1995 Wisconsin Act 227

289.07 (1) Hold hearings relating to any aspect of the administration of ss. 144.43 to 144.47 this chapter and ss. 292.31 and 292.35 and, in connection therewith, compel the attendance of witnesses and the production of evidence.

227,524 Section 524 . 144.431 (2) (b) of the statutes is renumbered 289.93 and amended to read:

289.93 (title) Orders. Issue The department may issue orders to effectuate the purposes of ss. 144.43 to 144.47 this chapter and enforce the same by all appropriate administrative and judicial proceedings.

227,525 Section 525 . 144.431 (2) (c) and (d) of the statutes are renumbered 289.07 (2) and (3).

227,526 Section 526 . 144.431 (2) (e) of the statutes is repealed.

227,527 Section 527 . 144.432 of the statutes is renumbered 289.11 and amended to read:

289.11 Federal aid. Subdivisions of this state and interlocal agencies may make application for, receive, administer and expend any federal aid for the development and administration of programs related to solid waste facilities if first submitted to and approved by the department. The department shall approve any such application if it is consistent with the purposes of ss. 144.43 to 144.47 this chapter and any other applicable requirements of law.

227,528 Section 528 . 144.433 of the statutes is renumbered 289.09, and 289.09 (1) and (2) (a) 1. and 2. and (d), as renumbered, are amended to read:

289.09 (1) Records. Except as provided under sub. (2), any records or other information furnished to or obtained by the department in the administration of ss. 144.43 to 144.47 and 144.96 this chapter and s. 299.15 are public records subject to s. 19.21.

(2) (a) 1. An owner or operator of a solid waste facility may seek confidential treatment of any records or other information furnished to or obtained by the department in the administration of ss. 144.43 to 144.47 and 144.96 this chapter and s. 299.15.

2. A licensed hauler who transports solid waste to a facility listed in s. 144.453 289.57 (1) may seek confidential treatment of information submitted under s. 144.453 289.57 (1) (d).

(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 ss. 144.43 to 144.47 and 144.96 this chapter and s. 299.15. The department or the department of justice may release for general distribution records and other information granted confidential status under this subsection if the owner or operator 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.

Note: The provision on confidentiality of records is duplicated in s. 292.37 for records under current ss. 144.442 and 144.4422.

227,529 Section 529 . 144.434 of the statutes is renumbered 289.91 and amended to read:

289.91 Inspections. Any officer, employe or authorized representative of the department may enter and inspect any property, premises or place on or at which a solid waste facility is located or is being constructed or installed, or inspect any record relating to solid waste management of any person who generates, transports, treats, stores or disposes of solid waste, at any reasonable time for the purpose of ascertaining the state of compliance with ss. 144.43 to 144.47 this chapter and rules promulgated or licenses issued under those sections this chapter. No person may refuse entry or access to any officer, employe or authorized representative of the department who requests entry for purposes of inspection, and who presents appropriate credentials. No person may obstruct, hamper or interfere with any such inspection. The department, if requested, shall furnish to the owner or operator of the premises a report setting forth all facts found which relate to compliance status.

Note: Current s. 144.431 (2) (e) authorizes inspections to determine compliance with solid waste facility licenses. This bill repeals s. 144.431 (2) (e) and adds license compliance as a basis for conducting inspections to s. 144.434, renumbered s. 289.91.

227,530 Section 530 . 144.435 (title), (1) and (2) of the statutes are renumbered 289.05 (title), (1) and (2), and 289.05 (1) and (2), as renumbered, are amended to read:

289.05 (1) The department shall promulgate rules establishing minimum standards for the location, design, construction, sanitation, operation, monitoring and maintenance of solid waste facilities. Following a public hearing, the department shall promulgate rules relating to the operation and maintenance of solid waste facilities as it deems necessary to ensure compliance and consistency with the purposes of and standards established under the resource conservation and recovery act, except that the rules relating to open burning shall be consistent with s. 144.436 289.51. The rules promulgated under this subsection shall conform to the rules promulgated under sub. (2).

