Chapter 287

287.095(2) (2) Exemption from liability. No responsible unit official is liable for civil damages as a result of good faith actions taken by the responsible unit official within the scope of duties relating to the responsible unit’s recycling program or recycling site or facility.

287.095 History History: 1989 a. 335; 1995 a. 227 s. 892; Stats. 1995 s. 287.095.

287.10 287.10 Limit on local regulation. No responsible unit that accepts funds under s. 287.23 or county or municipality located within such a responsible unit may impose a restriction, except one that is consistent with this chapter or ch. 100, or a tax or fee on the sale or distribution of packaging for a purpose relating to the disposal of the packaging.

287.10 History History: 1989 a. 335; 1995 a. 227 s. 893; Stats. 1995 s. 287.10.

287.11 287.11 Effective recycling programs.

287.11(1) (1) Department review. Upon request of a responsible unit, the department shall review documentation of the responsible unit’s solid waste management program created under s. 287.09 (2) (a) and determine whether the program is an effective recycling program. The department shall complete its review and make a determination within 90 days after receiving the documentation.

287.11(2) (2) Effective program criteria for responsible units. A responsible unit’s solid waste management program is an effective recycling program if it includes all of the following:

287.11(2)(a) (a) A public education component to inform residents of the region of the reasons to recycle, local opportunities to recycle and the prohibitions in s. 287.07 (3) and (4).

287.11(2)(b) (b) A requirement that the occupants of single-family residences, buildings containing 2 or more dwelling units and commercial, retail, industrial and governmental facilities in the region separate the materials identified in s. 287.07 (3) and (4) from postconsumer waste generated in the region.

287.11(2)(c) (c) A requirement that owners of buildings containing 5 or more dwelling units in the region do all of the following:

287.11(2)(c)1. 1. Provide adequate, separate containers for the program established under par. (b).

287.11(2)(c)2. 2. Notify tenants at the time of renting or leasing the dwelling and semiannually thereafter of the programs under this paragraph and par. (b).

287.11(2)(c)3. 3. Provide for the collection of recyclable materials separated from solid waste by the tenants and the delivery of the recyclable materials to a recycling facility.

287.11(2)(d) (d) A requirement that owners of commercial, retail, industrial and governmental facilities in the region do all of the following:

287.11(2)(d)1. 1. Provide adequate, separate containers for the program established under par. (b).

287.11(2)(d)2. 2. Regularly notify all users and occupants of the facilities of the programs under this paragraph and par. (b).

287.11(2)(d)3. 3. Provide for the collection of recyclable materials separated from solid waste by the users and occupants and the delivery of the recyclable materials to a recycling facility.

287.11(2)(e) (e) A system for collecting from single-family residences in the region any materials separated pursuant to par. (b).

287.11(2)(em) (em) A system for the processing and marketing of recyclable materials collected by the responsible unit or by municipalities located in the responsible unit.

287.11(2)(er) (er) A prohibition on disposing of in a solid waste disposal facility or burning in a solid waste treatment facility any material identified under s. 287.07 (3) and (4) that is separated for recycling as part of the program.

287.11(2)(ew) (ew) Provisions for the management of postconsumer waste that is not separated for recycling or recovery under par. (b) consistent with the highest feasible priority under s. 287.05 (12).

287.11(2)(f) (f) Other provisions established by the department by rule.

287.11(2)(g) (g) Adequate enforcement of the programs established under pars. (b) to (f).

287.11(2)(h) (h) The equipment or means necessary to implement pars. (a), (b), (e), (em) and (g), including contracts for service, staff, supplies and equipment from vendors.

287.11(2)(i) (i) A reasonable effort, through the implementation of pars. (a) to (h), as applicable, to reduce to the maximum extent feasible the amount, by weight, of each material specified in s. 287.07 (3) and (4) that is generated as solid waste within the region and disposed of in a solid waste disposal facility or converted into fuel or burned without energy recovery in a solid waste treatment facility.

287.11(2m) (2m) Variance.

287.11(2m)(a) (a) In this subsection:

287.11(2m)(a)1. 1. “Cost of disposing of processed material” means the gross cost of transferring processed material to a solid waste disposal facility and disposing of the processed material in the facility, including any disposal costs not paid through fees charged by the facility.

