84.078 Use of recovered material.

(1) In this section:

(am) “High-volume industrial waste" means fly ash, bottom ash, paper mill sludge or foundry process waste, or any other waste with similar characteristics specified by the department of natural resources by rule.

(ar) “Highway improvement" has the meaning given in s. 84.06 (1).

(bc) “Operator" has the meaning given in s. 292.31 (8) (a) 1.

(be) “Owner" has the meaning given in s. 292.31 (8) (a) 2.

(bg) “Person" means an individual, owner, operator, corporation, limited liability company, partnership, association, municipality, interstate agency, state agency or an officer or agent of a state agency, federal agency, department or instrumentality.

(bm) “Recovered material" means a material that is recovered or derived from solid waste.

(2) The department shall use or encourage the use of the maximum possible amount of recovered material, including glass, wastepaper, pavement and high-volume industrial waste as surfacing material, structural material, landscaping material and fill for all highway improvements, consistent with standard engineering practices. The department shall specify the proportion of recovered material that may be used in various types of highway improvements.

(3)

(a) Notwithstanding chs. 160, 281 to 285 and 289 to 299, no person is required to take or pay for any remedial or corrective action as a result of environmental pollution resulting from the use of high-volume industrial waste in a highway improvement project if all of the following apply:

1. The high-volume industrial waste is incorporated into the highway improvement in accordance with the policies, guidelines and rules applicable to the highway improvement at the time of the design of the improvement and at the time of certification under subd. 2.

2. The department of natural resources certifies to the department of transportation, before the time that the department of transportation advertises for bids for the improvement, that the high-volume industrial waste intended to be used and the design for the use of the high-volume industrial waste comply with all applicable state requirements or standards administered by the department of natural resources.

(b) The exemption under par. (a) extends to the transportation of high-volume industrial waste to or from the site of a highway improvement and to the storage of high-volume industrial waste at the site of a highway improvement. The exemption provided under par. (a) continues to apply after the date of certification by the department of natural resources under par. (a) 2., notwithstanding the occurrence of any of the following:

1. Statutes or rules are amended that would impose greater responsibilities on the department of transportation.

2. Alterations due to construction, maintenance, utility installation or other activities by the department of transportation or approved by the department of transportation after the completion of the highway improvement affect the high-volume industrial waste at the site of the highway improvement.

(c) The department of transportation and the department of natural resources may enter into agreements establishing standard lists of high-volume industrial waste that may be used in highway improvements and designs for the use of high-volume industrial waste in highway improvements that comply with rules of the department of natural resources applicable at the time of the design of the highway improvement in order to simplify certification under par. (a) 2. to the greatest extent possible.

(d)

1. Except as provided in subd. 3., no state agency may commence an action or proceeding under federal law to require remedial action or to recover the costs of remedying environmental pollution related to the use of high-volume industrial waste in a highway improvement certified under par. (a) 2.

2. Except as provided in subd. 3., no person may commence an action under state law to require remedial action or to recover the costs of remedying environmental pollution related to the use of high-volume industrial waste in a highway improvement certified under par. (a) 2.

3. If the department of transportation is named as a defendant or a respondent in an action or proceeding under federal law to require remedial action, or to recover the costs of remedying environmental pollution, related to the use of high-volume industrial waste in a highway improvement that satisfies the requirements under par. (a), the department of transportation may do any of the following:

a. Commence an action or proceeding under federal or state law to require remedial action, or to recover the costs of remedying environmental pollution, related to the use of high-volume industrial waste in that highway improvement.

b. Commence an action or proceeding to enforce any stipulation, agreement or judgment resulting from an action or proceeding described in this subdivision.

History: 1987 a. 27, 110; 1987 a. 403 s. 106; Stats. 1987 s. 84.078; 1989 a. 335; 1995 a. 27, 227.