2005 WISCONSIN ACT 347
An Act to repeal 281.48 (3) (d) 1. to 4., 281.48 (4m) (b) 2. and 281.48 (4s) (a) 4. and (b); to renumber 200.59 (5); to renumber and amend 145.245 (3), 281.48 (3) (d) (intro.) and 281.49 (1) (a); to amend 20.370 (3) (ma), 20.370 (3) (bL), 20.370 (4) (bL), 20.370 (4) (mq), 29.601 (3) (b), 30.202 (3), 30.2022 (1), 70.375 (4) (o), 94.73 (2) (bg) 2. and (d), 145.10 (1) (c), 145.245 (9) (a), 160.27 (5), 281.17 (3), 281.48 (title), 281.48 (2) (b) to (g), 281.48 (2m), 281.48 (3) (e), 281.48 (4g), 281.48 (4m) (title) and (a), 281.48 (4m) (b) (intro.), 281.48 (4m) (b) 1., 281.48 (4m) (c), 281.48 (5) (a) 4., 281.48 (5m) (c), 281.49 (5) (c) 4., 281.58 (7) (b) 1., 281.58 (8) (b) 1., 281.77 (1) (b), 283.87 (1), 299.95, 348.15 (3) (bv) and 895.48 (2) (c) 2.; and to create 66.0821 (5) (c), (d) and (e), 145.20 (2) (i), 196.85 (1m) (c), 200.59 (5) (b), (c) and (d), 281.41 (3), 281.48 (2) (bm), 281.48 (4m) (d), 281.48 (5p), 281.49 (10), (11) and (12), 281.58 (1) (cv), 281.58 (12) (a) 5. and 283.82 of the statutes; relating to: the management and disposal of septage and municipal sewage sludge, granting rule-making authority, and making an appropriation.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
Joint Legislative Council prefatory note: This bill was prepared for the joint legislative council's special committee on septage disposal. The bill has the following key provisions.
Septage disposal fees
The current statutes regulate the disposal fees that a municipal sewage system may charge a licensed disposer (septage hauler) to dispose of septage at the system's facilities. This bill makes the following changes to this statute:
Establishes that the septage disposal fees charged by a municipal sewage system must be reasonable and specifies that a municipal sewage system must base these fees on the specified actual costs related to the disposal of the septage.
Establishes a 3-stage process for a licensed disposer to obtain a review of a disputed septage disposal fee by the municipal sewage system, staff at the public service commission (PSC), and then the PSC and specifies the allocation of the PSC's expenses in the 3rd stage.
Requires each municipal sewage system to notify each licensed disposer disposing of septage in the system of any increase in a disposal fee applicable to the licensed disposer at least 60 days prior to imposing the increased disposal fee.
Maintenance of private sewage systems
Under current law, the department of commerce has promulgated rules that establish a maintenance program for new private sewage systems in counties that participate in the Wisconsin fund grant program for private sewage system replacement. One of the conditions for a county to participate in the Wisconsin fund grant program is that the county must adopt and enforce the maintenance program. Under its general authority to regulate private sewage systems, the department of commerce has promulgated rules that set forth maintenance requirements for all private sewage systems. This bill moves the county maintenance program out of the Wisconsin fund grant program and into the general department of commerce duties, and makes all counties responsible for adoption and enforcement of the maintenance program.
Clean Water Fund loans
The current statutes create the clean water fund program, which provides financial assistance to municipalities for the cost of planning, design, and construction of wastewater treatment facilities, and other surface water and groundwater pollution abatement facilities. The program includes various forms of financial assistance, including market interest rate or below market interest rate loans. This bill modifies the clean water fund program to provide zero percent interest rate loans for any portion of a treatment work project that relates to facilities for receiving and capacity for treating septage. This will reduce some of the potential risk incurred by the municipality in providing facilities and capacity for septage disposal, in case the anticipated amount of septage is not received, and will provide an incentive for the municipality to provide these facilities and capacity.
Sewage treatment plant planning
Facilities plans are prepared for each sewage disposal plant. There is not currently a specific requirement to address the issues related to septage disposal, although these issues could be included in the plans under current law. This bill creates a specific requirement to address septage disposal needs in these plans.
