Chapter 289

ENFORCEMENT; PENALTIES

289.91 289.91 Inspections. Any officer, employee 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 this chapter and rules promulgated or licenses issued under this chapter. No person may refuse entry or access to any officer, employee 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.

289.91 History History: 1979 c. 34; 1981 c. 374 s. 148; 1987 a. 384; 1993 a. 491; 1995 a. 227 s. 529; Stats. 1995 s. 289.91.

289.92 289.92 Review of alleged violations. Any 6 or more citizens or any municipality may petition for a review of an alleged violation of this chapter or any rule promulgated or special order, plan approval, license or any term or condition of a license issued under this chapter in the following manner:

289.92(1) (1) They shall submit to the department a petition identifying the alleged violator and setting forth in detail the reasons for believing a violation occurred. The petition shall state the name and address of a person within the state authorized to receive service of answer and other papers in behalf of the petitioners and the name and address of a person authorized to appear at a hearing in behalf of the petitioners.

289.92(2) (2) Upon receipt of a petition under this section, the department may:

289.92(2)(a) (a) Conduct a hearing in the matter within 60 days of receipt of the petition. A hearing under this paragraph shall be a contested case under ch. 227. Within 60 days after the close of the hearing, the department shall either:

289.92(2)(a)1. 1. Serve written notice specifying the law or rule alleged to be violated, containing findings of fact, conclusions of law and an order, which shall be subject to review under ch. 227; or

289.92(2)(a)2. 2. Dismiss the petition.

289.92(2)(b) (b) Initiate action under s. 289.97.

289.92(3) (3) If the department determines that a petition was filed maliciously or in bad faith, it shall issue a finding to that effect, and the person complained against is entitled to recover expenses on the hearing in a civil action.

289.92 History History: 1981 c. 374; 1995 a. 227 s. 640; Stats. 1995 s. 289.92.

289.93 289.93 Orders. The department may issue orders to effectuate the purposes of this chapter and enforce the same by all appropriate administrative and judicial proceedings.

289.93 History History: 1995 a. 227 s. 524.

289.94 289.94 Imminent danger.

289.94(1) (1) Notice required. If the department receives evidence that the past or present handling, storage, treatment, transportation or disposal of any solid waste may present an imminent and substantial danger to health or the environment, the department shall do all of the following:

289.94(1)(a) (a) Provide immediate notice of the danger to each affected municipality.

289.94(1)(b) (b) Promptly post notice of the danger at the site at which the danger exists, or order a person responsible for the danger to post such notice.

289.94(2) (2) Other actions. In addition to the actions under sub. (1), the department may do one or more of the following:

289.94(2)(a) (a) Issue any special order necessary to protect public health or the environment.

289.94(2)(b) (b) Take any other action necessary to protect public health or the environment.

289.94(2)(c) (c) Request the department of justice to commence legal proceedings to restrain or enjoin any person from handling, storage, treatment, transportation or disposal which presents or may present an imminent and substantial danger to health or the environment or take any other action as may be necessary to protect public health and the environment.

289.94 History History: 1995 a. 227 s. 991.

289.95 289.95 Enforcement procedures for older facilities.

289.95(1) (1) Notwithstanding s. 289.97, for solid waste facilities licensed on or before January 1, 1977, that the department believes do not meet minimum standards promulgated under s. 289.05 (1) and (2), the department may do any of the following:

289.95(1)(a) (a) Initiate action under s. 289.94.

289.95(1)(b) (b) Refer the matter to the department of justice for enforcement under s. 299.95.

289.95(1)(c) (c) Issue an order relating to the solid waste facility or refuse to relicense the solid waste facility using the procedure under sub. (2).

289.95(2) (2) 

289.95(2)(a) (a) Before issuing an order relating to a solid waste facility or a decision refusing to relicense a solid waste facility under sub. (1) (c), the department shall notify the licensee of its intended action. The licensee, within 30 days after receipt of the notice, may request a hearing under par. (b). If the licensee requests a hearing under par. (b), it may not withdraw that request and proceed under par. (c).

289.95(2)(b) (b) If the licensee requests a hearing, the department may not issue the order or decision until a hearing, conducted as a class 2 proceeding under ch. 227, is held unless the licensee has withdrawn the hearing request. The hearing shall be held in the county where the facility is located. At the hearing the department must establish by a preponderance of all the available evidence that the facility does not adhere to the minimum standards promulgated under s. 289.05 (1) and (2). If the hearing examiner’s decision is in favor of the department, or if the licensee has withdrawn the hearing request, the department may issue the order or decision. The order or decision is subject to judicial review under ch. 227.

289.95(2)(c) (c) If the licensee does not request a hearing under par. (b), the department shall issue the order or decision. The licensee may challenge the order or decision by commencing an action in circuit court for the county in which the solid waste facility is located within 15 days after the issuance of the order or decision. The complaint shall allege that the facility adheres to the minimum standards promulgated under s. 289.05 (1) and (2). The licensee shall receive a new trial on all issues relating to the facility and relicensing of the facility. The trial shall be conducted by the court without a jury.

289.95 History History: 1995 a. 227 s. 581.

289.96 289.96 Penalties.

289.96(1) (1) 

289.96(1)(a) (a) No person may treat, store or dispose of high-volume industrial waste in violation of a testing requirement or condition of an exemption under s. 289.43 (7) (d).

289.96(1)(b) (b) No person may violate a testing requirement or condition of an exemption from regulation under s. 289.43 (8) (c).

289.96(2) (2) A person who violates sub. (1) shall forfeit not less than $10 nor more than $25,000 for each violation. Each day of violation is a separate offense.

289.96(3) (3) 

289.96(3)(a) (a) Except for the violations enumerated in sub. (1), any person who violates this chapter or any rule promulgated or any plan approval, license or special order issued under this chapter shall forfeit not less than $10 nor more than $5,000 for each violation. Each day of continued violation is a separate offense. While an order is suspended, stayed or enjoined, the penalty does not accrue.

289.96(3)(b) (b) In addition to the penalties provided under par. (a), the court may award the department of justice the reasonable and necessary expenses of the investigation and prosecution of the violation, including attorney fees. The department of justice shall deposit in the state treasury for deposit into the general fund all moneys that the court awards to the department or the state under this paragraph. The costs of investigation and the expenses of prosecution, including attorney fees, shall be credited to the appropriation account under s. 20.455 (1) (gh).

289.96 History History: 1985 a. 46; 1995 a. 227 s. 641, 991; Stats. 1995 s. 289.96; 2001 a. 109; 2003 a. 309.

289.97 289.97 Violations: enforcement.

289.97(1) (1) 

289.97(1)(a) (a) If the department has reason to believe that a violation of this chapter or any rule promulgated or special order, plan approval, or any term or condition of a license issued under this chapter occurred, it may:

289.97(1)(a)1. 1. Cause written notice to be served upon the alleged violator. The notice shall specify the law or rule alleged to be violated, and contain the findings of fact on which the charge of violation is based, and, except as provided in s. 289.95, may include an order that necessary corrective action be taken within a reasonable time. This order shall become effective unless, no later than 30 days after the date the notice and order are served, the person named in the notice and order requests in writing a hearing before the department. Upon such request, the department shall after due notice hold a hearing. Instead of an order, and except as provided in s. 289.95, the department may require that the alleged violator appear before the department for a hearing at a time and place specified in the notice and answer the charges complained of; or

289.97(1)(a)2. 2. Initiate action under s. 299.95.

289.97(1)(b) (b) If after such hearing the department finds that a violation has occurred, it shall affirm or modify its order previously issued, or issue an appropriate order for the prevention, abatement or control of the problems involved or for the taking of other corrective action as may be appropriate. If the department finds that no violation has occurred, it shall rescind its order. Any order issued as part of a notice or after hearing may prescribe one or more dates by which necessary action shall be taken in preventing, abating or controlling the violation.

289.97 History History: 1979 c. 34; 1981 c. 374; 1995 a. 227 s. 642; Stats. 1995 s. 289.97.