Wisconsin's Landfill Siting Process

Wisconsin's landfill siting process is considered one of the most successful in the country because it strikes a balance between the statewide need for environmentally sound waste disposal capacity and the legitimate concerns of local citizens and municipalities. The siting process requires that landfills meet stringent siting, design, construction, operation, monitoring, and performance and financial responsibility requirements to maximize the protection of public health and the environment.

In Wisconsin, all new landfills and expansions to existing landfills must obtain both state and any applicable local approvals prior to construction. Licensing of a landfill and the negotiation/arbitration of local approvals are two separate processes and occur concurrently. The landfill licensing process administered by the Department of Natural Resources (DNR) is a technical decision-making process focusing on the ability of the proposed landfill design to meet all criteria and standards to protect public health and the environment. The local approval process focuses on the local economic, social and land use impacts of the landfill and is overseen by the Wisconsin Waste Facility Siting Board.

Over the last several years, a number of landfill applications in Wisconsin have been significantly delayed by new state and federal locational requirements regarding wetlands and airports and new state statutory changes made to the siting process since 1988. Other major factors contributing to such delays were lack of planning and poor site selection by some applicants, submittal of incomplete information, inadequate justification for exemptions or unique/alternative designs, and of course public opposition.

In 1995 with the assistance of a public technical advisory committee (TAC), the DNR completed the task of incorporating the necessary changes into Wisconsin's solid waste management regulations (chs. NR 500 - 538 [PDF exit DNR], Wis. Adm. Code) to conform to the new statutory requirements and the federal (Subtitle D) criteria for municipal solid waste landfills. Another primary goal of the TAC and the DNR was to streamline the NR 500 series of codes without jeopardizing public health or the environment. Areas of duplication and unnecessary and burdensome requirements found over the past several years to not be providing any additional environmental protection were eliminated. Significant clarification was also added to make the codes more user friendly. Since the landfill siting process is laid out in state statutes it essentially remained unaltered. However, substantial changes made to the front of the technical decision making process and streamlining of the technical submittal requirements have lead to some efficiencies being realized.

Landfill Licensing Process - The DNR technical decision-making process is summarized in Figure 1. It includes the following mandatory steps:

Initial Site Inspection

The purpose of an initial site inspection is to obtain a preliminary evaluation from the DNR on the potential a proposed property has to comply with the locational criteria and performance standards specified in s. NR 504.04, Wis. Adm. Code. As specified in ch. NR 509, Wis. Adm. Code, an applicant must first submit a written request to the DNR to arrange for an initial site inspection to be performed. This request must include the following minimum information (Landfill Initial Site Inspection Request Completeness Checklist) [PDF 31KB]:

1. A cover letter identifying the applicant and authorized contact, type of landfill and operation being proposed, property ownership, location by quarter-quarter section and present land use.
2. Identification of any known potential impacts to endangered and threatened species in accordance with s. 29.604(4) [PDF exit DNR], Wis. Stats., and the federal endangered species act, including any prior studies or surveys conducted at the proposed site.
3. Identification of any historical, scientific or archeological areas in accordance with s. 44.40 [PDF exit DNR], Wis. Stats.,including any prior studies or surveys conducted at the proposed site.
4. A map depicting existing conditions within one mile of the proposed boundaries of the proposed landfill.
5. A preliminary identification of all potential conflicts with the locational criteria and performance standards specified in s. NR 504.04 [PDF exit DNR], Wis. Adm. Code, for landfills, except for s. NR 504.04(4)(d) to (f).

Note: An initial site inspection is also required for all noncommercial soil borrow sources designated to be used in the construction, operation, or closure of a specific landfill. A written request for an inspection of a soil borrow source must include the information listed in items 1 through 4 above, and a preliminary identification of all potential adverse effects on wetlands, critical habitat areas or surface waters (Soil Borrow Site Initial Site Inspection Request Completeness Checklist) [PDF 21KB].

During the inspection, DNR staff evaluate whether or not the proposed landfill would be within a floodplain or within an area that would have an adverse impact on critical habitat, historical/archeological features and wetlands. The DNR staff also check to see if the anticipated landfill footprint would be within required setback distances to navigable waters, state and federal highways, public parks, airports and water supply wells. After the inspection the applicant is notified in writing which locational criteria and performance standards the proposed property complies with and does not comply with and if further evaluations or additional studies are necessary. The initial site inspection letter from the DNR can be used by an applicant to decide if the proposed property merits further investigation. If no follow up evaluations or studies are necessary to determine navigability of nearby surface waters, the presence of critical habitat, or to define wetland boundaries etc., the completion of this step by the DNR generally should not take more than a couple of weeks.

