1995 Wisconsin Act 227

(a) Except as provided in par. (d) sub. (4), the groundwater fee imposed under par. (a) sub. (1) is 10 cents per ton for solid waste or hazardous waste.

(b) The well compensation fee imposed under par. (a) sub. (1) for solid waste or hazardous waste, excluding prospecting or mining waste, is one cent per ton.

(c) (intro.) In this subdivision paragraph, “solid waste disposal and incineration capacity" means the sum of the total capacity remaining at the beginning of a calendar year in all existing municipal waste landfills and the total solid waste incineration capacity of all existing incinerators during the expected life of the incinerators. The solid waste capacity fee imposed under par. (a) sub. (1) for solid waste disposed of after January 1, 1995, excluding hazardous waste and excluding solid waste generated in this state, shall be determined by the department at the beginning of each calendar year based on a comparison of the solid waste disposal and incineration capacity in this state and in the state in which the solid waste is generated. Except as provided in subd. 4. par. (d), the solid waste capacity fee is as follows:

(d) If the solid waste capacity fee for solid waste generated in any state remains at the same level or increases in 2 consecutive calendar years, the fee under subd. 3. par. (c) is doubled. The fee shall remain doubled until solid waste generated in that state qualifies for a lower fee under subd. 3. par. (c).

(4) Amount of groundwater fee; prospecting or mining waste. The groundwater fee imposed under par. (a) sub. (1) is one cent per ton for prospecting or mining waste, including tailing solids, sludge or waste rock.

(5) In addition to other fees. The groundwater, solid waste capacity and well compensation fees collected and paid under par. (b) sub. (2) are in addition to the tonnage fee imposed under sub. (3) s. 289.62 (1), the environmental repair base fee imposed under s. 144.442 (2) 289.67 (3) and the environmental repair surcharge imposed under s. 144.442 (3) 289.67 (4).

(6) Exemption from groundwater, solid waste capacity and well compensation fees; certain materials used in operation of the facility. Solid waste materials approved by the department for lining, daily cover or capping or for constructing berms, dikes or roads within a solid waste disposal facility are not subject to the groundwater, solid waste capacity and well compensation fees imposed under par. (a) sub. (1), except that foundry sands or shredder fluff approved for use under s. 144.44 (3) (bh) or (4e) 289.30 (5) or 289.31 (9) are subject to groundwater and well compensation fees.

(7) Reporting period. The reporting period under this subsection section is the same as the reporting period under sub. (3) s. 289.62 (1). The owner or operator of any licensed solid or hazardous waste disposal facility shall pay groundwater, solid waste capacity and well compensation fees required to be collected under par. (b) sub. (2) at the same time as any tonnage fees under sub. (3) s. 289.62 (1) are paid.

(8) Use of groundwater, solid waste capacity and well compensation fees. The groundwater fees collected under par. (b) sub. (2) shall be credited to the environmental fund for groundwater management. The well compensation and solid waste capacity fees collected under par. (b) sub. (2) shall be credited to the environmental fund for environmental repair.

(9) Failure to pay groundwater, solid waste capacity and well compensation fees. (a) If a person required under par. (a) sub. (1) to pay groundwater, solid waste capacity and well compensation fees to a licensed solid or hazardous waste disposal facility fails to pay the fees, the owner or operator of the licensed solid or hazardous waste disposal facility shall submit to the department with the payment required under par. (b) sub. (2) an affidavit stating facts sufficient to show the person's failure to comply with par. (a) sub. (1).

(b) If the person named in the affidavit under subd. 1. par. (a) is a generator or a person who arranges for collection or disposal services on behalf of one or more generators and the person holds a license for the collection and transportation of solid or hazardous waste, the department shall immediately notify the person that the license will be suspended 30 days after the date the notice is mailed unless the person submits to the department an affidavit stating facts sufficient to show that it has paid the fees as required under par. (a) sub. (1).

(c) If the person named in the affidavit under subd. 1. par. (a) is an intermediate hauler that holds a license for the collection and transportation of solid or hazardous waste, the department shall immediately notify the person that the license will be suspended 30 days after the date the notice is mailed unless the person submits to the department an affidavit stating facts sufficient to show that either of the following has occurred:

1. The person named in the affidavit under subd. 1. par. (a) received the required fees from a generator, from a person who arranges for collection or disposal services on behalf of one or more generators or from an earlier intermediate hauler, and paid the fees to the licensed solid or hazardous waste disposal facility or to a subsequent intermediate hauler.

2. A generator, a person who arranges for collection or disposal services on behalf of one or more generators or an earlier intermediate hauler failed to pay the required fees to the person named in the affidavit under subd. 1. par. (a).