(2) With the advice and comment of the metallic mining council, the department shall promulgate rules for the identification and regulation of metallic mining wastes. The rules promulgated to identify metallic mining wastes and to regulate the location, design, construction, operation and maintenance of facilities for the disposal of metallic mining wastes shall be in accordance with any or all of the provisions under this chapter and chs. 30 and 147 283. The rules shall take into consideration the special requirements of metallic mining operations in the location, design, construction, operation and maintenance of facilities for the disposal of metallic mining wastes as well as any special environmental concerns that will arise as a result of the disposal of metallic mining wastes. In promulgating the rules, the department shall give consideration to research, studies, data and recommendations of the U.S. environmental protection agency on the subject of metallic mining wastes arising from the agency's efforts to implement the resource conservation and recovery act.

227,531 Section 531 . 144.435 (3) of the statutes is renumbered 289.42 (1), and 289.42 (1) (a) 5., (b) and (e), as renumbered, are amended to read:

289.42 (1) (a) 5. Require that there be one or more certified operators on the site of a solid waste disposal facility, except for a facility designed for the disposal of high-volume industrial waste, as defined in s. 144.44 (7) (a) 1., at all times during the facility's hours of operation.

(b) The department may not apply the requirements established under par. (a) to a nonapproved facility, as defined in s. 144.441 (1) (c), until January 1, 1992.

(e) The department may suspend or revoke an operator's certification for failure to comply with ss. 144.43 to 144.47 this chapter, rules promulgated under those sections this chapter or conditions of operation made applicable to a solid waste disposal facility by the department.

227,532 Section 532 . 144.435 (4) of the statutes is renumbered 289.42 (2), and 289.42 (2) (a), as renumbered, is amended to read:

289.42 (2) (a) No person engaged in the construction, operation or maintenance of a solid waste disposal facility or hazardous waste disposal facility may dismiss, discipline, demote, transfer, reprimand, harass, reduce the pay of, discriminate against or otherwise retaliate against any employe, or threaten to take any of those actions, because the employe reported to any supervisor, appointing authority, law enforcement official, member of the governing body of the local governmental unit in which the solid waste disposal facility or hazardous waste disposal facility is located or the department any information gained by the employe which the employe reasonably believes demonstrates a violation of ss. 144.43 to 144.47 this chapter or rules promulgated under those sections this chapter.

227,533 Section 533 . 144.435 (5) (a) of the statutes, as created by 1995 Wisconsin Act 27, is repealed.

227,534 Section 534 . 144.435 (5) (b) of the statutes, as created by 1995 Wisconsin Act 27, is renumbered 289.05 (4) and amended to read:

289.05 (4) The department shall promulgate, by rule, standards for the reuse of foundry sand and other high-volume industrial waste, including high-volume industrial waste that qualifies for an exemption from regulation under s. 144.44 (7) (g) 289.43 (8). The department shall design the rules under this paragraph subsection to allow and encourage, to the maximum extent possible consistent with the protection of public health and the environment, the beneficial reuse of high-volume industrial waste, in order to preserve resources, conserve energy and reduce or eliminate the need to dispose of high-volume industrial waste in landfills. In developing rules under this paragraph subsection, the department shall review methods of reusing high-volume industrial waste that are approved by other states and incorporate those methods to the extent that the department determines is advisable. In developing rules under this paragraph subsection, the department shall also consider the analysis and methodology used under 40 CFR 503.13 in determining the impacts on groundwater from various methods of reusing high-volume industrial wastes.

227,535 Section 535 . 144.436 of the statutes is renumbered 289.51.

227,536 Section 536 . 144.437 of the statutes is renumbered 289.10, and 289.10 (title), as renumbered, is amended to read:

289.10 (title) Solid County solid waste management plans.

227,537 Section 537 . 144.438 of the statutes is renumbered 289.44.

227,538 Section 538 . 144.4385 of the statutes, as created by 1995 Wisconsin Act 99, is renumbered 289.445, and 289.445 (1) (b) to (d), as renumbered, are amended to read.

289.445 (1) (b) “Washing station" has the meaning given in s. 147.0175 283.62 (1) (b).

