289.27(1)(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; and
289.27(1)(c)(c) There is a dispute of material fact.
289.27(2)(2)Applicability. This section applies only if a person requests the treatment of the hearing as a contested case under sub. (1) within the 30-day or 45-day period and has a right to a hearing under that subsection. Any denial of a request for the treatment of the hearing as a contested case received within the 30-day or 45-day period under sub. (1) shall be in writing, shall state the reasons for denial and is an order reviewable under ch. 227. If the department does not enter an order granting or denying the request for the treatment of the hearing as a contested case within 20 days after the written request is filed, the request is deemed denied.
289.27(3)(3)Nonapplicability. Notwithstanding sub. (2), this section does not apply if a hearing on the feasibility report is conducted as a part of a hearing under s. 293.43 and the time limits, notice and hearing provisions under that section supersede the time limits, notice and hearing provisions under s. 289.25 (2) and (3) and this section.
289.27(4)(4)Time limits. Except as provided under s. 289.29 (5):
289.27(4)(a)(a) The division of hearings and appeals in the department of administration shall schedule the hearing to be held within 120 days after the expiration of the 30-day or 45-day period under sub. (1).
289.27(4)(b)(b) The final determination of feasibility shall be issued within 90 days after the hearing is adjourned.
289.27(5)(5)Determination of need; decision by hearing examiner. If a contested case hearing is conducted under this section, the secretary shall issue any decision concerning determination of need, notwithstanding s. 227.46 (2) to (4). The secretary shall direct the hearing examiner to certify the record of the contested case hearing to him or her without an intervening proposed decision. The secretary may assign responsibility for reviewing this record and making recommendations concerning the decision to any employee of the department.
289.27 HistoryHistory: 1995 a. 227 s. 554, 565, 991.
289.28289.28Determination of need.
289.28(1)(1)Determination of need; issues considered. A feasibility report shall contain an evaluation to justify the need for the proposed facility unless the facility is exempt under sub. (2). The department shall consider the following issues in evaluating the need for the proposed facility:
289.28(1)(a)(a) An approximate service area for the proposed facility which takes into account the economics of waste collection, transportation and disposal.
289.28(1)(b)(b) The quantity of waste suitable for disposal at the proposed facility generated within the anticipated service area.
289.28(1)(c)(c) The design capacity of the following facilities located within the anticipated service area of the proposed facility:
289.28(1)(c)1.1. Approved facilities, including the potential for expansion of those facilities on contiguous property already owned or controlled by the applicant.
289.28(1)(c)2.2. Nonapproved facilities which are environmentally sound. It is presumed that a nonapproved facility is not environmentally sound unless evidence to the contrary is produced.
289.28(1)(c)3.3. Other proposed facilities for which feasibility reports are submitted and determined to be complete by the department.
289.28(1)(c)4.4. Facilities for the recycling of solid waste or for the recovery of resources from solid waste which are licensed by the department.
289.28(1)(c)5.5. Proposed facilities for the recycling of solid waste or for the recovery of resources from solid waste which have plans of operation which are approved by the department.
289.28(1)(c)6.6. Solid waste incinerators licensed by the department.
289.28(1)(c)7.7. Proposed solid waste incinerators which have plans of operation which are approved by the department.
289.28(1)(d)(d) If the need for a proposed municipal facility cannot be established under 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.
289.28(2)(2)Determination of need; exempt facilities. Subsections (1) and (3) and ss. 289.24 (1) (f) and 289.29 (1) (d) do not apply to:
289.28(2)(a)(a) Any facility which is part of a prospecting or mining operation with a permit under s. 293.45 or 293.49.
289.28(2)(b)(b) Any solid waste disposal facility designed for the disposal of waste generated by a pulp or paper mill.
289.28(3)(3)Issuance of determination of need. Except for a facility which is exempt under sub. (2), the department shall issue a determination of need for the proposed facility at the same time the final determination of feasibility is issued. If the department determines that there is insufficient need for the facility, the applicant may not construct or operate the facility.
289.28 HistoryHistory: 1995 a. 227 ss. 556, 557, 560, 991.
289.28 AnnotationMunicipal replacement facilities are not exempt from the needs determination. 77 Atty. Gen. 81.
289.29289.29Determination of feasibility.