Septage and sewage sludge disposal regulations
The disposal of septage on land is regulated under the current statutes. The department of natural resources (DNR) has adopted administrative rules to implement the statutes. This bill makes a number of technical changes to these statutes, and makes several minor substantive changes, such as changing the disposal site license to a site approval, restricting the current exemption from the requirement for a disposal site approval, and clarifying the legal effect of an application for site approval. In addition, this bill provides that local units of government may not prohibit the land disposal of septage or sewage sludge, and places limits on the authority of local units of government to regulate the land disposal of sewage sludge.
Septage land disposal license fees
The bill repeals the current fees for licenses for septage land disposal sites.
Enforcement
The bill draft removes a conflict between 2 current statutes and clarifies that the attorney general enforces violations of septage servicing and disposal violations referred by the DNR. The bill does not affect the authority of DNR to enforce lesser violations of these regulations via issuance of citations.
Deletion of statutory cross-references
The current statutes include many provisions that cross-reference all of the environmental statutes. Fourteen of these provisions include an exception for the septage disposal statute. The exceptions for the septage disposal statute resulted from the renumbering of environmental statutes in the 1995 session of the legislature. The septage disposal statute was not included among the environmental statutes prior to the renumbering, but was moved so as to be grouped with those statutes as part of the renumbering. The exceptions were created as part of the renumbering to avoid making substantive changes in the process of renumbering. This bill deletes these exceptions. A detailed explanation of the consequence of each amendment is included in the bill.
347,2
Section
2. 20.370 (3) (ma) of the statutes is amended to read:
20.370 (3) (ma) General program operations — state funds. From the general fund, the amounts in the schedule for regulatory and enforcement operations under chs. 30, 31 and 280 to 299, except s. 281.48, and ss. 44.47, 59.692, 59.693, 61.351, 61.354, 62.231, 62.234 and 87.30, for reimbursement of the conservation fund for expenses incurred for actions taken under s. 166.04; for review of environmental impact requirements under ss. 1.11 and 23.40; and for enforcement of the treaty-based, off-reservation rights to fish, hunt and gather held by members of federally recognized American Indian tribes or bands.
Note: This appropriation is the general fund appropriation to DNR for the regulatory and enforcement responsibilities of the agency under all of the environmental statutes within its jurisdiction. There is no apparent reason for maintaining the exception for septage regulation in the cross-reference to s. 281.48.
The exemption for septage disposal in this statute was created as the result of the renumbering of environmental statutes in the 1995 session of the legislature. Prior to that time, most of the environmental statutes under DNR jurisdiction were contained in 2 chapters of the statutes, chs. 144 and 147, 1993 stats. It was a simple matter then to refer to all environmental statutes by reference to these 2 chapters.
The septage disposal statute, although under DNR jurisdiction, was contained in s. 146.20, stats. The reason for this location of the septage disposal statute was that it was originally within department of health jurisdiction, as were all statutes in ch. 146. The responsibility for septage disposal regulation was transferred to the DNR in 1967 as part of the Kellett reorganization of the executive branch of state government.
The septage statute should have been moved to one of the chapters of statutes under DNR jurisdiction in 1967. When the environmental statutes were reorganized in the 1995 legislative session, the legislative council study committee that recommended the reorganization requested a bill that made no substantive changes in the statutes, and merely reorganized them. As a result, although the septage disposal statute was renumbered to place it within the other environmental statutes under DNR jurisdiction, the references to all environmental statutes excluded septage disposal, because the septage disposal statute was not included within those statutes prior to the reorganization.
This bill makes the same amendment in all of the other statutes that contain an exemption for the septage disposal statute.
20.370 (3) (bL) Operator certification — fees. From the general fund, from the moneys received under ss. 281.17 (3) and 281.48 (4s) (a) and (b), the amounts in the schedule for administrative activities related to the certification of operators of water systems, wastewater treatment plants, and septage servicing vehicles.
20.370 (4) (bL) Wastewater management — fees. From the general fund, from the moneys received under. ss. 281.17 (3) and s. 281.48 (4s) (a) and (b), all moneys not appropriated under sub. (3) (bL), for the certification of operators of water systems, wastewater treatment plants and septage servicing vehicles and for wastewater management activities.
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Section
4. 20.370 (4) (mq) of the statutes is amended to read:
20.370 (4) (mq) General program operations — environmental fund. From the environmental fund, the amounts in the schedule for administration of environmental activities under chs. 160, 281 and 283, except s. 281.48.