(c) “Wash water" has the meaning given in s. 147.0175 283.62 (1) (c).

(d) “Wash water storage facility" has the meaning given in s. 147.0175 283.62 (1) (d).

227,539 Section 539 . 144.439 of the statutes is renumbered 289.45.

227,540 Section 540 . 144.44 (title), (1) (intro.), (a) and (am) of the statutes are repealed.

Note: “Class 1 proceeding", as defined in s. 144.44 (1) (am), is not used in s. 144.44.

227,541 Section 541 . 144.44 (1) (b), (bm), (c) and (d) of the statutes are renumbered 289.01 (6), (10), (18) and (29), and 289.01 (10) and (29), as renumbered, are amended to read:

289.01 (10) “Hazardous constituent" means any constituent designated by the department under s. 144.62 (2) (c) 291.05 (4).

(29) “Release" has the meaning given under s. 144.735 291.37 (1) (b).

227,542 Section 542 . 144.44 (1) (e) of the statutes is repealed.

Note: The term “surface impoundment" is used only in s. 144.44 (2) (fm) and a definition is placed in that paragraph, as renumbered to s. 289.24 (2).

227,543 Section 543 . 144.44 (1c) of the statutes is renumbered 289.21.

227,544 Section 544 . 144.44 (1m) (title) of the statutes is renumbered 289.22 (title).

227,545 Section 545 . 144.44 (1m) (a), (b), (bn), (c), (d) and (e) of the statutes are renumbered 289.22 (1), (1m), (2), (3), (4) and (5), and 289.22 (1) and (2) to (5), as renumbered, are amended to read:

289.22 (1) Definition. As used in In this subsection section, “local approval" has the meaning specified under s. 144.445 289.33 (3) (d).

(2) Standard notice. The waste facility siting board shall develop and print a standard notice designed to inform an affected municipality of the time limits and requirements for participation in the negotiation and arbitration process under s. 144.445 289.33. An applicant shall submit a copy of this standard notice, if it has been printed, with any written request submitted under par. (b) sub. (1m).

(3) Attempts to obtain local approvals required. Following applications for local approvals under par. (b) sub. (1m) and prior to submitting a feasibility report, any applicant subject to s. 144.445 289.33 shall undertake all reasonable procedural steps necessary to obtain each local approval required to construct the waste handling portion of the facility except that the applicant is not required to seek judicial review of decisions of the local unit of government.

(4) Waiver of local approvals. If a local approval precludes or inhibits the ability of the applicant to obtain data required to be submitted under sub. (1c) (a) 289.21 (1) or in a feasibility report or environmental impact report, the applicant may petition the department to waive the applicability of the local approval to the applicant. If a petition is received, the department shall promptly schedule a hearing on the matter and notify the local government of the hearing. If the department determines at the hearing that the local approval is unreasonable, the department shall waive the applicability of the local approval to the applicant.

(5) Compliance required. Except as provided under par. (d) sub. (4), no person may construct a solid waste disposal facility or a hazardous waste facility unless the person complies with the requirements of pars. (b) and (c) subs. (1m) and (3).

227,546 Section 546 . 144.44 (2) (title) of the statutes is repealed.

227,547 Section 547 . 144.44 (2) (a) and (b) of the statutes are renumbered 289.23 (1) and (2), and 289.23 (2) (intro.), (a) and (c), as renumbered, are amended to read:

289.23 (2) Local approval application prerequisite. (intro.) Except as provided under par. (c), no No person subject to s. 144.445 289.33 may submit a feasibility report until the latest of the following periods:

(a) At least 120 days after the person submits applications for all applicable local approvals specified as required by the municipality under sub. (1m) (b) s. 289.22 (1m).

(c) At least 120 days after the deadline for the municipal response under sub. (1m) (b) s. 289.22 (1m) if the municipality does not respond within that time limit.

227,548 Section 548 . 144.44 (2) (c) of the statutes is repealed.