287.11(2m)(a)2. 2. “Cost of selling processed material” means the net cost, including any storage costs, of selling processed material to a broker, dealer, or manufacturing facility, plus any cost of transporting the processed material from the waste processing facility to the destination specified by the broker, dealer, or manufacturing facility, less the portion of any state financial assistance received under s. 287.23 attributable to the processed material.

287.11(2m)(a)3. 3. “Processed material” means a component of solid waste that has been collected, transported to a waste processing facility and prepared for sale to a broker, dealer or manufacturer.

287.11(2m)(b) (b) The department shall, at the request of a responsible unit that has been determined to have an effective recycling program under this section, grant a variance to the applicable requirements in sub. (2) (b) and (er) for up to one year for a material identified in s. 287.07 (3) or (4) that is generated in the responsible unit’s region if the department determines that the cost of selling processed material exceeds any of the following:

287.11(2m)(b)1. 1. Forty dollars per ton of processed material, as annually adjusted by the department to reflect changes in price levels due to inflation since 1989.

287.11(2m)(b)2. 2. The cost of disposing of processed material.

287.11(2m)(c) (c) The department may on its own initiative grant, to one or more responsible units that have been determined to have effective recycling programs under this section, a variance to the applicable requirements in sub. (2) (b) and (er) for up to one year for a material identified in s. 287.07 (3) or (4) that is generated in the responsible units’ regions if the department determines that the cost of selling processed material exceeds the amount under par. (b) 1. or 2.

287.11(2p) (2p) Materials excepted from prohibitions on land disposal and incineration.

287.11(2p)(a) (a) The requirements of sub. (2) (b) and (er) do not apply to a material that is subject to an exception under s. 287.07 (7) (b), (bg) or (c) or a waiver or conditional waiver under s. 287.07 (7) (h).

287.11(2p)(b) (b) The requirements of sub. (2) (er) do not apply to a material that is subject to an exception under s. 287.07 (7) (f) or a waiver or conditional waiver under s. 287.07 (7) (g).

287.11(2p)(c) (c) The department may grant a responsible unit an exception to an applicable requirement in sub. (2) (b) or (er) for up to one year for a material that is subject to an exception under s. 287.07 (7) (d).

287.11(2p)(d) (d) A responsible unit may not prohibit the beneficial reuse of a material within a solid waste disposal facility if the beneficial reuse of the material is approved in the solid waste disposal facility’s plan of operation under s. 289.30.

287.11(2p)(e) (e) A responsible unit may not prohibit the disposal in a solid waste disposal facility or the burning in a solid waste treatment facility of any material for which the department has granted a waiver or conditional waiver under s. 287.07 (7) (g).

287.11(2s) (2s) Notification.

287.11(2s)(a) (a) The department shall notify the department of agriculture, trade and consumer protection whenever variances granted under sub. (2m) (b) for a plastic container, foam polystyrene packaging or any type of packaging that contains carbonated or malt beverages are in effect for responsible units representing 25 percent or more of the state’s population.

287.11(2s)(b) (b) The department shall notify the department of agriculture, trade and consumer protection if, within 2 years after providing notification under par. (a) for a packaging material, the condition under par. (a) no longer exists for that packaging material.

287.11(3) (3) List. The department shall prepare and periodically update a list of responsible units that have an effective recycling program.

287.11 History History: 1989 a. 335, 359; 1993 a. 245, 345; 1995 a. 142; 1995 a. 227 s. 894; Stats. 1995 s. 287.11; 1997 a. 27, 60; 1999 a. 9; 2001 a. 16; 2003 a. 321; 2011 a. 32; 2013 a. 166.

287.11 Note Note: The 7th circuit court of appeals in National Solid Waste Management Assn. v. Meyer, 165 F.3d 1151 (1999), held unconstitutional the requirement that out-of-state waste may not be disposed of in this state unless the originating community enacts an ordinance in compliance with Wisconsin’s recycling program.

287.11 Cross-reference Cross-reference: See also chs. NR 542 and 544, Wis. adm. code.

287.13 287.13 Municipal waste flow control; required use of recycling or resource recovery facility.

287.13(1) (1) Definitions. In this section:

287.13(1)(b) (b) “Collection” means the aggregating of solid waste from its primary source and includes all activities up to such time as the waste is delivered to a facility for transfer, processing or disposal.

287.13(1)(d) (d) “Facilities for the recycling of solid waste or for the recovery of resources from solid waste” means facilities the primary use of which is to convert or recycle solid waste into usable materials, products or energy or to incinerate solid waste for energy recovery.

287.13(1)(e) (e) “Municipality” means a county, a city, a village or a town if the town has a population of 10,000 or more. Notwithstanding the fact that the population of a town is less than 10,000, if the town enters into an agreement with a city or village concerning the establishment of a facility for the recycling of solid waste or for the recovery of resources from solid waste and concerning the required use of that facility, the town shall be considered a municipality except the town may not be the municipality responsible for a facility.

287.13(1)(f) (f) “Local unit of government” includes a county, city, village, town, school district, county utility district, sanitary district or metropolitan sewerage district.

287.13(1)(g) (g) “Person” includes individuals, partnerships, associations, limited liability companies, corporations and local units of government.

287.13(1)(h) (h) “Recycling” means the transfer, transporting, processing, marketing and conversion of solid wastes into usable materials or products and includes the stockpiling and disposal of nonusable portions of solid wastes, but does not include the collection of solid wastes.

287.13(1)(i) (i) “Sewage or industrial waste sludge” means the residue material resulting from the treatment of sewage or industrial waste water.

287.13(2) (2) Required use; implementation procedure. A municipality may require any local unit of government, occupant of a single-family or multifamily residence, retail business, commercial business or industry to use a facility for the recycling of solid waste or for the recovery of resources from solid waste generated within the limits of the municipality which is not exempt under sub. (5) if:

287.13(2)(a) (a) The municipality adopts an initial intent resolution.

287.13(2)(b) (b) The municipality prepares or arranges for the preparation of a comprehensive facility project description report and submits this report to the department.

287.13(2)(c) (c) The municipality determines that required usage of the facility is in the best public interest.

287.13(2)(d) (d) The facility is constructed, operated, maintained, expanded, modified and closed in compliance with this chapter and chs. 281, 285 and 289 to 299 and all necessary permits, licenses and approvals required by the department are obtained.

287.13(2)(e) (e) The municipality adopts a valid solid waste flow control ordinance and issues a required use order.

287.13(3) (3) Required use; joint implementation procedure. Two or more municipalities may enter into an agreement concerning the establishment of a facility for the recycling of solid waste or for the recovery of resources from solid waste and concerning the required use of that facility. The municipalities which enter into this type of agreement may require any local unit of government, occupant of a single-family or multifamily residence, retail business, commercial business or industry to use a facility for the recycling of solid waste or for the recovery of resources from solid waste generated within the limits of those municipalities which is not exempt under sub. (5) if:

287.13(3)(a) (a) Each of the municipalities adopts an initial intent resolution.

287.13(3)(b) (b) The municipality which is responsible for the facility prepares or arranges for the preparation of a comprehensive facility project description report and submits this report to the department.

287.13(3)(c) (c) Each of the municipalities determines that the required use is in the best public interest.

287.13(3)(d) (d) The facility is constructed, operated, maintained, expanded, modified and closed in compliance with this chapter and chs. 281, 285 and 289 to 299 and all necessary permits, licenses and approvals required by the department are obtained.

287.13(3)(e) (e) Each of the municipalities adopts a valid solid waste flow control ordinance and issues a required use order.

287.13(4) (4) Required use; conflicts between municipalities.

287.13(4)(a) (a) Conflicts in nonpopulous counties. If one municipality has a valid initial intent resolution, no other municipality may adopt an initial intent resolution or municipal waste flow control ordinance which covers the same type of solid waste generated in the same recycling or resource recovery area unless the first municipality revises its initial intent resolution or adopts a municipal waste flow control ordinance so that there is no conflict. This paragraph is not applicable to a county with a population of 750,000 or more or to any municipality in this type of county.

