names of members appointed to the local committee by that affected municipality or within 72 days after that affected municipality receives the written request from the applicant under s. 144.44 (1m) (b) 289.22 (1m), the board shall submit a revised notification of participation by certified mail to the applicant and each participating municipality stating the participating municipalities and members appointed to the local committee and informing the applicant and participating municipalities that negotiations may recommence or if the additional affected municipality does not take the actions required to participate in the negotiation and arbitration process under par. (a), the board shall notify the applicant and other participating municipalities of this fact by certified mail and informing them that negotiations may recommence.
(7n) (a) Agreement to add. Upon the written agreement of all parties to a negotiation and arbitration proceeding commenced under this section, a municipality which does not qualify as an affected municipality under s. 144.43 (1) may be added as a party to the proceeding.
(12) (a) 2. This section does not apply to modifications to a solid waste disposal facility which do not constitute an expansion of the facility or to a solid waste disposal facility which is exempt from the requirement of a feasibility report under ss. 144.43 to 144.47 this chapter or by rule promulgated by the department.
(b) 2. Except as provided under subd. 1. and par. (c), only subs. (3) and (5) (a) and (b) apply to a hazardous waste facility which is in existence on May 7, 1982, which has a license, an interim license or a variance under s. 144.64 291.25 or 291.31 or the resource conservation and recovery act and which complies with all local approvals applicable to the facility on May 7, 1982.
(c) 1. c. At any time after the date specified in the feasibility report, if such a date has been specified under s. 144.44 (2) (f) 289.24 (1), as the proposed date of closure of a solid or hazardous waste disposal facility and if the facility is not closed on or before that date.
(d) Nonapplicability to mining waste facilities. This section does not apply to any waste facility which is part of a prospecting or mining operation with a permit under s. 144.84 293.45 or 144.85 293.49.
227,627 Section 627. 144.446 of the statutes is renumbered 289.12, and 289.12 (2), as renumbered, is amended to read:
289.12 (2) Exemption from liability. A landfill official is immune from civil prosecution for good faith actions taken within the scope of his or her official duties under this subchapter chapter or ch. 291 or 292.
227,628 Section 628. 144.447 of the statutes is renumbered 289.36, and 289.36 (2) (b) and (c) 1. and 2., as renumbered, are amended to read:
289.36 (2) (b) The property is determined to be feasible for use as a solid or hazardous waste facility by the department if that determination is required under s. 144.44 (2) 289.29.
(c) 1. Five years prior to the determination of feasibility if a determination of feasibility is required for the facility under s. 144.44 (2) 289.29.
2. Five years prior to the service of a jurisdictional offer under s. 32.06 (3) if a determination of feasibility is not required for the facility under s. 144.44 (2) 289.29.
227,629 Section 629. 144.448 of the statutes is renumbered 289.08, and 289.08 (1), as renumbered, is amended to read:
289.08 (1) The metallic mining council shall advise the department on the implementation of ss. 144.435, 144.44, 144.441, 144.442, 144.444, 144.445, 144.60 to 144.74 and 144.80 to 144.94 289.05, 289.21 to 289.32, 289.34, 289.42, 289.43, 289.46, 289.47, 289.62 to 289.64, 289.67, 289.68 and 292.31 and chs. 291 and 293 as those sections and chapters relate to metallic mining in this state.
227,630 Section 630. 144.449 of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 289.55.
227,631 Section 631. 144.45 (title) of the statutes is repealed.
227,632 Section 632. 144.45 of the statutes is renumbered 289.07 (4) and amended to read:
289.07 (4) The department may conduct Conduct or direct scientific experiments, investigations, demonstration grants and research on any matter relating to solid waste disposal, including, but not limited to, land fill, disposal and utilization of junked vehicles, and production of compost.
227,633 Section 633. 144.453 of the statutes is renumbered 289.57, and 289.57 (2), as renumbered, is amended to read:
289.57 (2) Maintenance of records. Except as provided in s. 144.433 289.09 (2) (a) 2., the department shall separately maintain as a public record, for each solid waste facility, the reports required by sub. (1).
227,634 Section 634. 144.455 (title) of the statutes is renumbered 289.83 (title).
227,635 Section 635. 144.455 (1) (intro.) and (b) of the statutes are consolidated, renumbered 289.83 (1) and amended to read:
289.83 (1) (title) Definitions Definition. In this section: (b) "Political, "political subdivision" means a city, village, town, county or town sanitary district.
227,636 Section 636. 144.455 (1) (a) of the statutes is repealed.
227,637 Section 637. 144.455 (2) to (6) of the statutes are renumbered 289.83 (2) to (6).
227,638 Section 638. 144.46 of the statutes is renumbered 289.35.
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