Note: This appropriation is the segregated fund appropriation to DNR, from the environmental fund, for the administration of environmental activities under the groundwater statutes and the statutes related to water and sewage. The septage regulatory program is also an environmental statute related to water and sewage. This amendment brings this appropriation into conformance with legislative intent. [For a full explanation of the source of the current exemption in this statute for septage disposal, see the Note to the
Section in this bill that amends s. 20.370 (3) (ma).]
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Section
5. 29.601 (3) (b) of the statutes is amended to read:
29.601 (3) (b) Paragraph (a) does not apply to authorized drainage and sewage from municipalities and industrial or other wastes discharged from mines or commercial or industrial or ore processing plants or operations, through treatment and disposal facilities installed and operated in accordance with plans submitted to and approved by the department under chs. 281, 285 or 289 to 299, except s. 281.48, or in compliance with orders of the department. Any order is subject to modification by subsequent orders.
Note: Section 29.601 (3) (a), stats., provides that no person may deposit "deleterious substances" in waters of the state. Deleterious substances consist of any waste material, and waters of the state include all lakes and streams. Section 29.601 (3) (b), stats., provides an exception to this prohibition for drainage and sewage that is treated and disposed of according to an approval by the DNR. This amendment eliminates the exception for septage disposal, thus treating septage disposal in the same manner as other approved drainage and sewage treatment. [For a full explanation of the source of the current exemption in this statute for septage disposal, see the Note to the Section in this bill that amends s. 20.370 (3) (ma).]
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Section
6. 30.202 (3) of the statutes is amended to read:
30.202 (3) Exemption from statutes and rules. Dredge spoil disposal activities authorized under sub. (2) are exempt from any prohibition, restriction, requirement, permit, license, approval, authorization, fee, notice, hearing, procedure or penalty specified under s. 29.601, 30.01 to 30.20, 30.21 to 30.99, 59.692 or 87.30 or chs. 281 to 285 or 289 to 299, except s. 281.48, or specified in any rule promulgated, order issued or ordinance adopted under those sections or chapters.
Note: Section 30.202 relates to dredge disposal in and near the Mississippi, St. Croix, and Black Rivers by the U.S. corps of engineers. The statute authorizes DNR to enter into a memorandum of understanding with the U.S. corps of engineers regarding dredge spoil disposal. The memorandum of understanding must relate to sites where dredge spoils may be deposited and standards and conditions for using an approved site. Dredge spoil activities pursuant to a memorandum of understanding are exempt from any license, permit, or other requirement under environmental statutes. An exception is provided for septage disposal site approval. This exception serves no purpose, because dredge spoil disposal does not involve septage disposal, and the exception is therefore eliminated. [For a full explanation of the source of the current exemption in this statute for septage disposal, see the Note to the Section in this bill that amends s. 20.370 (3) (ma).]
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Section
7. 30.2022 (1) of the statutes is amended to read:
30.2022 (1) Activities affecting waters of the state, as defined in s. 281.01 (18), that are carried out under the direction and supervision of the department of transportation in connection with highway, bridge, or other transportation project design, location, construction, reconstruction, maintenance, and repair are not subject to the prohibitions or permit or approval requirements specified under s. 29.601, 30.11, 30.12, 30.123, 30.19, 30.195, 30.20, 59.692, 61.351, 62.231, or 87.30 or chs. 281 to 285 or 289 to 299, except s. 281.48. However, at the earliest practical time prior to the commencement of these activities, the department of transportation shall notify the department of the location, nature, and extent of the proposed work that may affect the waters of the state.
Note: Section 30.2022, stats., sets forth procedures for department of transportation (DOT) activities related to highway, bridge, and other transportation project design that affects navigable waters. The statute provides that such DOT activities are not subject to permit or approval requirements under environmental statutes. The regulation of septage disposal is not any different in concept from the other cited environmental statutes, and the exception is therefore eliminated. [For a full explanation of the source of the current exemption in this statute for septage disposal, see the Note to the Section in this bill that amends s. 20.370 (3) (ma).]
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Section
8. 66.0821 (5) (c), (d) and (e) of the statutes are created to read:
66.0821 (5) (c) For purposes of this subsection, "user" of a service includes a licensed disposer, as defined in s. 281.49 (1) (b), who disposes of septage at a municipal sewage system under a disposal plan under s. 281.49 (5) and initiates under s. 281.49 (11) (d) a review under par. (a) of a disputed septage disposal fee by the public service commission.
(d) If the public service commission determines in a proceeding under par. (a) that a septage disposal fee is unreasonable, the commission shall determine and fix under par. (a) a reasonable fee that conforms with s. 281.49 (5) (c) 4.
(e) Notwithstanding par. (a), the public service commission shall bill under s. 196.85 (1) any expense of the commission attributable to a proceeding under par. (a) that is initiated under s. 281.49 (11) (d) as follows:
1. If the commission determines in the proceeding that one or more septage disposal fees are unreasonable and determines and fixes by order reasonable septage disposal fees that, when combined with any other applicable septage disposal fees, total an amount that is at least 15 percent lower than the total amount of septage disposal fees established by the municipal sewage system for the quantity and type of septage specified in s. 281.49 (11) (b), the municipal sewage system that is a party to the dispute shall pay the entire amount of the assessment.
2. If the commission determines in the proceeding that one or more of the septage disposal fees are unreasonable and determines and fixes by order reasonable fees that, when combined with any other applicable septage disposal fees, total an amount that is not at least 15 percent lower than the total amount of septage disposal fees established by the municipal sewage system for the quantity and type of septage specified in s. 281.49 (11) (b), the licensed disposer that is a party to the dispute shall pay the entire amount of the assessment.
3. If the commission determines in the proceeding that the septage disposal fees are reasonable, the licensed disposer that is a party to the dispute shall pay the entire amount of the assessment.
4. If the commission terminates the proceeding before making a final determination on the reasonableness of the septage disposal fees, the municipal sewage system and the licensed disposer that are parties to the dispute shall each pay 50 percent of the assessment, unless the municipal sewage system and the licensed disposer agree to a different allocation of the assessment.
Note: Under existing s. 66.0821 (5), a "user of a service" of a municipal sewer system may file a complaint with the PSC that the rates, rules, and practices of the system are unreasonable or unjustly discriminatory. This statute applies to municipal sewer systems that are a municipal utility or a metropolitan sewerage district other than the Milwaukee metropolitan sewerage district (MMSD).
This provision establishes that the complaint process in s. 66.0821 (5) also applies to the rates for the disposal of septage by a licensed disposer at a municipal sewage system subject to sub. (5) if the licensed disposer has first sought review of the disputed rate by the municipal sewage system and by the PSC staff under the process specified in the bill.
This provision specifies the allocation of the PSC's expenses under the formal complaint process. This allocation policy is intended to encourage settlement of a dispute over a septage disposal fee prior to the dispute reaching the PSC.
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Section
9. 70.375 (4) (o) of the statutes is amended to read:
70.375 (4) (o) Actual and necessary reclamation and restoration costs associated with a mine in this state, including payments for future reclamation and postmining costs which are required by law or by department of natural resources order and fees and charges under chs. 281, 285 or 289 to 299, except s. 281.48, not otherwise deductible under this section. Any refunds of escrowed or reserve fund payments allowed as a deduction under this paragraph shall be taxed as net proceeds at the average effective tax rate for the years the deduction was taken.
Note: Section 70.375, stats., relates to the net proceeds occupation tax on mining of metallic minerals. The statute lists deductions that are allowable to a mining company in calculating the net proceeds of the mining operation. Section 70.375 (4) (o), stats., allows deduction for reclamation and restoration costs that are required under any of the environmental statutes. If septage disposal is part of the costs of reclamation or restoration of a metallic mine, there is no reason why those costs should not be deductible in the same manner as any other costs required under environmental statutes, and the exception for septage disposal is therefore deleted. [For a full explanation of the source of the current exemption in this statute for septage disposal, see the Note to the
Section in this bill that amends s. 20.370 (3) (ma).]
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Section
10. 94.73 (2) (bg) 2. and (d) of the statutes are amended to read:
94.73 (2) (bg) 2. Containment, removal, treatment or monitoring of environmental contamination caused by the discharge if the containment, removal, treatment or monitoring complies with chs. 281 to 285 and 289 to 299, except s. 281.48.
(d) Soil or water removed from a discharge site as part of a corrective action may only be spread on land if that spreading on land is in compliance with chs. 281 to 285 and 289 to 299, except s. 281.48, and if the department has given its written authorization.
Note: Section 94.73 establishes the agricultural chemical cleanup program. The statute includes provisions regarding corrective action orders, which may require containment, removal, treatment, transportation, storage, land application, and disposal of contaminated materials, which must be in accordance with environmental statutes. Agricultural chemical cleanup actions do not involve septage disposal, so this exemption serves no purpose. If septage disposal is part of any agricultural chemical cleanup activity in the future, it should be treated in the same manner as other environmental statutes. [For a full explanation of the source of the current exemption in this statute for septage disposal, see the Note to the Section in this bill that amends s. 20.370 (3) (ma).]
