Chapter 292

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).

292.12(5m)(b) (b) A person who owns property from which a hazardous substance was discharged is not required to comply with sub. (2) (a) to (d) with respect to any other property containing contaminated sediment as a result of that discharge if all of the following apply:

292.12(5m)(b)1. 1. The agency with administrative authority determines that the environment, including sediment, has been satisfactorily restored to the extent practicable with respect to the discharge and the harmful effects from the discharge have been minimized.

292.12(5m)(b)2. 2. The person is a bona fide prospective purchaser under 42 USC 9601 (40).

292.12(5m)(b)3. 3. Another person has entered into and is complying with a legally enforceable agreement to comply with any of the requirements, limitations, or conditions described under sub. (2) (a) to (d) with respect to any other property containing contaminated sediment as a result of that discharge.

292.12(5m)(b)4. 4. The agreement under subd. 3. is included in the database maintained under sub. (3).

292.12(5m)(b)5. 5. The person submits information that the agency with administrative authority determines is adequate to substantiate that subds. 1. to 4. are satisfied.

292.12(5m)(c) (c) The agency with administrative authority may negotiate and enter into an agreement containing a schedule for conducting actions required under sub. (2) with any person required to take action under sub. (2) with respect to contaminated sediment.

292.12(6) (6) Modification of requirements. A person may request the agency with administrative authority over a site to change or eliminate a requirement, limitation, or condition that it imposed under sub. (2) (a) to (d) with respect to a site. If the agency with administrative authority agrees to change or eliminate a requirement, limitation, or condition imposed under sub. (2) (a) to (d), it shall provide written approval to the person, shall request the department to change the listing under sub. (3) (b) for the site accordingly, and shall require the person to pay a fee established by the department for changing the listing.

292.12 History History: 2005 a. 418; 2011 a. 32; 2013 a. 20; 2015 a. 204.

292.13 292.13 Property affected by off-site discharge.

292.13(1) (1) Exemption from liability for groundwater contamination. A person is exempt from s. 292.11 (3), (4) and (7) (b) and (c) with respect to the existence of a hazardous substance in the groundwater on property possessed or controlled by the person if all of the following apply:

292.13(1)(a) (a) The discharge of the hazardous substance originated from a source on property that is not possessed or controlled by the person.

292.13(1)(b) (b) The person did not possess or control the hazardous substance on the property on which the discharge originated or cause the original discharge.

292.13(1)(c) (c) The person conducts an investigation or submits other information, that the department determines is adequate, to substantiate that pars. (a) and (b) are satisfied.

292.13(1)(d) (d) The person 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.

292.13(1)(f) (f) The person agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge.

292.13(1)(g) (g) The person agrees to any other condition that the department determines is reasonable and necessary to ensure that the department or other person described in par. (d) can adequately respond to the discharge.

292.13(1m) (1m) Exemption from liability for soil contamination. A person is exempt from s. 292.11 (3), (4) and (7) (b) and (c) with respect to the existence of a hazardous substance in the soil, including sediments, or in vapor emitted from the soil or groundwater on property possessed or controlled by the person if all of the following apply:

292.13(1m)(a) (a) The discharge of the hazardous substance originated from a source on property that is not possessed or controlled by the person.

292.13(1m)(b) (b) The person did not possess or control the hazardous substance on the property on which the discharge originated or cause the original discharge.

292.13(1m)(c) (c) The person conducts an investigation or submits other information, that the department determines is adequate, to substantiate that pars. (a) and (b) are satisfied.

292.13(1m)(d) (d) The person 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.

292.13(1m)(e) (e) The person agrees to take one or more of the following actions at the direction of the department if, after the department has made a reasonable attempt to notify the party who caused the discharge of the hazardous substance about the party’s responsibilities under s. 292.11, the department determines that the action or actions are necessary to prevent an imminent threat to human health, safety or welfare or to the environment:

292.13(1m)(e)1. 1. Limit public access to the property.

292.13(1m)(e)2. 2. Identify, monitor and mitigate fire, explosion and vapor hazards on the property.

292.13(1m)(e)3. 3. Visually inspect the property and install appropriate containment barriers.

292.13(1m)(f) (f) The person agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge.

292.13(1m)(g) (g) The person agrees to any other condition that the department determines is reasonable and necessary to ensure that the department or other person described in par. (d) can adequately respond to the discharge.

292.13(2) (2) Determinations concerning liability. The department shall, upon request, issue a written determination that a person who possesses or controls property on which a hazardous substance exists in the soil or groundwater, or in vapor emitted from the soil or groundwater, is exempt from s. 292.11 (3), (4) and (7) (b) and (c) if the person satisfies the applicable requirements in subs. (1) and (1m). The department may revoke its determination if it determines that any of the requirements in sub. (1) or (1m) cease to be met.

292.13(3) (3) Fees. The department may, in accordance with rules that it promulgates, assess and collect fees to offset the costs of issuing determinations under sub. (2).

292.13 History History: 1997 a. 27; 1999 a. 9; 2001 a. 16; 2017 a. 70.

292.13 Cross-reference Cross-reference: See also ch. NR 749, Wis. adm. code.

292.15 292.15 Voluntary party remediation and exemption from liability.

292.15(1) (1) Definitions. In this section:

292.15(1)(a) (a) “Enforcement standard” has the meaning given in s. 160.01 (2).

292.15(1)(am) (am) “Natural attenuation” means the reduction in the mass and concentration in groundwater of a substance, and the products into which the substance breaks down, due to naturally occurring physical, chemical and biological processes, without human intervention.

292.15(1)(b) (b) “Owner of a business or entity” means any person who owns or who receives direct or indirect consideration from the operation of a business or entity regardless of whether the business or entity remains in operation and regardless of whether the person owns or receives consideration at the time any discharge of a hazardous substance occurs. “Owner of a business or entity” includes a subsidiary or parent corporation.

292.15(1)(c) (c) “Property” means the area of real property that is included in an application to obtain an exemption under this section, made up of a legally identifiable parcel or legally identifiable contiguous parcels created in compliance with applicable laws.

292.15(1)(d) (d) “Release” means the original discharge.

292.15(1)(e) (e) “Subsidiary or parent corporation” means any business entity, including a subsidiary, parent corporation or other business arrangement that has elements of common ownership or control or uses a long-term contractual arrangement with any person that has the effect of avoiding direct responsibility for conditions on a parcel of property.

292.15(1)(f) (f) “Voluntary party” means a person who submits an application to obtain an exemption under this section and pays any fees required under sub. (5).

292.15(2) (2) Exemption from liability.

292.15(2)(a) (a) General. Except as provided in sub. (6) or (7), and subject to pars. (ae) to (ag), a voluntary party is exempt from the provisions of ss. 289.05 (1), (2), (3) and (4), 289.42 (1), 289.67, 291.25 (1) to (5), 291.29, 291.37, 292.11 (3), (4) and (7) (b) and (c) and 292.31 (8), and rules promulgated under those provisions, with respect to discharges of hazardous substances on or originating from a property, if the release of those hazardous substances occurred prior to the date on which the department approves the environmental investigation of the property under subd. 1. and if all of the following occur at any time before or after the date of acquisition:

292.15(2)(a)1. 1. An environmental investigation of the property is conducted that is approved by the department.

292.15(2)(a)2. 2. The environment is restored to the extent practicable with respect to the discharges and the harmful effects from the discharges are minimized in accordance with rules promulgated by the department and any contract entered into under those rules.

292.15(2)(a)3. 3. The voluntary party obtains a certificate of completion from the department that the environment has been satisfactorily restored to the extent practicable with respect to the discharges and that the harmful effects from the discharges have been minimized.

292.15(2)(a)4. 4. If the voluntary party owns or controls the property, the voluntary party maintains and monitors the property as required under rules promulgated by the department and any contract entered into under those rules.

292.15(2)(a)5. 5. The voluntary party does not engage in activities that are inconsistent with the maintenance of the property.

292.15(2)(a)6. 6. The voluntary party has not obtained the certificate of completion by fraud or misrepresentation, by the knowing failure to disclose material information or under circumstances in which the voluntary party knew or should have known about more discharges of hazardous substances than were revealed by the investigation conducted under subd. 1.

292.15(2)(ae) (ae) Natural attenuation. Except as provided in sub. (6) or (7), if there exists a hazardous substance in groundwater on or originating from a property in a concentration that exceeds an enforcement standard and the department determines that natural attenuation will restore groundwater quality in accordance with rules promulgated by the department, a voluntary party is exempt from ss. 289.05 (1), (2), (3) and (4), 289.42 (1), 289.67, 291.25 (1) to (5), 291.29, 291.37, 292.11 (3), (4) and (7) (b) and (c) and 292.31 (8), and rules promulgated under those provisions, with respect to discharges of hazardous substances on or originating from the property, if the release of those hazardous substances occurred prior to the date on which the department approves the environmental investigation of the property under subd. 1. and if all of the following occur at any time before or after the date of acquisition:

292.15(2)(ae)1. 1. An environmental investigation of the property is conducted that is approved by the department.

292.15(2)(ae)2. 2. The environment is restored to the extent practicable with respect to the discharges and the harmful effects from the discharges are minimized in accordance with rules promulgated by the department and any contract entered into under those rules, except that this requirement does not apply with respect to the hazardous substance in groundwater that the department has determined will be brought into compliance with rules promulgated by the department through natural attenuation.

292.15(2)(ae)3. 3. The voluntary party obtains a certificate of completion from the department stating that the environment has been satisfactorily restored to the extent practicable with respect to the discharges and that the harmful effects from the discharges have been minimized, except with respect to the hazardous substance in groundwater that the department has determined will be brought into compliance with rules promulgated by the department through natural attenuation.

292.15(2)(ae)3m. 3m. If required by the department, the voluntary party obtains and maintains insurance to cover the costs of complying with s. 292.11 (3) with respect to the hazardous substance that the department has determined will be brought into compliance with rules promulgated by the department through natural attenuation, in case natural attenuation fails, and the insurance complies with rules promulgated by the department and names this state as the insured.

292.15(2)(ae)4. 4. If the voluntary party owns or controls the property, the voluntary party maintains and monitors the property as required under rules promulgated by the department and any contract entered into under those rules.