Note: Section 144.44 (2) (c) currently reads as follows:

“144.44 (2) (c) No prerequisite for certain mining facilities. An operator engaged in mining, as defined under s. 144.81 (5), on May 21, 1978, may, but is not required to, submit a feasibility report for any solid waste disposal facility for waste resulting from those mining operations."

At the time this statute was enacted, there were existing mining facilities that had been in operation prior to May 21, 1978. All of these mines have now been closed, so this provision is no longer necessary.

227,549 Section 549. 144.44 (2) (d) and (e) of the statutes are renumbered 289.23 (3) and (5) and amended to read:

289.23 (3) Compliance required . No person may construct a solid waste disposal facility or a hazardous waste facility unless the person complies with the requirements of this subsection ss. 289.23 to 289.29.

(5) Notification of proposed facility. Immediately upon receipt of a feasibility report the department shall send a notice to the persons specified under sub. (4m) s. 289.32 containing a brief description of the proposed facility and a statement that the applicant is required to send a copy of the feasibility report after it is determined to be complete by the department.

227,550 Section 550 . 144.44 (2) (f), (fm) and (g) of the statutes are renumbered 289.24 (1), (2) and (3), and 289.24 (1) (intro.), (c) and (f) and (2) (intro.), as renumbered, are amended to read:

289.24 (1) Contents of feasibility reports; preparation. (intro.) The department shall specify by rule the minimum contents of a feasibility report and no report is complete unless the specified information is provided by the applicant. In addition to the requirements specified under par. (fm) sub. (2), the rules may specify special requirements for a feasibility report relating to any hazardous waste facility. The department may require a feasibility report to be prepared by a registered professional engineer. A feasibility report shall include:

(c) A description of how the proposed facility relates to any applicable county solid waste management plan approved under s. 144.437 289.10.

(f) Sufficient information to make the determination of need for the facility under this subsection s. 289.28 unless the facility is exempt under par. (nr) s. 289.28 (2).

(2) Certain hazardous waste facilities; additional requirements. (intro.) A feasibility report for a hazardous waste disposal facility or surface impoundment, as defined in s. 291.37 (1) (d), shall include a list of all persons living within 0.5 mile of the facility and information reasonably ascertainable by the applicant on the potential for public exposure to hazardous waste or hazardous constituents through releases from the facility including, but not limited to, the following:

227,551 Section 551 . 144.44 (2) (h) of the statutes is renumbered 289.23 (4) and amended to read:

289.23 (4) Distribution of feasibility report. At the same time an applicant submits a feasibility report to the department, the applicant shall submit a copy of that feasibility report to each participating municipality under s. 144.445 289.33 (6) (b). Immediately after the applicant receives notification of the department's determination that the feasibility report is complete, the applicant shall distribute copies of the feasibility report to the persons specified under sub. (4m).

Note: The remainder of current s. 144.44 (2) (h) is located in new s. 289.24 (4).

227,552 Section 552 . 144.44 (2) (i), (j) and (k) of the statutes are renumbered 289.25 (1), (2) and (3), and 289.25 (2) and (3), as renumbered, are amended to read:

289.25 (2) Environmental impact statement process. If an environmental impact statement is required, the department shall conduct the hearing required under s. 1.11 (2) (d) in an appropriate place it designates in a county, city, village or town which would be substantially affected by the operation of the proposed facility. The hearing on the environmental impact statement is not a contested case. The department shall issue its determination of the adequacy of the environmental impact statement within 30 days after the close of the hearing. Except as provided under s. 144.836 293.43, the department shall complete any environmental impact statement process required under s. 1.11 before proceeding with the feasibility report review process under par. (k) sub. (3) and subs. (2g) and (2r) ss. 289.26 and 289.27.

(3) Notification on feasibility report and preliminary environmental impact statement decisions. Immediately after the department issues a preliminary determination that an environmental impact statement is not required or, if it is required, immediately after the department issues the environmental impact statement, the department shall publish a class 1 notice under ch. 985 in the official newspaper designated under s. 985.04 or 985.05 or, if none exists, in a newspaper likely to give notice in the area of the proposed facility. The notice shall include a statement that the feasibility report and the environmental impact statement process are complete. The notice shall invite the submission of written comments by any person within 30 days after the notice for a solid waste disposal facility or within 45 days after the notice for a hazardous waste facility is published. The notice shall describe the methods by which a hearing may be requested under pars. (L) and (m) ss. 289.26 (1) and 289.27 (1). The department shall distribute copies of the notice to the persons specified under sub. (4m) s. 289.32.

227,553 Section 553 . 144.44 (2) (L) of the statutes is renumbered 289.26 (1) and amended to read:

289.26 (1) Request for an informational hearing. Within 30 days after the notice under par. (k) s. 289.25 (3) is published for a solid waste disposal facility, or within 45 days after the notice under par. (k) s. 289.25 (3) is published for a hazardous waste facility, any county, city, village or town, the applicant or any 6 or more persons may file a written request for an informational hearing on the matter with the department. The request shall indicate the interests of the municipality or persons who file the request and state the reasons why the hearing is requested.

227,554 Section 554 . 144.44 (2) (m) of the statutes is renumbered 289.27 (1), and 289.27 (1) (intro.), as renumbered, is amended to read:

289.27 (1) Request for treatment as a contested case. (intro.) Within 30 days after the notice under par. (k) s. 289.25 (3) is published for a solid waste disposal facility, or within 45 days after the notice under par. (k) s. 289.25 (3) is published for a hazardous waste facility, any county, city, village or town, the applicant or any 6 or more persons may file a written request that the hearing under par. (L) s. 289.26 (1) be treated as a contested case, as provided under s. 227.42. A county, city, village or town, the applicant or any 6 or more persons have a right to have the hearing treated as a contested case only if:

227,555 Section 555 . 144.44 (2) (n) of the statutes is renumbered 289.29 (1), and 289.29 (1) (a) and (c), as renumbered, are amended to read:

289.29 (1) (a) A determination of feasibility shall be based only on ss. 144.43 to 144.47 this chapter and 144.60 to 144.74 ch. 291 and rules promulgated under those sections chapters. A determination of feasibility for a facility for the disposal of metallic mining waste shall be based only on ss. 144.43 to 144.47 this chapter and 144.60 to 144.74 ch. 291 and rules promulgated under those sections chapters with special consideration given to s. 144.435 289.05 (2) and rules promulgated under that section.

(c) The department may receive into evidence at a hearing conducted under sub. (2g) or (2r) s. 289.26 or 289.27 any environmental impact assessment or environmental impact statement for the facility prepared under s. 1.11 and any environmental impact report prepared under s. 23.11 (5). The adequacy of the environmental impact assessment, environmental impact statement or environmental impact report is not subject to challenge at that hearing.

227,556 Section 556 . 144.44 (2) (nm) of the statutes is renumbered 289.28 (1), and 289.28 (1) (intro.), (c) 1. and 2. and (d), as renumbered, are amended to read:

289.28 (1) Determination of need; issues considered. (intro.) A feasibility report shall contain an evaluation to justify the need for the proposed facility unless the facility is exempt under par. (nr) sub. (2). The department shall consider the following issues in evaluating the need for the proposed facility:

(c) 1. Approved facilities, as defined under s. 144.441 (1) (a), including the potential for expansion of those facilities on contiguous property already owned or controlled by the applicant.

2. Nonapproved facilities, as defined under s. 144.442 (1) (c), which are environmentally sound. It is presumed that a nonapproved facility is not environmentally sound unless evidence to the contrary is produced.

(d) If the need for a proposed municipal facility cannot be established under subds. 1. to 3. pars. (a) to (c), the extent to which the proposed facility is needed to replace other facilities of that municipality at the time those facilities are projected to be closed in the plans of operation.

227,557 Section 557 . 144.44 (2) (nr) of the statutes is renumbered 289.28 (2), and 289.28 (2) (intro.) and (a), as renumbered, are amended to read:

289.28 (2) Determination of need; exempt facilities. (intro.) Paragraphs (f) 6., (n) 4., (nm) and (om) Subsections (1) and (3) and ss. 289.24 (1) (f) and 289.29 (1) (d) do not apply to: