289.33(10)(q)
(q)
Award is binding; approval not required. If the applicant constructs and operates the facility, the arbitration award is binding on the applicant and the participating municipalities and does not require approval by the participating municipalities.
289.33(10)(r)
(r)
Applicability of arbitration statutes. Sections 788.09 to
788.15 apply to arbitration awards under this subsection.
289.33(10)(s)
(s)
Environmental impact. An arbitration award under this subsection is not a major state action under
s. 1.11 (2).
289.33(11)
(11) Successors in interest. Any provision in a negotiated agreement or arbitration award is enforceable by or against the successors in interest of any person directly affected by the award. A personal representative may recover damages for breach for which the decedent could have recovered.
289.33(12)(a)1.1. This section applies to new or expanded solid waste disposal facilities for which an initial site report is submitted after March 15, 1982, or, if no initial site report is submitted, for which a feasibility report is submitted after March 15, 1982.
289.33(12)(a)2.
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 this chapter or by rule promulgated by the department.
289.33(12)(b)1.1. This section applies to all new or expanded hazardous waste facilities for which an initial site report is submitted after March 15, 1982, or, if no initial site report is submitted, for which a feasibility report is submitted after March 15, 1982.
289.33(12)(b)2.
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. 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.
289.33(12)(b)3.
3. Only
subs. (3) and
(5) (a) to
(c) and
(e) apply to a hazardous waste treatment or storage facility which accepts waste only from the licensee.
289.33(12)(c)
(c)
Existing solid waste disposal facilities or hazardous waste facilities. 289.33(12)(c)1.1. This section applies to an existing solid waste disposal facility or hazardous waste facility which shall be treated as a new or expanded facility upon the adoption of a siting resolution by any affected municipality under
sub. (6):
289.33(12)(c)1.a.
a. At any time during the life of a solid waste disposal facility or a hazardous waste facility if the owner or operator and one or more affected municipalities agree to negotiate and arbitrate under this section.
289.33(12)(c)1.b.
b. When a negotiated settlement or arbitration award under this section provides for the reopening of negotiations.
289.33(12)(c)1.c.
c. At any time after the date specified in the feasibility report, if such a date has been specified under
s. 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.
289.33(12)(c)2.
2. Except as provided under
subd. 1. and
pars. (a),
(b) and
(d), only
subs. (3) and
(5) (a) and
(b) apply to an existing solid waste disposal facility or a hazardous waste facility.
289.33(12)(d)
(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. 293.45 or
293.49.
289.33 Cross-reference
Cross-reference: See also
WFSB, Wis. adm. code.
289.33 Annotation
Design features that affect the operation of a facility are subject to arbitration under s. 144.445 (8) (b) [now s. 289.33 (8) (b)]. Madison Landfills v. Libby Landfill,
188 Wis. 2d 613,
524 N.W.2d 833 (Ct. App. 1993).
289.33 Annotation
Only local approvals that arbitrarily or discriminatorily obstruct the establishment of a waste facility may be set aside by an arbitration award under s. 144.445 [now s. 289.33]. Madison Landfills v. Libby Landfill,
188 Wis. 2d 613,
524 N.W.2d 833 (Ct. App. 1993).
289.33 Annotation
Wisconsin's landfill negotiation/arbitration statute. Ruud and Werner, WBB Nov. 1985.
289.33 Annotation
Down in the dumps and wasted: The need determination in the Wisconsin landfill siting process. 1987 WLR 543.
289.34
289.34
Noncompliance with plans or orders. 289.34(1)
(1) In this section, “applicant" means any natural person, partnership, association or body politic or corporate that seeks to construct a solid waste disposal facility or hazardous waste facility under
ss. 289.21 to
289.32.
289.34(2)
(2) The department may not issue a favorable determination of feasibility, approve a plan of operation or issue an operating license for a solid waste disposal facility or hazardous waste facility if the applicant or any person owning a 10 percent or greater legal or equitable interest in the applicant or the assets of the applicant either:
289.34(2)(a)
(a) Is named in and subject to a plan approved, or an order issued, by the department regarding any solid waste facility or hazardous waste facility in this state and is not in compliance with the terms of the plan or order; or
289.34(2)(b)
(b) Owns or previously owned a 10 percent or greater legal or equitable interest in a person or the assets of a person who is named in and subject to a plan approved, or an order issued, by the department regarding any solid waste facility or hazardous waste facility in this state and the person is not in compliance with the terms of the plan or order.
289.34(3)
(3) Subsection (2) does not apply if the person named in and subject to the plan or order provides the department with proof of financial responsibility ensuring the availability of funds to comply with the plan or order using a method under
s. 289.41.
289.34 History
History: 1995 a. 227 s.
572.
289.35
289.35
Shoreland and floodplain zoning. Solid waste facilities are prohibited within areas under the jurisdiction of shoreland and floodplain zoning regulations adopted under
ss. 59.692,
61.351,
61.353,
62.231,
62.233,
87.30, and
281.31, except that the department may issue permits authorizing facilities in such areas. If the department issues a permit under this section, the permit shall specify the location, height, and size of the solid waste facility authorized under the permit.
289.35 History
History: 1981 c. 374 s.
148;
1983 a. 416 s.
19;
1995 a. 201;
1995 a. 227 s.
638; Stats. 1995 s. 289.35;
2013 a. 1,
80.
289.36
289.36
Acquisition of property by condemnation. 289.36(1)(1)
Definition. In this section, “property" includes any interest in land including an estate, easement, covenant or lien, any restriction or limitation on the use of land other than those imposed by exercise of the police power, any building, structure, fixture or improvement and any personal property directly connected with land.
289.36(2)
(2) Property may be condemned. Notwithstanding
s. 32.03, property intended for use as a solid or hazardous waste facility may be condemned if all of the following conditions are met:
289.36(2)(a)
(a) The entity proposing to acquire the property for use as a solid or hazardous waste facility has authority to condemn property for this purpose.
289.36(2)(b)
(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. 289.29.
289.36(2)(c)
(c) The property is acquired by purchase, lease, gift or condemnation by a municipality, public board or commission or any other entity, except for the state, so as to bring the property within the limitations on the exercise of the general power of condemnation under
s. 32.03 within:
289.36(2)(c)1.
1. Five years prior to the determination of feasibility if a determination of feasibility is required for the facility under
s. 289.29.
289.36(2)(c)2.
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. 289.29.
289.36 History
History: 1981 c. 374;
1995 a. 227 s.
628; Stats. 1995 s. 289.36.
LONG-TERM CARE; FINANCIAL RESPONSIBILITY; OPERATION; WAIVERS; EXEMPTIONS; CLOSURE
289.41
289.41
Financial responsibility. 289.41(1)
(1)
Definitions. As used in this section:
289.41(1)(am)
(am) “Capital expenditures" means any increase in the fixed assets made during a company's fiscal year.
289.41(1)(b)1.
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. 289.31 or
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.
289.41(1)(b)2.
2. Any business operated for profit and any public utility that is required to perform corrective action under
s. 291.37.
289.41(1)(c)
(c) “Net worth" means the amount of a company's total tangible assets less the company's total liabilities.
289.41(1)(d)
(d) “Public utility" means a public utility as defined in
s. 196.01 (5) or an electric cooperative organized under
ch. 185.
289.41(1)(e)
(e) “Sinking fund" means principal debt payments made during a company's fiscal year.
289.41(1)(f)
(f) “Tangible assets" means total assets less intangible assets such as goodwill, patents and trademarks.
289.41(1m)
(1m) Long-term care and financial responsibility; termination. 289.41(1m)(b)1.1. Except as provided in
subd. 2. or
2m., the owner of an approved facility shall maintain proof of financial responsibility as provided in this section during the operation of the approved facility and for 40 years after the closing of the approved facility unless the obligation is extended under
par. (f).
289.41(1m)(b)2.
2. The owner of an approved facility which ceased to accept solid waste and permanently terminated disposal operations before August 15, 1991, shall maintain proof of financial responsibility as provided in this section for the period specified in the approved plan of operation.
289.41(1m)(b)2m.
2m. The owner of an approved mining facility that commences operation after June 14, 1996, shall maintain proof of financial responsibility as provided in this section during the operation of the approved mining facility and after the closing of the approved mining facility. The owner's obligation to maintain proof of financial responsibility terminates only as provided in
par. (g).
289.41(1m)(b)3.
3. Except as provided in
subd. 4., the owner of a nonapproved facility that receives or has received household waste shall maintain proof of financial responsibility as provided in this section during the operation of the nonapproved facility and for 40 years after the closing of the nonapproved facility unless the obligation is extended under
par. (f).
289.41(1m)(b)4.
4. The owner of a nonapproved facility that ceases to accept solid waste and permanently terminates disposal operations before October 9, 1993, is not required to maintain proof of financial responsibility.
289.41(1m)(c)
(c)
Long-term care responsibility for approved facilities. Notwithstanding s.
144.441 (2) (c) 1., 1989 stats., the owner's responsibility for the long-term care of an approved facility does not terminate, except that if another person acquires the rights of ownership and is issued under
s. 289.46 (1) a new operating license for the approved facility, the owner's responsibility is transferred to that other person upon the issuance of the new operating license.
289.41(1m)(f)
(f)
Extension of obligation to provide proof of financial responsibility. If the department determines that it is necessary to protect human health or the environment, the department may require the owner of a solid or hazardous waste disposal facility to provide proof of financial responsibility for the long-term care of the facility for more than 40 years. The department shall notify the owner of the extended obligation to provide proof of financial responsibility before the expiration of the original 40-year period. The department shall promulgate rules establishing the procedure used to determine if it is necessary to protect human health or the environment.
289.41(1m)(g)
(g)
Proof of financial responsibility for approved mining facility; termination. 289.41(1m)(g)1.1. The owner of an approved mining facility may apply, at any time at least 40 years after the closing of the facility, to the department for termination of the owner's obligation to maintain proof of financial responsibility for long-term care of the facility. Upon receipt of an application under this subdivision, 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 facility, shall publish the notice on its Internet Web site, and shall provide the notice, upon request, to interested members of the public. The department's notice to interested members of the public may be given through an electronic notification system established by the department. The notice shall include a statement that the owner has applied to terminate the owner's obligation to maintain proof of financial responsibility for the long-term care of the facility, the name and address of the owner, and information indicating where the full text of the application may be viewed on the department's Internet Web site. The notice shall invite the submission of written comments by any person within 30 days after the notice is published. The notice shall describe the methods by which a hearing may be requested under
subds. 2. and
3. The department shall distribute a copy of the notice to the owner of the facility. In any hearing on the matter, the burden is on the owner to prove by a preponderance of the evidence that continuation of the requirement to provide proof of financial responsibility for long-term care is not necessary for adequate protection of human health or the environment. Within 120 days after the publication of the notice or within 60 days after any hearing is adjourned, whichever is later, the department shall determine whether proof of financial responsibility for long-term care of the facility continues to be required. For the purpose of determining the date on which notice is provided under this subdivision, the date on which the department first publishes the notice on its Internet Web site shall be considered the date of notice. A determination that proof of financial responsibility for long-term care is no longer required terminates the owner's obligation to maintain proof of financial responsibility for long-term care. The owner may not submit another application under this subdivision until at least 5 years after the previous application has been rejected by the department.
289.41(1m)(g)2.
2. Within 30 days after the notice under
subd. 1. is published, 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.
289.41(1m)(g)3.
3. Within 30 days after the notice under
subd. 1. is published, any county, city, village or town, the applicant or any 6 or more persons may file a written request that the hearing under
subd. 2. 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 all of the following apply:
289.41(1m)(g)3.a.
a. A substantial interest of the person requesting the treatment of the hearing as a contested case is injured in fact or threatened with injury by the department's action or inaction on the matter.
289.41(1m)(g)3.b.
b. The injury to the person requesting the treatment of the hearing as a contested case is different in kind or degree from injury to the general public caused by the department's action or inaction on the matter.
289.41(2)
(2) Requirement for financial responsibility. 289.41(2)(a)(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
sub. (1m) (b) or under
sub. (1m) (f).
289.41(2)(b)
(b)
Hazardous waste storage and treatment facilities. The owner or operator of a hazardous waste storage or treatment facility shall maintain proof of financial responsibility ensuring the availability of funds for compliance with all closure requirements specified in the plan of operation.
289.41(2)(c)
(c)
Hazardous waste disposal, storage and treatment facilities. If corrective action is required under
s. 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.
289.41(2)(d)
(d)
Unlicensed hazardous waste facilities. The owner or operator of an unlicensed hazardous waste facility subject to
s. 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.
289.41(3)
(3) Standard methods of establishing proof of financial responsibility. 289.41(3)(a)(a)
Standard methods. The owner or operator of a facility may establish proof of financial responsibility required under
sub. (2) (a) to
(d) by obtaining any of the following made payable to or established for the benefit of the department and approved by the department:
289.41(3)(a)3.
3. An established escrow account, the assets of which may include the following:
289.41(3)(a)3.b.
b. Debt securities issued by a commission, board, agency, or other instrumentality of the federal government that have a rating that is the highest rating category assigned by Standard & Poor's Corporation, Moody's Investors Service, or other similar nationally recognized rating agency.
289.41(3)(a)3.d.
d. Corporate bonds that have a rating that is the highest rating category assigned by Standard & Poor's Corporation, Moody's Investors Service, or other similar nationally recognized rating agency. Corporate bonds may not be used to provide more than 50 percent of the required amount of proof of financial responsibility.
289.41(3)(a)4m.
4m. An irrevocable trust, the corpus of which may include the following:
289.41(3)(a)4m.b.
b. Debt securities issued by a commission, board, agency, or other instrumentality of the federal government that have a rating that is the highest rating category assigned by Standard & Poor's Corporation, Moody's Investors Service, or other similar nationally recognized rating agency.
