2023 Wisconsin Statutes & Annotations › Chapter 289 - Solid waste facilities. › 289.43 - Waivers; exemptions.

289.43
Waivers; exemptions.
(1)
Definition. In this section, “recycling" means the process by which solid waste is returned to productive use as material or energy, but does not include the collection of solid waste.
(2)
Waiver; emergency condition. The department may waive compliance with any requirement of ss. 289.21 to 289.32, 289.47, 289.53 or 289.95 or shorten the time periods under ss. 289.21 to 289.32, 289.47, 289.53 or 289.95 provided to the extent necessary to prevent an emergency condition threatening public health, safety or welfare.
(3)
Waiver; research projects. The intent of this subsection is to encourage research projects designed to demonstrate the feasibility of recycling certain solid wastes while providing adequate and reasonable safeguards for the environment. The department may waive compliance with the requirements of this chapter for a project developed for research purposes to evaluate the potential for the recycling of high-volume industrial waste if the following conditions are met:
(a)
The project is designed to demonstrate the feasibility of recycling solid waste or the feasibility of improved solid waste disposal methods.
(b)
The department determines that the project is unlikely to violate any law relating to surface water or groundwater quality including this chapter or ch. 160 or 283.
(c)
The department reviews and approves the project prior to its initiation.
(d)
The owner or operator of the project agrees to provide all data, reports and research publications relating to the project to the department.
(e)
The owner or operator of the project agrees to take necessary action to maintain compliance with surface water and groundwater laws, including this chapter and chs. 160 and 283 and to take necessary action to regain compliance with these laws if a violation occurs because of the functioning or malfunctioning of the project.
(4)
Exemption from licensing or regulation; development of improved methods. For the purpose of encouraging the development of improved methods of solid waste disposal, the department may specify by rule types of solid waste facilities that are not required to be licensed under ss. 289.21 to 289.32 or types of solid waste that need not be disposed of at a licensed solid waste disposal facility.
(5)
Exemption from regulation; single-family waste disposal. The department may not regulate under chs. 281, 285 or 289 to 299 any solid waste from a single family or household disposed of on the property where it is generated.
(6)
Exemption from licensing; agricultural landspreading of sludge. The department may not require a license under ss. 289.21 to 289.32 for agricultural land on which nonhazardous sludges from a treatment work, as defined under s. 283.01 (18), are land spread for purpose of a soil conditioner or nutrient.
(6m)
Exemption from licensing, agricultural use of wood ash. No license is required under ss. 289.21 to 289.32 for the agricultural use of wood ash.
(7)
Exemption from licensing; recycling of high-volume industrial waste.
(a)
Any person who generates, treats, stores or disposes of high-volume industrial waste may request the department to exempt an individual solid waste facility or specified types of solid waste facilities from this chapter for the purpose of allowing the recycling of any high-volume industrial waste.
(b)
A person who requests an exemption under par. (a) shall provide any information requested by the department relating to the characteristics of the high-volume industrial waste, the characteristics of the site of the recycling and the proposed methods of recycling.
(c)
The department shall approve the requester's exemption proposal if the department finds that the proposal, as approved, will comply with this chapter and chs. 30, 31, 160 and 280 to 299 and ss. 1.11, 23.40, 59.692, 59.693, 60.627, 61.351, 61.353, 61.354, 62.231, 62.233, 62.234 and 87.30. If the proposal does not comply with one or more of the requirements specified in this paragraph, the department shall provide a written statement describing how the proposal fails to comply with those requirements. The department shall respond to an application for an exemption under this subsection within 90 days.
(d)
The department may require periodic testing and may impose other conditions on any exemption granted under this subsection. The department may require a person granted an exemption under this subsection to identify the location of any site where high-volume industrial waste is recycled.
(e)
1.
Each applicant for an exemption under this subsection shall submit a nonrefundable fee of $500 with the application to cover the department's cost for the initial screening of the application. The department may waive this fee if the cost of the initial screening to the department will be minimal.
2.
The department shall, by rule, establish fees for approved applications which, together with the $500 application fees, shall, as closely as possible, equal the actual cost of reviewing applications.
3.
All fees collected under this paragraph shall be credited to the appropriation under s. 20.370 (4) (dg).
(8)
Exemption from regulation; low-hazard waste and material dredged from great lakes.
(a)
The department shall conduct a continuing review of the potential hazard to public health or the environment of various types of solid wastes and solid waste facilities. The department shall consider information submitted by any person concerning the potential hazard to public health or the environment of any type of solid waste.
(b)
If the department, after a review under par. (a), finds that regulation under this chapter is not warranted in light of the potential hazard to public health or the environment, the department shall either:
1.
Promulgate a rule specifying types of solid waste that need not be disposed of at a licensed solid waste disposal facility.
2.
On a case-by-case basis, exempt from regulation under this chapter specified types of solid waste facilities.
3.
Authorize an individual generator to dispose of a specified type of solid waste at a site other than a licensed solid waste disposal facility.
4.
Authorize use of the solid waste in public works projects.
(c)
The department may require periodic testing of solid wastes and impose other conditions on exemptions granted under par. (b).
(d)
1.
The department may not regulate under s. 289.30 or 289.31 any facility for the disposal of material dredged by a municipality or county or a contractor for a municipality or county from Lake Michigan, Lake Superior, or bays or harbors adjacent to Lake Michigan or Lake Superior, if all of the following apply:
a.
The department determines that the dredging and disposal will have a demonstrable economic public benefit, as defined under s. 281.36 (1) (am).
b.
The department determines that the cumulative adverse environmental impact of the dredging and disposal is insignificant and will not injure public rights or interests, cause environmental pollution, as defined in s. 299.01 (4), or result in material injury to the rights of any riparian owner.
c.
The department determines that the facility is in compliance with performance standards established by the department by rule.
d.
The facility accepts dredged material for not more than 10 years or in an amount not to exceed 35,000 cubic yards, whichever occurs first, unless there is a material adverse change in the contamination of the dredged material that would be disposed of at the facility or if there is a material change in the intended use of the dredged material.
e.
The disposal facility is located at least 100 feet from any wetland or critical habitat area and is outside a floodplain. This subd. 1. e. does not apply if the project is for beach nourishment above the ordinary high water mark on a public beach that has already been noticeably disturbed by human activities such as the construction of a parking lot, public swimming area, or other improvement and that has no unique ecological value.
f.
The disposal facility is located at least 100 feet from any water supply well.
g.
The facility confines the disposal area to as limited a geographic area as is practicable.
h.
The department determines that the application and proposed facility are in compliance with any other conditions established by the department by rule.
i.
At least 60 days prior to beginning disposal under this paragraph, the municipality or county or the contractor for the municipality or county submits to the department the address or location of the disposal site, the name of the person or entity accepting the dredged material, a map or aerial image showing the disposal location, the coordinates for the center of the disposal location, the dates when dredged material is to be received at the disposal location, the approximate volume of material to be disposed, the intended uses of the dredged material, and the available laboratory analytical data for samples collected from the dredged material to determine environmental impact.
j.
The department determines that a received application is complete and does not provide a written objection to the application within 30 days of receipt by the department. An application may not be reviewed until the department has determined the application is complete. One application may authorize disposal of dredged material from one dredging location at multiple disposal sites.
2.
An exemption granted by the department under this paragraph shall be valid for a period not to exceed 10 years and shall expire if the amount of dredged material deposited at the facility exceeds 35,000 cubic yards, there is a material adverse change in the contamination of the dredged material that would be disposed of at the facility, or there is a material change in the intended use of the dredged material.
(9)
Exemption from regulation; animal carcasses. The department may not regulate under chs. 281, 285 or 289 to 299 any animal carcass buried or disposed of, in accordance with ss. 95.35 and 95.50, on the property owned or operated by the owner of the carcass, if the owner is a farmer, as defined under s. 102.04 (3).
History:  1995 a. 227 ss. 574, 577 to 580; 1997 a. 27, 35; 2003 a. 88; 2007 a. 20; 2013 a. 80; 2017 a. 59; 2021 a. 93; s. 35.17 correction in (8) (d) 2.
Exemption from regulation under s. 144.44 (7) (g) (now s. 289.43 (8)) preempts municipal regulation. DeRosso Landfill Co. v. City of Oak Creek, 200 Wis. 2d 642, 547 N.W.2d 770 (1996), 94-0440.
Local approvals, as defined in s. 289.33 (3) (d), required to construct a low-hazard “clean fill” facility are preempted by sub. (8) and no longer required for exempt facilities, as settled by DeRosso, which remains authoritative and unmodified. Because zoning requirements are expressly listed in s. 289.33 (3) (d) as local approvals, a “clean fill” facility like the one proposed in this case was exempt from any zoning requirements. However, the definition of “local approval” in s. 289.33 (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.