1995 Wisconsin Act 227

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227,618 Section 618 . 144.443 (1) (a) of the statutes is repealed.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.

227,639 Section 639 . 144.463 of the statutes, as affected by 1995 Wisconsin Act 115, is renumbered 289.59.

227,640 Section 640 . 144.465 of the statutes is renumbered 289.92, and 289.92 (intro.) and (2) (b), as renumbered, are amended to read:

289.92 Review of alleged violations. (intro.) Any 6 or more citizens or any municipality may petition for a review of an alleged violation of ss. 144.43 to 144.47 this chapter or any rule promulgated or special order, plan approval, license or any term or condition of a license issued under those sections this chapter in the following manner:

(2) (b) Initiate action under s. 144.47 289.97.

227,641 Section 641 . 144.469 of the statutes is renumbered 289.96, and 289.96 (1), as renumbered, is amended to read:

289.96 (1) (a) No person may treat, store or dispose of high-volume industrial waste, as defined under s. 144.44 (7) (a) 1., in violation of a testing requirement or condition of an exemption under s. 144.44 (7) (f) 4 289.43 (7) (d).

(b) No person may violate a testing requirement or condition of an exemption from regulation under s. 144.44 (7) (g) 3 289.43 (8) (c).

227,642 Section 642 . 144.47 of the statutes is renumbered 289.97, and 289.97 (1) (a), as renumbered, is amended to read:

289.97 (1) (a) If the department has reason to believe that a violation of ss. 144.43 to 144.47 this chapter or any rule promulgated or special order, plan approval, or any term or condition of a license issued under those sections this chapter occurred, it may:

1. Cause written notice to be served upon the alleged violator. The notice shall specify the law or rule alleged to be violated, and contain the findings of fact on which the charge of violation is based, and, except as provided in s. 144.44 (8) 289.95, may include an order that necessary corrective action be taken within a reasonable time. This order shall become effective unless, no later than 30 days after the date the notice and order are served, the person named in the notice and order requests in writing a hearing before the department. Upon such request, the department shall after due notice hold a hearing. Instead of an order, and except as provided in s. 144.44 (8) 289.95, the department may require that the alleged violator appear before the department for a hearing at a time and place specified in the notice and answer the charges complained of; or

2. Initiate action under s. 144.98 299.95.

227,643 Section 643 . 144.48 of the statutes is renumbered 299.51, and 299.51 (1) (a), (b) and (c) to (e), as renumbered, are amended to read:

299.51 (1) (a) “Clinic" has the meaning given in s. 159.07 287.07 (7) (c) 1. a.

(b) “Medical waste" means infectious waste, as defined in s. 159.07 287.07 (7) (c) 1. c., and other waste that contains or may be mixed with infectious waste.

(c) “Solid waste disposal" has the meaning given in s. 144.43 (4r) 289.01 (34).

(d) “Solid waste facility" has the meaning given in s. 144.43 (5) 289.01 (35).

(e) “Solid waste treatment" has the meaning given in s. 144.43 (7r) 289.01 (39).

227,644 Section 644 . 144.50 of the statutes is renumbered 299.53, and 299.53 (4) (a) 3., as renumbered, is amended to read:

299.53 (4) (a) 3. Refer the matter to the department of justice for enforcement under s. 144.98 299.95.

227,645 Section 645 . 144.52 of the statutes is renumbered 299.55, and 299.55 (1) and (2) (a) and (d), as renumbered, are amended to read:

299.55 (1) Records. Except as provided under sub. (2), records and other information furnished to or obtained by the department in the administration of ss. 144.50 and 159.15 287.15 and 299.53 are public records subject to s. 19.21.

(2) (a) Application. Any person subject to s. 144.50 or 159.15 287.15 or 299.53 may seek confidential treatment of any records or other information furnished to or obtained by the department in the administration of s. 144.50 or 159.15 287.15 or 299.53.

(d) Use of confidential records. Except as provided under par. (c) and this paragraph, the department or the department of justice may use records and other information granted confidential status under this subsection only in the administration and enforcement of s. 144.50 or 159.15 287.15 or 299.53. The department or the department of justice may release for general distribution records and other information granted confidential status under this subsection if the applicant expressly agrees to the release. The department or the department of justice may release on a limited basis records and other information granted confidential status under this subsection if the department or the department of justice is directed to take this action by a judge or hearing examiner under an order which protects the confidentiality of the records or other information. The department or the department of justice may release to the U.S. environmental protection agency or its authorized representative records and other information granted confidential status under this subsection if the department or the department of justice includes in each release of records or other information a request to the U.S. environmental protection agency or its authorized representative to protect the confidentiality of the records or other information.

227,646 Section 646 . 144.60 (title) and (1) of the statutes are repealed.

Note: This section repeals the “short title" of the hazardous waste management statutes. The repealed provision is as follows:

“144.60 (1) Title. Sections 144.60 to 144.74 shall be known and may be cited as the “Hazardous Waste Management Act"."

The use of short titles is an obsolete drafting style. A short title is entirely nonsubstantive and, therefore, adds nothing to the management statutes. Users of these statutes may continue to refer to them as the “hazardous waste management act" or by any other name that seems appropriate.