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Section
11. 145.10 (1) (c) of the statutes is amended to read:
145.10 (1) (c) Falsified information on an inspection form under s. 145.245 (3) 145.20 (5).
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Section
12. 145.20 (2) (i) of the statutes is created to read:
145.20 (2) (i) Adopt and enforce the maintenance program under sub. (5).
Note: This provision adds to the list of county duties for the private sewage system regulatory program a reference to the maintenance program that is modified and expanded in the next Section of the bill that renumbers and amends s. 145.245 (3).
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Section
14. 145.245 (3) of the statutes is renumbered 145.20 (5) and amended to read:
145.20 (5) Maintenance. (a) The department shall establish a maintenance program to be administered by governmental units responsible for the regulation of private sewage systems. The department shall determine the private sewage systems to which the maintenance program applies. At a minimum the maintenance program is applicable to all new or replacement private sewage systems constructed in a governmental unit after the date on which the governmental unit adopts this program. The department may apply the maintenance program by rule to private sewage systems constructed in a governmental unit responsible for the regulation of private sewage systems on or before the date on which the governmental unit adopts the program. The department shall determine the private sewage systems to which the maintenance program applies in governmental units that do not meet the conditions for eligibility under s. 145.245 (9), except that the maintenance program in these governmental units does not commence until January 1, 2008.
(b) The maintenance program shall include a requirement of inspection or pumping of the private sewage system at least once every 3 years if the private sewage system does not have a maintenance plan as prescribed by rule by the department. Inspections may be conducted by a master plumber, journeyman plumber or restricted plumber licensed under this chapter, a person licensed under s. 281.48 or by an employee of the state or governmental unit designated by the department, and the department may determine by rule other persons who are qualified to undertake required inspection, maintenance, or repairs. The department shall specify the methods to establish the required frequency of inspection, maintenance, and pumping for each type of private sewage system that does not have a maintenance plan and shall periodically update the methods.
(c) The department of natural resources may suspend or revoke a license issued under s. 281.48 or a certificate issued under s. 281.17 (3) to the operator of a septage servicing vehicle if the department of natural resources finds that the licensee or operator falsified information on inspection forms. The department of commerce may suspend or revoke the license of a plumber licensed under this chapter if the department finds that the plumber falsified information on inspection forms.
Note: The department of commerce administers the private sewage system replacement or rehabilitation grant program under s. 145.245, stats. The program is referred to as the Wisconsin fund. This program pays for part of the cost of replacing or rehabilitating failing private sewage systems for eligible individuals and small business owners.
A county must adopt a resolution in which the county agrees to administer the grant program in accordance with state law. One eligibility requirement is that the county where the property is located must adopt and enforce a maintenance program for private sewage systems that are newly installed or replaced after the date that the county adopts the resolution. The maintenance program ensures that inspection and pumping of private sewage systems is done as required. The department of commerce has established the maintenance requirements by administrative rule in s. Comm. 87.60.
This bill moves the county maintenance program statute out of the Wisconsin fund program and into the general department of commerce and county duties for private sewage system regulation, thus making it applicable to all counties. The bill retains the requirement in the current statute that requires inspection or pumping out the contents of a private sewage system at least once every 3 years, but limits this provision to private sewage systems that do not have a maintenance program under current department of commerce rules. The bill directs the department of commerce to specify by rule methods to establish requirements for periodic maintenance of these systems, which will continue to allow counties to adopt more frequent maintenance requirements for these systems. The bill authorizes the department to designate which credentialed professionals may undertake the required inspection, maintenance, or repairs, in addition to those authorized under the current statute.
The current statute requires that the county maintenance program must apply to private sewage systems that are newly installed or replaced after the date that the county adopts the Wisconsin fund grant program. The bill maintains this provision, without change, for counties that participate in the Wisconsin fund grant program. The bill requires the department of commerce to determine which other private sewage systems are subject to the maintenance program, whether or not the county participates in the Wisconsin fund program.
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Section
15. 145.245 (9) (a) of the statutes is amended to read:
145.245 (9) (a) Adopt and administer the maintenance program established under sub. (3) s. 145.20 (5);
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Section
17. 160.27 (5) of the statutes is amended to read:
