Chapter 289

289.33(9)(b) (b) Determination of negotiability. Either party may petition the board in writing for a determination as to whether a proposal is excluded from negotiation under sub. (8) (a). A petition may be submitted to the board before a proposal is offered in negotiation. A petition may not be submitted to the board later than 7 days after the time a proposal is offered for negotiation. The board shall conduct a hearing on the matter and issue its decision within 14 days after receipt of the petition. The decision of the board is binding on the parties and is not subject to judicial review. Negotiation on any issue, including issues subject to a petition under this paragraph, may continue pending the issuance of the board’s decision.

289.33(9)(c) (c) Mediation. Negotiating sessions may be conducted with the assistance of a mediator if mediation is approved by both the applicant and the local committee. Either the applicant or the local committee may request a mediator at any time during negotiation. The function of the mediator is to encourage a voluntary settlement by the applicant and the local committee. The mediator may not compel a settlement. The board shall provide the applicant and the local committee with the names and qualifications of persons willing to serve as mediators. If the applicant and the local committee cannot agree on the selection of a mediator, the applicant and the local committee may request the board to appoint a mediator.

289.33(9)(d) (d) Mediation costs. The mediator shall submit a statement of his or her costs to the applicant, the local committee and the board. Except as otherwise specified in the negotiated agreement or the arbitration award under sub. (10), the costs of the mediator shall be shared equally between the applicant and the local committee. The local committee’s share of the mediator’s costs shall be divided among the participating municipalities in proportion to the number of members appointed to the local committee by each participating municipality.

289.33(9)(e) (e) Failure to participate; default. Failure of the applicant or the local committee to participate in negotiating sessions constitutes default except as provided in this paragraph. It is not default if the applicant or the local committee fails to participate in negotiating sessions either for good cause or if further negotiations cannot be reasonably expected to result in a settlement. Either party may petition the board in writing for a determination as to whether a given situation constitutes default. The board shall conduct a hearing in the matter. Notwithstanding s. 227.03 (2), the decision of the board on default is subject to judicial review under ss. 227.52 to 227.58. If the applicant defaults, the applicant may not construct the facility. If the local committee defaults, the applicant may continue to seek state approval of the facility, is not required to continue to negotiate or arbitrate under this section and the facility is not subject to any local approval, notwithstanding sub. (5).

289.33(9)(em) (em) Default hearing costs. The board shall submit to the applicant and local committee a statement of the costs of a hearing held under par. (e) to determine whether the failure of an applicant or a local committee to participate in the negotiation sessions under this subsection constitutes default. Except as otherwise specified in an arbitration award, the costs of a hearing to determine whether a given situation constitutes default shall be shared between the applicant and the local committee. The local committee’s share of the hearing costs shall be divided among the participating municipalities in proportion to the number of members appointed to the local committee by each participating municipality.

289.33(9)(f) (f) Submission of certain items to the department. Any item proposed to be included in a negotiated agreement which affects an applicant’s responsibilities under an approved feasibility report or plan of operation may be submitted to the department for consideration. An item may be submitted to the department under this paragraph after agreement on the item is reached by the applicant and the local committee either during or at the conclusion of negotiation. The department shall approve or reject items submitted under this paragraph within 2 weeks after receipt of the item. The department shall reject those items which would make the applicant’s responsibilities less stringent than required under the approved feasibility report or plan of operation. The department shall provide written reasons for the rejection. Items which are rejected may be revised and resubmitted. The department may incorporate all items which are not rejected under this paragraph into the approved feasibility report or the plan of operation. The department shall inform the applicant, the local committee and the board of its decisions under this paragraph.

289.33(9)(g) (g) Written agreement. All issues subject to negotiation which are resolved to the satisfaction of both the applicant and the local committee and, if necessary, are approved by the department under par. (f), shall be incorporated into a written agreement.

289.33(9)(h) (h) Public hearings. The local committee may hold public hearings at any time concerning the agreement in any town, city or village where all or a portion of the facility is to be located.

289.33(9)(i) (i) Submission for approval. Within 2 weeks after approval of the written agreement by the applicant and the local committee, the local committee shall submit the negotiated agreement to the appropriate governing bodies for approval.

289.33(9)(j) (j) Appropriate governing bodies for approval. If the local committee includes members from a town, city or village where all or a portion of the facility is to be located, the appropriate governing bodies consist of the governing body of each town, city or village where all or a portion of the facility is to be located with members on the local committee. If the local committee does not include members from any town, city or village where all or a portion of the facility is to be located, the appropriate governing bodies consist of the governing body of each participating town, city or village.

289.33(9)(k) (k) Approval. If the local committee includes members from any town, city or village where all or a portion of the facility is to be located and if the negotiated agreement is approved by resolution by each of the appropriate governing bodies, the negotiated agreement is binding on all of the participating municipalities but if the negotiated agreement is not approved by any appropriate governing body, the negotiated agreement is void. If the local committee does not include members from any town, city or village where all or a portion of the facility is to be located and if the negotiated agreement is approved by resolution by all of the appropriate governing bodies, the agreement is binding on all of the participating municipalities but if the negotiated agreement is not approved by all of the appropriate governing bodies, the negotiated agreement is void.

289.33(9)(L) (L) Submission of agreement to board and department. The applicant shall submit a copy or notice of any negotiated agreement approved under par. (k) to the board and the department by mail within 10 days after the agreement is approved.

289.33(10) (10) Arbitration.

289.33(10)(a) (a) Joint petition for arbitration. If agreement is not reached on any items after a reasonable period of negotiation, the applicant and the local committee may submit a joint written petition to the board to initiate arbitration under this subsection.

289.33(10)(b) (b) Unilateral petition for arbitration. Either the applicant or the local committee may submit an individual written petition to the board to initiate arbitration under this subsection but not earlier than 120 days after the local committee is appointed under sub. (7) (a).

289.33(10)(c) (c) Decision concerning arbitration. Within 15 days after receipt of a petition to initiate arbitration, the board shall issue a decision concerning the petition and notify the applicant and the local committee of that decision.

289.33(10)(d) (d) Order to continue negotiation. The board may issue a decision ordering the applicant and the local committee to continue negotiating for at least 30 days after the date of the notice if, in the judgment of the board, arbitration can be avoided by the negotiation of any remaining issues. If the board issues a decision ordering the applicant and the local committee to continue negotiation, the petition to initiate arbitration may be resubmitted after the extended period of negotiation.

289.33(10)(e) (e) Decision to delay arbitration pending submittal of feasibility report. The board may issue a decision to delay the initiation of arbitration until the department notifies the board that it has received a feasibility report for the facility proposed by the applicant. The board may decide to delay the initiation of arbitration under this paragraph if the applicant has not made available information substantially equivalent to that in a feasibility report. The petition to initiate arbitration may be resubmitted after the feasibility report is submitted.

289.33(10)(f) (f) Order for final offers. The board may issue a decision ordering the applicant and the local committee to submit their respective final offers to the board within 90 days after the date of the notice.

289.33(10)(g) (g) Failure to submit final offer. If the local committee fails to submit a final offer within the time limit specified under par. (f), the applicant may continue to seek state approval of the facility, is not required to continue to negotiate or arbitrate under this section and the facility is not subject to any local approval, notwithstanding sub. (5). If the applicant fails to submit a final offer within the time limit specified under par. (f), the applicant may not construct or operate the facility.

289.33(10)(h) (h) Final offers. A final offer shall contain the final terms and conditions relating to the facility proposed by the applicant or the local committee and any information or arguments in support of the proposals. Additional supporting information may be submitted at any time.

289.33(10)(i) (i) Issues and items in final offer. A final offer may include only issues subject to arbitration under sub. (8). A final offer may include only items offered in negotiation except that a final offer may not include items settled by negotiation and approved under sub. (9) (k).

289.33(10)(j) (j) Continued negotiation; revised final offers. Negotiation may continue during the arbitration process. If an issue subject to negotiation is resolved to the satisfaction of both the applicant and the local committee and, if necessary, is approved by the department under sub. (9) (f), it shall be incorporated into a written agreement and the final offers may be amended as provided under par. (n).

289.33(10)(k) (k) Public hearings. The local committee may conduct public hearings on the proposed final offer prior to submitting the final offer to the governing bodies under par. (L).

289.33(10)(L) (L) Submission for approval. The final offers prepared by the local committee are required to be submitted for approval by resolution of the governing body of each participating municipality before the final offer is submitted to the board.

289.33(10)(m) (m) Public documents. The final offers are public documents and the board shall make copies available to the public.

289.33(10)(n) (n) Amendment of offer. After the final offers are submitted to the board, neither the applicant nor the local committee may amend its final offer, except with the written permission of the other party. Amendments proposed by the local committee are required to be approved by the participating municipality to which the amendment relates. If the governing body of any participating municipality fails to approve the final offer prepared by the local committee, the applicant may amend those portions of his or her final offer which pertain to that municipality without obtaining written permission from the local committee.

289.33(10)(o) (o) Public meeting. Within 30 days after the last day for submitting final offers, the board shall conduct a public meeting in a place reasonably close to the location of the facility to provide an opportunity for the applicant and the local committee to explain or present supporting arguments for their final offers. The board may conduct additional meetings with the applicant and the local committee as necessary to prepare its arbitration award. The board may administer oaths, issue summonses under s. 788.06 and direct the taking of depositions under s. 788.07.

289.33(10)(p) (p) Arbitration award. Within 90 days after the last day for submitting final offers under par. (f), the board may issue an arbitration award with the approval of a minimum of 5 board members. If the board fails to issue an arbitration award within this period, the governor shall issue an arbitration award within 120 days after the last day for submitting final offers under par. (f). The arbitration award shall adopt, without modification, the final offer of either the applicant or the local committee except that the arbitration award shall delete those items which are not subject to arbitration under sub. (8) or are not consistent with the legislative findings and intent under subs. (1) and (2). A copy of the arbitration award shall be served on the applicant and the local committee.

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) (12) Applicability.

289.33(12)(a) (a) Solid waste disposal facilities.

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) (b) Hazardous waste facilities.

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 History History: 1981 c. 374; 1983 a. 128; 1983 a. 282 ss. 6 to 32, 34; 1983 a. 416 s. 19; 1983 a. 532 s. 36; 1983 a. 538; 1985 a. 182 s. 57; 1987 a. 27, 204, 399; 1987 a. 403 s. 256; 1991 a. 39; 1995 a. 201; 1995 a. 227 s. 626; Stats. 1995 s. 289.33; 1997 a. 35, 241; 1999 a. 83, 150; 2001 a. 38; 2007 a. 63; 2009 a. 28; 2013 a. 14, 80; 2013 a. 173 s. 33.

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 Local approvals, as defined in sub. (3) (d), required to construct a low-hazard “clean fill” facility are preempted by s. 289.43 (8) and no longer required for exempt facilities, as settled by DeRosso, 200 Wis. 2d 642, which remains authoritative and unmodified. Because zoning requirements are expressly listed in sub. (3) (d) as local approvals, a “clean fill” facility is exempt from any zoning requirements. However, the definition of “local approval” in sub. (3) (d) indicates it is not limited to enumerated statutes and fairly included the village’s preconstruction storm water and erosion permitting requirements at issue in this case. Scenic Pit LLC v. Village of Richfield, 2017 WI App 49, 377 Wis. 2d 280, 900 N.W.2d 84, 15-2291.

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.

subch. IV of ch. 289 SUBCHAPTER IV

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) (b) “Company” means one of the following:

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) (b) Proof of financial responsibility.

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.