(d) If the department does not receive an affidavit under subd. 2. or 3. par. (b) or (c) within 30 days after the date the notice is mailed, the department shall suspend the license issued to the person for the collection and transportation of solid or hazardous waste. Notwithstanding s. 227.42, the department is not required to provide the licensee with a hearing before the suspension.

(e) When a person whose license is suspended under subd. 4. par. (d) provides the department with proof that the person has paid the owner or operator of the licensed solid or hazardous waste facility the amount of the unpaid fees, the department shall immediately reinstate the suspended license.

227,593 Section 593 . 144.441 (7m) of the statutes is renumbered 289.64, and 289.64 (1) and (3) to (7), as renumbered, are amended to read:

289.64 (1) Imposition of solid waste facility siting board fee on generators. Except as provided under par. (d) sub. (4), a generator of solid waste or hazardous waste shall pay a solid waste facility siting board fee for each ton or equivalent volume of solid waste or hazardous waste that is disposed of at a licensed solid waste or hazardous waste disposal facility. If a person arranges for collection or disposal services on behalf of one or more generators, that person shall pay the solid waste facility siting board fee to the licensed solid waste or hazardous waste disposal facility or to any intermediate hauler used to transfer wastes from collection points to a licensed facility. An intermediate hauler who receives the solid waste facility siting board fee under this paragraph subsection shall pay the fee to the licensed solid waste or hazardous waste disposal facility. Tonnage or equivalent volume shall be calculated in the same manner as the calculation made for tonnage fees under sub. (3) s. 289.62 (1).

(3) Amount of solid waste facility siting board fee. The fee imposed under this subsection section is 1.7 cents per ton for solid waste or hazardous waste.

(4) Exemption from solid waste facility siting board fee; certain materials used in operation of the facility. Solid waste materials approved by the department for lining, daily cover or capping or for constructing berms, dikes or roads within a solid waste disposal facility are not subject to the solid waste facility siting board fee imposed under par. (a) sub. (1), except that materials approved for use under s. 144.44 (3) (bh) or (4e) 289.30 (5) or 289.31 (9) are subject to the fee.

(5) Reporting period. The reporting period under this subsection section is the same as the reporting period under sub. (3) s. 289.62 (1). The owner or operator of any licensed solid waste or hazardous waste disposal facility shall pay the solid waste facility siting board fee required to be collected under par. (b) sub. (2) at the same time as any tonnage fees under sub. (3) s. 289.62 (1) are paid.

(6) Use of solid waste facility siting board fees. The fees collected under par. (b) sub. (2) shall be credited to the appropriation under s. 20.370 (2) (eg) for transfer to the appropriation under s. 20.505 (4) (k).

(7) Failure to pay solid waste facility siting board fee. (a) If a person required under par. (a) sub. (1) to pay the solid waste facility siting board fee to a licensed solid waste or hazardous waste disposal facility fails to pay the fee, the owner or operator of the licensed solid waste or hazardous waste disposal facility shall submit to the department with the payment required under par. (b) sub. (2) an affidavit stating facts sufficient to show the person's failure to comply with par. (a) sub. (1).

(b) If the person named in the affidavit under subd. 1. par. (a) is a generator or a person who arranges for collection or disposal services on behalf of one or more generators and the person holds a license for the collection and transportation of solid waste or hazardous waste, the department shall immediately notify the person that the license will be suspended 30 days after the date the notice is mailed unless the person submits to the department an affidavit stating facts sufficient to show that it has paid the fee as required under par. (a) sub. (1).

(c) If the person named in the affidavit under subd. 1. par. (a) is an intermediate hauler that holds a license for the collection and transportation of solid waste or hazardous waste, the department shall immediately notify the person that the license will be suspended 30 days after the date the notice is mailed unless the person submits to the department an affidavit stating facts sufficient to show that either of the following has occurred:

1. The person named in the affidavit under subd. 1. par. (a) received the required fee from a generator, from a person who arranges for collection or disposal services on behalf of one or more generators or from an earlier intermediate hauler, and paid the fee to the licensed solid waste or hazardous waste disposal facility or to a subsequent intermediate hauler.

2. A generator, a person who arranges for collection or disposal services on behalf of one or more generators or an earlier intermediate hauler failed to pay the required fee to the person named in the affidavit under subd. 1. par. (a).

(d) If the department does not receive an affidavit under subd. 2. or 3. par. (b) or (c) within 30 days after the date the notice is mailed, the department shall suspend the license issued to the person for the collection and transportation of solid waste or hazardous waste. Notwithstanding s. 227.42, the department is not required to provide the licensee with a hearing before the suspension.

(e) When a person whose license is suspended under subd. 4. par. (d) provides the department with proof that the person has paid the owner or operator of the licensed solid waste or hazardous waste facility the amount of the unpaid fee, the department shall immediately reinstate the suspended license.

227,594 Section 594 . 144.4412 of the statutes is renumbered 289.65, and 289.65 (2) and (5) (c), as renumbered, are amended to read:

289.65 (2) Collection. The owner or operator of an incinerator with an operating permit or license that is approved under s. 144.391 285.60 or 144.44 (4) 289.31 shall pay to the department the amount of the solid waste capacity fee required to be collected according to the amount of solid waste burned during the previous calendar year.

(5) (c) Solid waste generated in another state if the solid waste is converted into fuel or burned at a municipal solid waste treatment facility with an operating permit or license that is approved under s. 144.391 285.60 or 144.44 (4) 289.31 prior to May 11, 1990, and the solid waste is delivered to the municipal solid waste treatment facility pursuant to a contract in effect 2 years after May 11, 1990.

227,595 Section 595 . 144.4414 of the statutes is renumbered 289.66 and amended to read:

289.66 Solid waste capacity fees; department determinations. Beginning on January 1, 1991, and annually thereafter, the department shall determine the solid waste disposal and incineration capacity, as defined in s. 144.4412 289.65 (1) (b), of this state and each adjacent state. The department shall inform the owner or operator of each solid waste disposal facility and each incinerator in this state of the amount of the solid waste capacity fee under ss. 144.441 (7) 289.63 and 144.4412 289.65 for solid waste generated in each adjacent state, commencing on January 1, 1995, based on that solid waste disposal and incineration capacity determination.

227,596 Section 596 . 144.442 (title) of the statutes is renumbered 292.31 (title).

227,597 Section 597 . 144.442 (1) (intro.) and (a) to (c) of the statutes are repealed.

227,598 Section 598 . 144.442 (1) (cm) of the statutes is repealed.

227,599 Section 599 . 144.442 (1) (d) of the statutes is renumbered 292.01 (18) and amended to read:

292.01 (18) “Site or facility" means, except in sub. (9m) ss. 292.35 and 292.61, an approved facility, an approved mining facility, a nonapproved facility or a waste site.

227,600 Section 600 . 144.442 (1) (e) of the statutes is renumbered 292.01 (21).

227,601 Section 601 . 144.442 (1m) of the statutes is renumbered 289.67 (1), and 289.67 (1) (a), (cp), (e), (f) and (g), as renumbered, are amended to read:

289.67 (1) (a) Imposition of fee. Except as provided under par. (f), a generator of solid or hazardous waste shall pay an environmental repair fee for each ton or equivalent volume of solid or hazardous waste which is disposed of at a licensed solid or hazardous waste disposal facility. If a person arranges for collection or disposal services on behalf of one or more generators, that person shall pay the environmental repair fee to the licensed solid or hazardous waste disposal facility or to any intermediate hauler used to transfer wastes from collection points to a licensed facility. An intermediate hauler who receives environmental repair fees under this paragraph shall pay the fees to the licensed solid or hazardous waste disposal facility. Tonnage or equivalent volume shall be calculated in the same manner as the calculation made for tonnage fees under s. 144.441 (3) 289.62 (1).

(cp) Amount of environmental repair fee. Notwithstanding par. (cm) and except as provided under par. (d), the environmental repair fee imposed under par. (a) is 30 cents per ton for solid or hazardous waste, other than high-volume industrial waste, as defined in s. 144.44 (7) (a) 1., disposed of on or after January 1, 1988, but before July 1, 1989, and 50 cents per ton disposed of on or after July 1, 1989.

(e) In addition to other fees. The environmental repair fee collected and paid under par. (b) is in addition to the base fee imposed under sub. (2), the surcharge imposed under sub. (3), the tonnage fee imposed under s. 144.441 (3) 289.62 (1) and the groundwater, solid waste capacity and well compensation fees imposed under s. 144.441 (7) 289.63.

(f) Exemption from environmental repair fee; certain materials used in operation of the facility. Solid waste materials approved by the department for lining, daily cover or capping or for constructing berms, dikes or roads within a solid waste disposal facility are not subject to the environmental repair fee imposed under par. (a), except that foundry sands or shredder fluff approved for use under s. 144.44 (3) (bh) or (4e) 289.30 (5) or 289.31 (9) are subject to the environmental repair fee.

(g) Reporting period. The reporting period under this subsection is the same as the reporting period under s. 144.441 (3) 289.62 (1). The owner or operator of any licensed solid or hazardous waste disposal facility shall pay environmental repair fees required to be collected under par. (b) at the same time as any tonnage fees under s. 144.441 (3) 289.62 (1).

227,602 Section 602 . 144.442 (1s) of the statutes is renumbered 289.67 (2), and 289.67 (2) (a), (c) 3. and (d), as renumbered, are amended to read:

289.67 (2) (a) A generator of hazardous waste who is required to report annually on hazardous waste activities according to rules promulgated under s. 144.62 (8) 291.05 (6) (b) shall pay an annual environmental repair fee.

(c) 3. Hazardous wastes which are removed from a site or facility to repair environmental pollution. In this subdivision, “site or facility" has the meaning given in s. 292.01 (18).

(d) The department shall assess fees under par. (a) on the basis of the generator's report that is submitted according to the rules promulgated under s. 144.62 (8) 291.05 (6) (b).

227,603 Section 603 . 144.442 (2) of the statutes is renumbered 289.67 (3), and 289.67 (3) (d), as renumbered, is amended to read:

289.67 (3) (d) Reduction of base fee; monitoring. This paragraph applies to a nonapproved facility which is subject to the $1,000 base fee under par. (b) 2. and which is required by the department to conduct monitoring under s. 144.44 (4) (f) 289.31 (7). The base fee under par. (b) 2. shall be reduced by the cost of monitoring for the calendar year to which the base fee applies, or $900, whichever is less.

227,604 Section 604 . 144.442 (3) of the statutes is renumbered 289.67 (4), and 289.67 (4) (a) and (b), as renumbered, are amended to read:

289.67 (4) (a) Imposition of environmental repair surcharge. If the owner or operator of a nonapproved facility is required to pay a tonnage fee under s. 144.441 (3) 289.62 (1), the owner or operator shall pay to the department an environmental repair surcharge for each calendar year.

(b) Amount of environmental repair surcharge. 1. With respect to solid or hazardous waste disposed of at a nonapproved facility for which the owner or operator enters into an agreement with the department to close the facility on or before July 1, 1999, the owner or operator shall pay to the department an environmental repair surcharge equal to 25% of the tonnage fees imposed under s. 144.441 (3) 289.62 (1). The 25% surcharge first applies for the calendar year in which the owner or operator enters into a closure agreement. If the owner or operator fails to comply with the closure agreement, the department shall collect the additional tonnage fees which would have been paid by the owner or operator under subd. 2. in the absence of the closure agreement.

2. With respect to solid or hazardous waste disposed of at a nonapproved facility for which the owner or operator has not entered into an agreement with the department to close the facility on or before July 1, 1999, the owner or operator shall pay to the department an environmental repair surcharge equal to 50% of the tonnage fees imposed under s. 144.441 (3) 289.62 (1).

227,605 Section 605 . 144.442 (4) of the statutes is renumbered 292.31 (1), and 292.31 (1) (d) 3., as renumbered, is amended to read:

292.31 (1) (d) 3. The identity of subsidiary or parent corporations, as defined in sub. (9) 292.31 (8) (a) 3., of persons who generated, transported, treated or stored waste which was disposed of at the site or facility.

227,606 Section 606 . 144.442 (5) of the statutes is renumbered 292.31 (2), and 292.31 (2) (a) to (c) and (f), as renumbered, are amended to read:

292.31 (2) (a) Methods for preparing the inventory and conducting the analysis under sub. (4) (1).

(b) Methods for remedial action under sub. (6) (3).

(c) Methods and criteria for determining the appropriate extent of remedial action under sub. (6) (3).

(f) Means of making the most effective use of the grant program under sub. (9m) s. 292.61 so as to encourage the greatest number of political subdivisions to undertake remedial action on property that they own.

227,607 Section 607 . 144.442 (6) of the statutes is renumbered 292.31 (3), and 292.31 (3) (b) 7., (d) and (f), as renumbered, are amended to read:

292.31 (3) (b) 7. The department may provide temporary or permanent replacements for private water supplies damaged by a site or facility. In this subdivision, “private water supply" means a well which is used as a source of water for humans, livestock, as defined in s. 95.80 (1) (b), or poultry.

(d) Emergency responses. Notwithstanding rules promulgated under this section, the hazard ranking list, the considerations for taking action under par. (c) or the remedial action schedule under par. (cm), the department may take emergency action under this subsection and subs. (4) (1) and (8) (7) at a site or facility if delay will result in imminent risk to public health or safety or the environment. The department is not required to hold a hearing under par. (f) if emergency action is taken under this paragraph. The decision of the department to take emergency action is a final decision of the agency subject to judicial review under ch. 227.

(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).