Chapter 292

292.11(7)(b) (b)

292.11(7)(b)1. 1. The person who possessed or controlled a hazardous substance which was discharged or who caused the discharge of a hazardous substance shall reimburse the department for actual and necessary expenses incurred in carrying out its duties under this subsection.

292.11(7)(b)2. 2. If the department authorizes reimbursement under subd. 1. to be paid over time, it shall require monthly payments of interest, at a rate determined by the department, on the unpaid balance of the reimbursement.

292.11(7)(c) (c) Subject to s. 94.73 (2m), the department, for the protection of public health, safety or welfare, may issue an emergency order or a special order to the person possessing, controlling or responsible for the discharge of hazardous substances to fulfill the duty imposed by sub. (3).

292.11(7)(d) (d)

292.11(7)(d)1. 1. The department may negotiate and enter into an agreement containing a schedule for conducting nonemergency actions required under sub. (3) with a person who possesses or controls a hazardous substance that was discharged or who caused the discharge of a hazardous substance if the discharge does not endanger public health.

292.11(7)(d)1m. 1m. The department may negotiate and enter into an agreement containing a schedule for conducting nonemergency actions required under sub. (3) with a local governmental unit, as defined in sub. (9) (e) 1., that is acting on behalf of owners of contaminated property within one of the following:

292.11(7)(d)1m.a. a. A business improvement district, as defined in s. 66.1109 (1) (b).

292.11(7)(d)1m.b. b. An area designated by the local governmental unit if the area consists of 2 or more properties affected by a contiguous region of groundwater contamination or contains 2 or more properties that are brownfields, as defined in s. 238.13 (1) (a).

292.11(7)(d)2. 2. The department may charge fees, in accordance with rules that it promulgates, to offset the costs of negotiating and entering into an agreement under subd. 1. or 1m.

292.11(7)(e) (e) If a person violates an order under par. (c) or an agreement under par. (d), the department may refer the matter to the department of justice for enforcement under s. 299.95.

292.11(8) (8) Access to property and records. Any officer, employee or authorized representative of the department, upon notice to the owner or occupant, may enter any property, premises or place at any time for the purposes of sub. (7) if the entry is necessary to prevent increased damage to the air, land or waters of the state, or may inspect any record relating to a hazardous substance for the purpose of ascertaining the state of compliance with this section and the management rules promulgated under this section. Notice to the owner or occupant is not required if the delay attendant upon providing it will result in imminent risk to public health or safety or the environment.

292.11(9) (9) Exemptions.

292.11(9)(a) (a) Any person holding a valid permit under ch. 283 is exempted from the reporting and penalty requirements of this section with respect to substances discharged within the limits authorized by the permit.

292.11(9)(b) (b) Law enforcement officers or members of a fire department using hazardous substances in carrying out their responsibility to protect public health, safety and welfare are exempted from the penalty requirements of this section, but shall report to the department any discharges of a hazardous substance occurring within the performance of their duties.

292.11(9)(c) (c) Any person discharging in conformity with a permit or program approved under chs. 281, 285 or 289 to 299 is exempted from the reporting and penalty requirements of this section.

292.11(9)(d) (d)

292.11(9)(d)1. 1. In this paragraph:

292.11(9)(d)1.a. a. “Fertilizer” has the meaning given in s. 94.64 (1) (e).

292.11(9)(d)1.b. b. “Label” has the meaning given in s. 94.67 (19).

292.11(9)(d)1.c. c. “Pesticide” has the meaning given in s. 94.67 (25).

292.11(9)(d)1.d. d. “Registered” means registered under the federal insecticide, fungicide, and rodenticide act, as amended (7 USC 136 et seq.), and regulations issued under that act or registered under the rules of the department of agriculture, trade and consumer protection.

292.11(9)(d)2. 2. Any person applying a registered pesticide according to the label instructions, or applying a fertilizer at or below normal and beneficial agronomic rates, is exempted with respect to the application from the reporting and penalty requirements of this section.

292.11(9)(e) (e)

292.11(9)(e)1. 1. In this paragraph, “local governmental unit” means a municipality, a redevelopment authority created under s. 66.1333, a public body designated by a municipality under s. 66.1337 (4), a community development authority or a housing authority.

292.11(9)(e)1m. 1m. Except as provided in subds. 2., 4., 6. and 7., a local governmental unit is exempt from subs. (3), (4) and (7) (b) and (c) with respect to discharges of hazardous substances on or originating from property acquired by the local government unit before, on or after October 29, 1999, if any of the following applies:

292.11(9)(e)1m.a. a. The local governmental unit acquired the property through tax delinquency proceedings or as the result of an order by a bankruptcy court.

292.11(9)(e)1m.b. b. The local governmental unit acquired the property from a local governmental unit that is exempt under this subdivision with respect to the property.

292.11(9)(e)1m.c. c. The local governmental unit acquired the property through condemnation or other proceeding under ch. 32.

292.11(9)(e)1m.d. d. The local governmental unit acquired the property for the purpose of slum clearance or blight elimination.

292.11(9)(e)1m.e. e. The local governmental unit acquired the property through escheat.

292.11(9)(e)1m.f. f. The local governmental unit acquired the property using funds appropriated under s. 20.866 (2) (ta) or (tz).

292.11(9)(e)1s. 1s. Except as provided in subds. 2. and 4. to 6., an economic development corporation described in section 501 (c) of the Internal Revenue Code, as defined in s. 71.22 (4), that is exempt from federal taxation under section 501 (a) of the Internal Revenue Code, or an entity wholly owned and operated by such a corporation, is exempt from subs. (3), (4) and (7) (b) and (c) with respect to property acquired before, on or after October 14, 1997, if the property is acquired to further the economic development purposes that qualify the corporation as exempt from federal taxation.

292.11(9)(e)2. 2. Subdivisions 1m. and 1s. do not apply to a discharge of a hazardous substance caused by any of the following:

292.11(9)(e)2.a. a. An action taken by the local governmental unit or corporation.

292.11(9)(e)2.b. b. A failure of the local governmental unit or corporation to take appropriate action to restrict access to the property in order to minimize costs or damages that may result from unauthorized persons entering the property.

292.11(9)(e)2.c. c. A failure of the local governmental unit or corporation to sample and analyze unidentified substances in containers stored aboveground on the property.

292.11(9)(e)2.d. d. A failure of the local governmental unit or corporation to remove and properly dispose of, or to place in a different container and properly store, any hazardous substance stored aboveground on the property in a container that is leaking or is likely to leak.

292.11(9)(e)4. 4. Subdivisions 1m. and 1s. do not apply if, after considering the intended development and use of the property, the department determines that action is necessary to reduce to acceptable levels any substantial threat to public health or safety when the property is developed or put to that intended use, the department directs the local governmental unit or corporation to take that necessary action and the local governmental unit or corporation does not take that action as directed.

292.11(9)(e)5. 5. Subdivision 1s. does not apply if the corporation fails to do any of the following:

292.11(9)(e)5.a. a. Respond to a discharge of a hazardous substance that poses an imminent threat to public health, safety or welfare or to the environment, on or off of the property.

292.11(9)(e)5.b. b. Enter into an agreement with the department to conduct any necessary investigation and remediation activities at the property no later than 3 years after acquiring the property.

292.11(9)(e)6. 6. Subdivisions 1m. and 1s. only apply if the local governmental unit or the economic development corporation agrees to allow the department, any authorized representatives of the department, any party that possessed or controlled the hazardous substance or caused the discharge of the hazardous substance and any consultant or contractor of such a party to enter the property to take action to respond to the discharge.

292.11(9)(e)7. 7. Subdivision 1m. does not apply to property described in subd. 1m. f. unless the local governmental unit enters into an agreement with the department to ensure that the conditions in subds. 2. and 4. are satisfied.

292.11(9)(f) (f) Any person discharging high-volume industrial waste used in a highway improvement project under s. 84.078 is exempted from the penalty requirements of this section.

292.11(10) (10) Waiver. The department may waive compliance with any requirement of this section to the extent necessary to prevent an emergency condition threatening public health, safety or welfare.

292.11(11) (11) Enforcement exclusions.

292.11(11)(a) (a) Any person proceeded against for a violation of this section shall not be subject to penalties under s. 291.97 for the same act or omission.

292.11(11)(b) (b) Any person who discharges a hazardous substance, where the responsibilities for such a discharge are prescribed by statute other than ch. 291, shall be subject to the penalty under either this section or the other section but not both.

292.11(12) (12) Applicability.

292.11(12)(a) (a) Action by the department under this section is not subject to s. 292.31.

292.11(12)(b) (b) This section applies to all releases of hazardous substances for which a notification must be made under s. 323.60 (5) (b).

292.11(13) (13) Lien. Any expenditures made by the department under sub. (4), (6) or (8) shall constitute a lien upon the property for which the expenses are incurred, as provided in s. 292.81.

292.11 History History: 1995 a. 227 ss. 700, 703 to 707, 710, 993; 1997 a. 27, 35; 1999 a. 9; 1999 a. 150 s. 672; 2001 a. 16, 30; 2007 a. 20; 2009 a. 28, 42; 2011 a. 32; 2013 a. 20; 2017 a. 59.

292.11 Cross-reference Cross-reference: See also chs. NR 702, 706, 708, 714, 716, 718, 720, 722, 724, 726, and 747, Wis. adm. code.

292.11 Annotation The owner of property from which a hazardous substance seeped into neighboring properties was required to take remedial action. The seepage was a “discharge” even though it was not related to current human activity. State v. Mauthe, 123 Wis. 2d 288, 366 N.W.2d 871 (1985).

292.11 Annotation Section 144.76 (11) (b) [now s. 292.11 (11) (b)] allows the imposition of both a monetary penalty and an administrative clean-up order against a violator of this section. When another regulatory statute is implicated, the penalty imposed may be the penalty under this section or the other section, but not both. State v. Block Iron & Supply Co. 183 Wis. 2d 357, 515 N.W.2d 332 (Ct. App. 1994).

292.11 Annotation Section 144.76 (3) [now s. 292.11 (3)] is not a safety statute. A violation is not negligence per se. Grube v. Daun, 210 Wis. 2d 681, 563 N.W.2d 523 (1997), 95-2353.

292.11 Annotation Section 144.76 [now s. 292.11] is applicable in actions by the state to compel remediation of, and to impose penalties for, hazardous waste spills, which although initially caused by actions preceding the 1978 effective date of this section, continue to discharge after that date. State v. Chrysler Outboard Corp. 219 Wis. 2d 130, 580 N.W.2d 203 (1998), 96-1158.

292.12 292.12 Sites with residual contamination.

292.12(1) (1) Definitions. In this section:

292.12(1)(a) (a) “Agency with administrative authority” means the department of agriculture, trade and consumer protection with respect to a site over which it has jurisdiction under s. 94.73 (2) or the department of natural resources with respect to a site over which it has jurisdiction under ch. 289, 291, or 292.

292.12(1)(b) (b) “Case closure” means a determination by the agency with administrative authority, based on information available at the time of the review by the agency with administrative authority, that no further remedial action is necessary at a site.

292.12(1)(d) (d) “Remedial action” means action that is taken in response to a discharge of a hazardous substance and that is necessary to restore the environment to the extent practicable and to minimize the harmful effects of the discharge to the air, lands, and waters of this state.

292.12(1)(e) (e) “Site” means a waste site or any area where a hazardous substance has been discharged.

292.12(2) (2) Agency authority. The agency with administrative authority may do any of the following as a condition of approving an interim action, as defined by the agency with administrative authority by rule, or a remedial action or of issuing a case closure letter if residual contamination remains on a site after the conclusion of an interim action or a remedial action at the site:

292.12(2)(a) (a) Require maintenance of an engineering control on the site.

292.12(2)(b) (b) Require an investigation of the extent of residual contamination and the performance of any necessary remedial action if a building or other structural impediment is removed that had prevented a complete investigation or remedial action at the site.

292.12(2)(c) (c) Impose limitations or other conditions related to property, in accordance with rules promulgated by the department, to ensure that conditions at the site remain protective of public health, safety, and welfare and the environment, and, as applicable, to promote economic development.

292.12(2)(d) (d) If the site is one for which a person is required to take action under sub. (5m) (a), require submission to the agency with administrative authority of any of the following:

292.12(2)(d)1. 1. A satisfactory plan and compliance schedule for satisfying any requirements imposed under par. (a) or (b).

292.12(2)(d)2. 2. Proof of financial responsibility, as determined by the agency with administrative authority by rule, sufficient to pay the costs of complying with a plan approved under subd. 1.

292.12(3) (3) Database.

292.12(3)(a) (a) The department shall maintain a database listing sites for which an interim action that includes the use of an engineering control or a remedial action has been approved or a case closure letter has been issued and that have residual contamination and listing sites for which the department has directed that action be taken under s. 292.11 (9) (e) 4. The department shall make the database available to the public. The department shall include any requirements, limitations, or conditions imposed under sub. (2) (a) to (c), and any information required under sub. (2) (d), in the database, subject to modification under sub. (6), and shall include any action that the department has directed to be taken under s. 292.11 (9) (e) 4.

292.12(3)(b) (b)

292.12(3)(b)1. 1. If residual contamination remains on a site after the conclusion of an interim action that includes the use of an engineering control or a remedial action at the site, the agency with administrative authority shall request the department to list the site, and any requirements, limitations, or conditions imposed under sub. (2) (a) to (c), and any information required under sub. (2) (d), in the database maintained by the department under par. (a) and, as a condition of approving remedial action or of issuing a case closure letter, shall require the person requesting approval of remedial action or case closure to provide the information necessary for the listing and to pay a fee established by the department for the listing.

292.12(3)(b)2. 2. If the department has directed that a local governmental unit or economic development corporation take action under s. 292.11 (9) (e) 4. for a site, the department shall list the site, and the action that the department has directed, in the database maintained by the department under par. (a) and require the local governmental unit or the corporation to pay a fee established by the department for the listing.

292.12(4) (4) Notification of residual contamination. Before a person applies for case closure for a site that includes any property that has residual contamination and is not owned by the person, the person shall provide written notification of the residual contamination to the owner of that property. The person shall include in the notice, at a minimum, a description of the type of residual contamination and the location and description of any engineering control or sediment cover on the site.

292.12(5) (5) Compliance with requirements and limitations and prohibition on interference.

292.12(5)(a) (a) Except as provided in par. (c) and sub. (5m) (a) and (b), a person who owns property, including a property or site that is listed under sub. (3) (b), shall comply with the requirements described in sub. (2) (a) and (b) that are imposed by an agency with administrative authority without regard to when the person obtained the property.

292.12(5)(b) (b) Except as provided in par. (c) and sub. (5m) (a) and (b), a person who owns or occupies property, including a property or site that is listed under sub. (3) (b), shall comply with the limitations or conditions described in sub. (2) (c) that are imposed by an agency with administrative authority without regard to when the person obtained or occupied the property.

292.12(5)(c) (c) If another person has entered into and is complying with a legally enforceable agreement to comply with any of the requirements, limitations, or conditions described in sub. (2) (a) to (c) that are applicable to the property and the agreement is included in the database maintained under sub. (3), the person who owns or occupies the property is not required to comply with the requirements, limitations, or conditions included in that agreement.

292.12(5)(d) (d) A person who owns or occupies property, including a property or site that is listed under sub. (3) (b), may not interfere with another person’s actions on the property that are required under sub. (2) (a) to (c).

292.12(5m) (5m) Compliance with requirements and limitations related to contaminated sediment and prohibition on interference.

292.12(5m)(a) (a) Notwithstanding the requirements under sub. (5) (a) and (b), and except as provided in par. (b), a person who is required to take action under s. 292.11 (3), (4), or (7) (b) with respect to contaminated sediment and who takes action that includes the use of an engineering control shall do all of the following:

292.12(5m)(a)1. 1. Except as provided in par. (am), comply with the requirements, limitations, and conditions described in sub. (2) (a) to (d) that are imposed by an agency with administrative authority without regard to whether the person owns or occupies the property on which the engineering control is used.

292.12(5m)(a)2. 2. If the person does not own or occupy the property on which the engineering control is used, obtain access to the property that allows for the inspection, maintenance, and reinstallation of the engineering control or the removal of the engineering control and contaminated sediment.

292.12(5m)(am) (am) If another person has entered into and is complying with a legally enforceable agreement to comply with any of the requirements, limitations, or conditions described in par. (a) 1. and the agreement is included in the database maintained under sub. (3), the person who is required to take action under par. (a) is not required to comply with the requirements, limitations, or conditions included in that agreement.

292.12(5m)(ar) (ar) A person who owns or occupies property on which an engineering control is used may not interfere with another person’s actions on the property that are required under par. (a).