Initial Site Report

The next step in the landfill licensing process is for the applicant to submit an Initial Site Report (ISR). The ISR was originally developed as a voluntary screening tool to allow an applicant to receive an opinion from the DNR on whether a proposed property had potential for development as a landfill before committing to the time and cost of preparing a feasibility report. In 1990, the state's comprehensive recycling law became effective and it mandated that all applicant's proposing to site a new landfill or to expand an existing landfill shall submit an ISR to the DNR. Over the years, some of the requirements originally specified for a feasibility report were moved to or added to the minimum ISR submittal requirements reducing the effectiveness of the report as an inexpensive screening tool. The 1998 rule revisions returned this report back to its original purpose by significantly streamlining the minimum requirements for an ISR.

The minimum requirements for an ISR are found in ch. NR 509 [PDF exit DNR], Wis. Adm. Code. An ISR must include the information submitted for the initial site inspection and the DNR's initial site inspection response letter; the proposed project's title; identification of the owner and proposed operator of the landfill and any consultant; a description of the proposed property and the anticipated limits of filling; proposed landfill life and disposal capacity; municipalities and industries to be served; anticipated waste types, characteristics and amount of waste to be handled; anticipated cover frequency; mode of operation; and the anticipated subbase, base and final grades. An ISR must also contain a thorough discussion of the land uses which may have an impact on the suitability of the property for waste disposal or on groundwater quality, and include a summary of the available published information concerning the regional geotechnical characteristics of the proposed location. No site-specific geotechnical investigation is required (Initial Site Report Procedures and Completeness Checklist) [PDF 22KB].

An ISR is evaluated by a DNR plan review team consisting of a hydrogeologist, an environmental engineer and a waste management specialist/investigator. The hydrogeologist has the lead review responsibility. After completing a review of the ISR, the DNR renders an opinion on the proposed property's potential for development as a landfill and notifies the applicant in writing. The ISR opinion letter is also used by the plan review team to identify any known constraints to feasibility. In a favorable ISR response, the DNR specifies any site-specific additional or unique information needed to be included in a feasibility report which is the next mandatory step in the siting process. An unfavorable opinion letter is used to discourage an applicant before an irrevocable financial or political commitment to an unsuitable property is made. The completion of this step by the DNR generally should not take more than a couple of months.

Pre-feasibility Report

In those cases where the regional geotechnical or any available site-specific geotechnical information indicates the proposed property may have poor geology or unusual hydrogeological conditions, a pre-feasibility report should be submitted. Submitting a pre-feasibility report, however, is not a required step in the siting process. The level of site-specific geotechnical information specified for a pre-feasibility report is found in ch. NR 510 [PDF exit DNR], Wis. Adm. Code, and it is similar to the information formerly required for ISR's. The advantage of the voluntary pre-feasibility report option is that it allows a landfill applicant to obtain a revised opinion from the DNR based on site-specific geotechnical information which should reduce the risk of proceeding directly from the reduced scope ISR to doing major feasibility studies on a property which may have little or no potential of being approved.

Feasibility Report

Obtaining a favorable feasibility determination from the DNR virtually assures the applicant the proposed landfill can be developed from a technical standpoint. Chapter NR 512 [PDF exit DNR], Wis. Adm. Code, specifies the minimum information that must be included in a feasibility report. Required items already addressed in an ISR or a pre-feasibility report can be cross-referenced rather than included in the feasibility report. Along with information requested in the DNR's ISR opinion letter and any revised pre-feasibility opinion letter, a feasibility report must contain a comprehensive and detailed site-specific geologic and hydrogeologic investigation that includes baseline groundwater quality data; a preliminary engineering design that includes a description of the proposed environmental monitoring for groundwater, leachate, surface water, gas, air quality and soil moisture (if applicable); an environmental assessment; documentation of the need for the proposed landfill; and an analysis of the alternatives to landfilling such as waste reduction, reuse, recycling, composting and energy recovery initiatives and services. Initial site inspection response letter(s) and soil test results for any proposed noncommercial soil borrow source(s) designated to be used in the construction, operation or closure of the first phase of the proposed landfill also must be included in a feasibility report (Feasibility Completeness Checklist) [PDF 86KB].

For a feasibility report, the hydrogeologist of the DNR plan review team is once again the lead reviewer and he/she receives comments from a waste management investigator and several other program specialists in the applicable local DNR field office. The hydrogeologist fills out a feasibility completeness checklist to determine if all of the minimum information required has been submitted. If required information is found to be missing, the DNR notifies the applicant in writing that the report is incomplete and lists the information needed to make the report complete. The incompleteness letter may also include a request for additional or unique information the plan review team believes is necessary before a feasibility determination can be made.

Environmental Analysis

When a feasibility report is found to be complete, the hydrogeologist prepares an analysis of the significance of any impacts the proposed project would have on the public's health, welfare and the environment. After completing a draft of the analysis, the hydrogeologist recommends whether or not an Environmental Impact Statement (EIS) should be completed on the proposed project. If the DNR decides that an EIS must be written, the feasibility completeness determination is delayed until the EIS is completed. The completion of an EIS, and an associated mandatory public hearing on the completeness of the EIS, can take up to a year or more to complete.

Public Hearings

If an EIS is not required or after an EIS is completed, and if the feasibility report is complete, the hydrogeologist prepares a short summary of the proposal and a public notice stating that the DNR has received a complete feasibility report. The public notice is published in the local newspaper to invite public comment and provide information on how 6 citizens or an official of the host municipality or any municipality located within 1,500 feet of the proposed landfill can request that an informational public hearing or a contested case hearing be held on the technical feasibility of the proposal.

If no hearing is requested, the plan review team considers the public comments received before writing the feasibility determination. If an informational public hearing is held the feasibility determination is required to be written within 60 days after the hearing. When a contested case hearing is held, it is conducted before a hearing examiner in much the same way as a court trial. The DNR plan review team and the other parties to the hearing testify under oath and are subject to cross-examination. After a contested case hearing, the feasibility determination is made by the Secretary of the DNR or the DNR Secretary's designee based only upon a review of the hearing record. A contested case hearing is intended to address technical issues of site feasibility including the need for the landfill and the ability of the proposal to meet design and performance standards and to protect the public's health, welfare and the environment.

Submittal of incomplete/inadequate information, public controversy, locational problems such as potential impacts to wetlands or the potential of creating a bird hazard to aircraft, and poor geology and unusual hydrogeologic conditions significantly impact the review time for feasibility reports. Depending on the completeness of a feasibility report, any locational problems and whether or not an EIS must be prepared or a public hearing must be held, the DNR's completion of the feasibility step in the siting process can take six months to more than three years.

Plan of Operation Report

A plan of operation report includes the final engineering design, design calculations, details on the phases of construction, proposed construction documentation, sequencing of operations, daily operations, monitoring, closure design, long-term care of the proposed landfill after closure and a detailed estimate of the costs for construction, operation, closure and long-term care of the landfill (Design and Construction Criteria Completeness Checklist) [PDF 70KB]. Chapter NR 514 [PDF exit DNR], Wis. Adm. Code, and the conditions in a feasibility determination specify the minimum information a plan of operation must contain. After the applicant receives a feasibility determination there is usually at least one meeting between the applicant and the DNR to discuss the feasibility conditions of approval, prior to the submittal of the plan of operation report.

The DNR plan review team is responsible for ensuring that all design, construction, operation, closure and financial responsibility details required by ch. NR 514 [PDF exit DNR], Wis. Adm. Code, and all of the conditions of feasibility are addressed in the plan of operation. The environmental engineer is the lead reviewer and makes sure that good engineering practices are being proposed. The hydrogeologist reviews the environmental monitoring proposal, any alternative concentration limits proposed for exemptions to the groundwater standards which were granted in the feasibility determination and preventative action limits proposed for the groundwater quality indicator parameters for each well at the site. The DNR typically completes its review of a plan of operation in three to six months.

Landfill Construction Documentation Report

Following DNR approval of a plan of operation for the proposed landfill and after obtaining any required local approvals, the owner can begin construction of the facility. Landfills are constructed one phase or unit at a time. During major construction steps of the landfill, DNR staff conduct inspections. Documentation (as-built) reports are prepared by the applicant's engineering consultant documenting the construction process such as the compaction of the clay liner and installation of the geomembrane liner (composite liners consisting of a 60-mil HDPE geomembrane and 4 foot thick clay liner are now required for all municipal solid waste landfills) and leachate collection pipes.

After construction, the owner must submit a comprehensive report containing a detailed narrative describing the construction of the landfill phase or unit in chronological fashion with particular emphasis given to any deviations from the approved plan of operation. The report must also include detailed documentation of all aspects of construction. This includes surveys of various grades, field and laboratory soil test results, engineering plan sheets documenting the constructed grades, the precise location of all leachate collection storage and removal structures, the specifications of materials, and photo documentation.

Chapter NR 516 [PDF exit DNR], Wis. Adm. Code, describes what elements must be included in a landfill construction documentation report. After the as-built documentation has been reviewed and approved by the assigned DNR engineer and the proofs of financial responsibility have been implemented, a final inspection of the constructed phase or unit is made before a license is issued. The landfill owner can only begin to accept waste after receipt of the license from the DNR. The review of a landfill construction documentation report is usually concluded by the DNR in a month.

Local Approval Process - Simultaneous to the DNR technical decision-making process, the applicant must seek and obtain any applicable local approvals (see Figure 2). These would include any permits or approvals required by pre-existing local ordinances to construct or operate a landfill such as zoning variances, building permits, etc. Although local approvals need only be obtained prior to construction of a landfill, as a practical matter, many applicants do not proceed to develop a feasibility report until the issue of local approvals is resolved. The local approval process has two major components: negotiation and state arbitration if a negotiated agreement cannot be reached.

Negotiation

A person proposing a new landfill or expansion of an existing landfill must apply for all local approvals at least 120 days before submitting a feasibility report to the DNR. At that time, any affected municipality (county, township, village or city within 1,500 feet of the proposed landfill's limits of filling) may choose to enter into negotiations with the applicant (Note: This distance was changed from 1,200 feet to 1,500 feet by Wis. Act 421, and the new distance became effective for all feasibility reports not approved prior to June 18, 1998). Any municipality choosing not to negotiate waives its rights to enforce any local approval requirements. In general, the site owner will offer design, financial and operational incentives to the municipality in exchange for a negotiated agreement and to gain waiver or approval of local permits. Virtually any issue is negotiable except the need for the proposed landfill and agreements which would make the owner's responsibilities under the DNR approved feasibility report less stringent. Commonly negotiated concessions on the part of the owner include: operational issues such as hours of operation, waste materials accepted, nuisance control, lighting, vehicle routes and access, aesthetic screening and fencing; recycling efforts to be implemented; private well monitoring and replacement if necessary; post-closure site use; payments to local governments for local costs of regulation, fire control, road maintenance, payments in lieu of taxes; economic protection of neighboring property owners for loss of property value; and establishment of a local advisory committee.

Arbitration

If the parties are unable to reach a negotiated settlement, they may petition the Wisconsin Waste Facility Siting Board (WWFSB) to issue an arbitration award. Each party must submit its final offer for a negotiated settlement to the WWFSB. After a hearing on the final offers, the WWFSB must select, without modification, the final offer of either the applicant or the local committee. As described above, Wisconsin's landfill siting process is complex, comprehensive and time consuming. It can take three to five years or more to plan, design and construct a new facility.

If you have questions about the siting process related to Initial Site Reports (ISR) or Feasibility Reports, please contact Brad Wolbert. If you have questions about the siting process related to Plan of Operations, please contact Bob Grefe. Questions regarding specific landfills should be directed to the Regional Contact for the county in which landfill is located. If you should have questions on the local approval process please contact David Schwarz, Executive Director of the WWFSB at (608)266-7709.

References

1. Huebner, P.M. 1996. Wisconsin's Landfill Siting Process. 9 pp.
2. Huebner, P.M. 1991. Wisconsin's Landfill Siting Process. 8 pp.
3. Schuff, R.G. 1986. Solid Waste Landfill Siting in Wisconsin an Effective Process. 12 pp.
4. Sections 144.43 - 144.447, Stats.
5. Chapters NR 500 - 538 [PDF exit DNR], Wis. Adm. Code, Register January 2006 - May 2007.