287.13(4)(b) (b) Conflicts in a populous county.

287.13(4)(b)1. 1. If a city, a village or a town which is a municipality in a county with a population of 750,000 or more has a valid initial intent resolution, the county may not adopt an initial intent resolution or municipal waste flow control ordinance which covers the same type of solid waste generated in the same recycling or resource recovery area unless the city, a village or a town which is a municipality revises its initial intent resolution or adopts a municipal waste flow control ordinance so that there is no conflict.

287.13(4)(b)2. 2. An initial intent resolution for a county with a population of 750,000 or more is not valid for a city, a village or a town which is a municipality in that county if the city, a village or a town which is a municipality adopts a resolution of refusal to participate in a county waste flow control program within 6 weeks after the county initial intent resolution is adopted and if the city, a village or a town which is a municipality adopts an initial intent resolution of its own within 3 months after the county initial intent resolution is adopted.

287.13(5) (5) Exemption for certain solid wastes. A municipality may not require the use of a facility for:

287.13(5)(a) (a) Solid waste produced by a retail business, commercial business or industry which is privately processed and reused.

287.13(5)(b) (b) Solid waste consisting of scrap, new material or used material which is separated from other waste for sale, reuse or recycling.

287.13(5)(c) (c) Solid waste from a single-family dwelling which is disposed of on or held for disposal on land surrounding the dwelling by a person who owns or leases and occupies the dwelling and owns or leases the surrounding land.

287.13(5)(d) (d) Solid waste which is sewage or industrial waste sludge.

287.13(5)(e) (e) Solid waste produced by a commercial business or industry which is disposed of or held for disposal in an approved facility, as defined under s. 289.01 (3), or a mining waste site, as defined in s. 295.41 (31), covered by a mining permit under s. 295.58, owned or leased by the generator or on which the generator holds an easement and designed and constructed for the purpose of accepting that type of solid waste.

287.13(5)(f) (f) Solid waste received and processed by a recycling or resource recovery facility which exists on January 1, 1984, or for which a feasibility report, a permit application or other application is submitted to the department on or before January 1, 1984.

287.13(5)(g) (g) Solid waste generated within a town if the town voluntarily has entered into an agreement or contract with a city or village for the recycling or the recovery of resources from these wastes and if the city or village has adopted a waste flow control ordinance or if the facility operated by the city or village may receive waste under par. (f).

287.13(5)(h) (h) Solid waste which is a type of waste which the municipality determines is unsuitable for recycling or resource recovery at the facility.

287.13(5)(i) (i) Solid waste that consists of eligible electronic devices, as defined in s. 287.17 (1) (gs), used by households or covered schools.

287.13(6) (6) Initial intent resolution. A municipality may adopt an initial intent resolution at any time except as provided under sub. (4) and except that a municipality may not adopt more than one initial intent resolution covering a specific recycling or resource recovery service area within a 10-year period. An initial intent resolution remains valid only if a comprehensive facility project description report is submitted within 2 years after that resolution is adopted and if a municipal waste flow control ordinance is adopted within 5 years after that resolution is adopted. An initial intent resolution shall include:

287.13(6)(a) (a) A statement of the municipality’s intention to establish or utilize or to contract for the establishment or utilization of a facility for the recycling of solid waste or for the recovery of resources from solid waste or, if the municipality enters into an agreement under sub. (3) but is not the responsible municipality, a statement of the municipality’s intention to participate in that project.

287.13(6)(b) (b) A statement of the municipality’s intention to adopt a solid waste flow control ordinance.

287.13(6)(c) (c) A description of the types of solid waste which may be subject to the ordinance.

287.13(6)(d) (d) A description of the anticipated recycling or resource recovery area which may be subject to the ordinance.

287.13(7) (7) Comprehensive facility project description report. After an initial intent resolution is adopted and prior to the adoption of a waste flow control ordinance, the responsible municipality is required to prepare or arrange for the preparation of a comprehensive facility project description report and submit it to the department for review in order to assess the environmental regulatory permits, licenses and approvals required for the facility and to determine the acceptability of the proposed effective period. At a minimum, this report shall include: