Section 287.13 - Municipal waste flow control; required use of recycling or resource recovery facility(1) DEFINITIONS. In this section:(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.(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.(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.(f) "Local unit of government" includes a county, city, village, town, school district, county utility district, sanitary district or metropolitan sewerage district.(g) "Person" includes individuals, partnerships, associations, limited liability companies, corporations and local units of government.(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.(i) "Sewage or industrial waste sludge" means the residue material resulting from the treatment of sewage or industrial waste water.(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: (a) The municipality adopts an initial intent resolution.(b) The municipality prepares or arranges for the preparation of a comprehensive facility project description report and submits this report to the department.(c) The municipality determines that required usage of the facility is in the best public interest.(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.(e) The municipality adopts a valid solid waste flow control ordinance and issues a required use order.(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:(a) Each of the municipalities adopts an initial intent resolution.(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.(c) Each of the municipalities determines that the required use is in the best public interest.(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.(e) Each of the municipalities adopts a valid solid waste flow control ordinance and issues a required use order.(4) REQUIRED USE; CONFLICTS BETWEEN MUNICIPALITIES.(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.(b)Conflicts in a populous county.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.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.(5) EXEMPTION FOR CERTAIN SOLID WASTES. A municipality may not require the use of a facility for: (a) Solid waste produced by a retail business, commercial business or industry which is privately processed and reused.(b) Solid waste consisting of scrap, new material or used material which is separated from other waste for sale, reuse or recycling.(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.(d) Solid waste which is sewage or industrial waste sludge.(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.(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.(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).(h) Solid waste which is a type of waste which the municipality determines is unsuitable for recycling or resource recovery at the facility.(i) Solid waste that consists of eligible electronic devices, as defined in s. 287.17 (1) (gs), used by households or covered schools.(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: (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.(b) A statement of the municipality's intention to adopt a solid waste flow control ordinance.(c) A description of the types of solid waste which may be subject to the ordinance.(d) A description of the anticipated recycling or resource recovery area which may be subject to the ordinance.(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:(a) A detailed description of the proposed facility for the recycling of solid waste or for the recovery of resources from solid waste, including details on facility size and location, preliminary engineering design plans, a study of the required waste quantities and waste composition and a detailed report of the facility anticipated capital and operating costs.(b) A detailed description of methods for transporting solid wastes to the facility including transportation routes, transfer facilities and estimates on proposed collection, storage, transportation and residual disposal costs.(c) An identification of energy or material markets; a project timetable and implementation schedule; an identification of parties responsible for facility procurement; and a summary of the tipping fee, schedule of rates and other charges required for facility implementation.(d) An identification of the quantity, composition and types of solid waste to be processed at the proposed facility for the recycling of solid waste or for the recovery of resources from solid waste, an identification of the quantity, composition and types of solid waste in the municipality which are not to be processed at that facility, plans for the treatment or disposal of this residual solid waste and a summary of the economic and environmental impacts of the reduction in volume or the change in characteristics of the residual solid waste on existing solid waste treatment and disposal facilities serving the recycling or resource recovery area.(e) The proposed effective period for any municipal waste flow control ordinance adopted for the facility. The department shall determine if the proposed effective period is acceptable based upon all of the following:1. The expected life of the facility.2. The length of time required to finance the capital cost of the facility.3. The potential for the development of improved or alternate methods or technology for the recycling or the recovery of resources from the types of solid waste to be processed at the facility.(7m) AMENDMENT OF RESOLUTION OR REPORT. A municipality may amend an initial intent resolution adopted under sub. (6) or a comprehensive facility project description report prepared under sub. (7) before the adoption of the municipal waste flow control ordinance. If the amendment is adopted after the public hearing under sub. (9), the municipality shall publish a notice of the amendment and the opportunity for a hearing, and shall conduct a public hearing if requested by 6 or more residents of the municipality. After the public hearing, or after the deadline for requesting a hearing if none is requested, the municipality shall issue a modified determination concerning best public interest under sub. (8) and any person adversely affected by the municipality's modified determination concerning best public interest may appeal the determination under ch. 68.(8) BEST PUBLIC INTEREST; CRITERIA. A municipality may determine that a required usage is in the best public interest if it finds the: (a) Required use will result in reuse or recovery of material from solid waste.(b) Required use will lessen the demand for solid waste disposal facilities.(c) Required use will conserve natural resources or energy.(d) Required use is necessary to obtain the type and quantity of solid waste necessary for operational volumes needed to make the facility economically feasible.(e) Alternatives to required use which may be used to obtain the necessary type and quantity of solid waste have been compiled, analyzed and considered.(f) Required use is consistent with planning efforts of the municipality.(h) Operation of the facility is technically feasible and will not result in significant adverse environmental impacts based upon a comprehensive facility project description report prepared under sub. (7).(i) Required use and operation of the facility will be responsive to the extent feasible with legitimate public concerns expressed at the public hearing under sub. (9).(j) Construction, operation, maintenance, expansion, modification and closure of the facility will comply with chs. 281, 285 and 289 to 299 and all permits, licenses and approvals required by the department will be obtained.(k) Proposed effective period is reasonable based upon the factors specified under sub. (7) (e) 1. to 3.(9) BEST PUBLIC INTEREST; HEARING; APPEALS. (a) A municipality shall conduct a public hearing and permit public participation at that hearing prior to issuing any determination concerning best public interest under sub. (8).(b) Any person adversely affected by the municipality's determination concerning best public interest under sub. (8) may appeal the determination under ch. 68.(10) MUNICIPAL WASTE FLOW CONTROL ORDINANCE. Except as provided under sub. (4), a municipality may adopt a municipal waste flow control ordinance if the municipality adopted an appropriate initial intent resolution under sub. (6), if the municipality or, if the municipality enters into an agreement under sub. (3), the responsible municipality submitted the necessary comprehensive facility project description report required under sub. (7), if the municipality issued a determination of best public interest utilizing criteria under sub. (8) after conducting the hearing required under sub. (9) and if the facility complies with this chapter and chs. 281, 285 and 289 to 299 and all permits, licenses and approvals required by the department are obtained. The municipal waste flow control ordinance shall include: (a) A description of the applicable facility for the recycling of solid waste or for the recovery of resources from solid waste.(b) A description of the recycling or resource recovery area subject to the ordinance and for which a required use order may be issued.(c) A description of the types and quantities of solid waste which are subject to the ordinance and for which a required use order may be issued.(d) A description of the persons who are subject to the ordinance and who may be required to use the facility under a required use order.(e) A description of the minimums and maximums for the tipping fee, schedule of rates and other charges which may be imposed for use of the facility without amendment or revision of the ordinance.(f) The effective period of the municipal waste flow control ordinance. The effective period and any revision of the effective period is required to be approved by the department based upon factors specified under sub. (7) (e) 1. to 3. A municipal waste flow control ordinance is not valid after the expiration of its effective period.(g) A description of the methods proposed to be used to meet the recycling requirements of sub. (17).(11) REQUIRED USE ORDER. A municipality may issue a required use order following the procedures required under sub. (12) if it adopted a municipal waste flow control ordinance and if the order is consistent with that ordinance. A required use order shall include:(a) A description of the specific recycling or resource recovery area subject to the order.(b) Specification of the types and quantities of solid waste subject to the order.(c) A summary of the plans for the use of the solid waste.(d) A description of the point or points where the solid waste is to be delivered or where the solid waste will be collected under the order.(e) A summary of the tipping fee, rates and other charges which will be imposed for use of the facility under the order.(12) NEGOTIATION. A municipality shall proceed as follows in issuing a required use order which requires use of a facility for the recycling of solid waste or for the recovery of resources from solid waste:(a) The municipality shall notify those persons who are subject to the required use order at least 90 days prior to the effective date of that order. The municipality shall notify in writing all licensed collectors operating in the recycling or resource recovery area at least 90 days prior to the effective date of that order. The municipality shall notify other local units of government in the recycling or resource recovery area by providing a written notice to the clerk of those units of government. The municipality shall notify in writing the owner or operator of all solid waste disposal and treatment facilities located in or serving generators located in the recycling or resource recovery area at least 90 days prior to the effective date of that order. In addition, the municipality shall publish a class 3 notice, under ch. 985, in a newspaper having general circulation in the area. Each notification shall include information specified under sub. (11) (a) to (e).(b) If a municipality fails to notify a person required to be notified under par. (a), the required use order is not effective and may not be enforced with respect to that person. If a municipality fails to notify the owner or operator of a solid waste disposal or treatment facility as required under par. (a), the required use order is not effective and may not be enforced with respect to that owner or operator or to a person furnishing solid waste to the owner or operator.(c) During the 90-day period following the notification, the municipality shall negotiate with any or all of the persons subject to or affected by the required use order and attempt to develop a contractual agreement on the terms of required usage of the facility.(d) In negotiating under this subsection, the municipality shall consider penalty fees, charges imposed and other financial consequences which will result from the termination of existing service contracts if a required use order takes effect and is enforced.(e) If a contract is not entered into on or before the end of the 90-day period, or if, in the case of a person other than a local unit of government, the person does not make adequate arrangements for the processing for reuse of the waste generated by it, the municipality shall hold a public hearing on the matter and take testimony for and against the required use of the facility.(f) If a contract is not entered into within 30 days after the public hearing, or if, in the case of a person other than a local unit of government, the person does not make adequate arrangements for the processing for reuse of the waste generated by it, the municipality may issue a special enforcement order requiring any person given notice to use the facility, starting on a specified date at least 30 days after the special enforcement order is issued.(g) The municipality shall provide procedures so that any person adversely affected by the issuance of a special enforcement order may appeal that decision under ch. 68.(13) TERMINATION OF REQUIRED USE. (a) A municipality may not terminate, suspend or curtail services provided to any person required to use a facility under this section without that person's consent.(b) The obligations of a person under a required use order issued under this section may not be terminated or affected unless the municipality consents to the termination or revision.(c) A municipality shall consent to the termination or revision of a required use order if the person subject to the order establishes that solid waste generated by that person will be recycled or treated for the recovery of resources and that: 1. The proposed recycling or recovery of resources is economically efficient;2. The proposed recycling or recovery of resources would not reduce the type or quantity of solid waste available to the facility for which the required use order was issued to such an extent that the facility could not maintain minimum operational volumes necessary to fulfill existing contractual obligations for products or energy or necessary to make the facility economically feasible; and3. The proposed recycling or recovery of resources results in a higher or better use of solid waste resources. A higher or better use of solid waste resources results if: a. Recyclable or reusable materials are derived from the solid waste resources; orb. Energy is derived from the solid waste resources.(15) FEE AND RATE REVIEW. The tipping fee, rates and other charges and any revision in the tipping fee, rates and other charges established by a municipality for use of a facility for the recycling of solid waste or for the recovery of resources from solid waste which is required under this section are subject to review under ch. 68.(16) PERMITS, LICENSE AND APPROVALS; REPORT REVIEW AND FEES; PROOF OF FINANCIAL RESPONSIBILITY. (a) A municipality may not construct, operate, maintain, expand, modify or close any facility for the recycling of solid waste or for the recovery of resources from solid waste in violation of chs. 281, 285 and 289 to 299 or without any license, permit or approval required by the department.(b) The department shall review each comprehensive facility project description report submitted under sub. (7) and may require a municipality to pay a fee to cover costs incurred by the department associated with this review.(c) The department may require a municipality to maintain proof of financial responsibility to ensure the availability of funds necessary for closure costs associated with the closing of a facility for the recycling of solid waste or for the recovery of resources from solid waste, and to remedy, abate or prevent hazards to public health or the environment.(17) INCINERATION; RECYCLING REQUIREMENTS.(a) In this subsection, "incinerator" means a device which maintains a controlled process by which solid waste is thermally altered into gases and residue containing little or no combustible material.(b) A municipality which adopts a waste flow control ordinance may not operate an incinerator as one of the means of recycling solid waste unless the department certifies that the requirements of par. (bg) are met.(bg) Solid waste of each type to be incinerated, as determined in the air permit under s. 285.60, shall be recycled by means other than incineration to the extent of economic feasibility.(e) This subsection applies to incinerators in operation on and after July 1, 1989.Amended by Acts 2021 ch, 79,s 1, eff. 8/8/2021.Amended by Acts 2018 ch, 207,s 5, eff. 4/5/2018.Amended by Acts 2013 ch, 1,s 68, eff. 3/26/2013.1983 a. 27, 192, 425; Stats. 1983 s. 144.794; 1985 a. 120; 1987 a. 27; 1989 a. 31; 1989 a. 56 ss. 177, 259; 1989 a. 335 ss. 57 to 57j, 59, 61 to 63; Stats. 1989 s. 159.13; 1991 a. 39; 1993 a. 112; 1995 a. 227 s. 896; Stats. 1995 s. 287.13; 2009 a. 50.