Chapter 292

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.

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

292.15(2)(ae)6. 6. The voluntary party has not obtained the certification under subd. 3. 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)7. 7. If the voluntary party owns or controls the property, the voluntary party allows the department, any authorized representative of the department, a representative of a company that has issued insurance required under subd. 3m., any party that possessed or controlled the hazardous substance or caused the discharge of the hazardous substance, and any consultant or contractor of any of those persons to enter the property to determine whether natural attenuation has failed and to take action to respond to the discharge if natural attenuation has failed.

292.15(2)(af) (af) Contaminated sediment. Except as provided in sub. (6), (6m), or (7), if there exists contaminated sediment on a property from a release of a hazardous substance on or originating from a property, the 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 before 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)(af)1. 1. An environmental investigation of the property is conducted that is approved by the department.

292.15(2)(af)2. 2. The voluntary party removes all or part of the contaminated sediment and addresses any remaining contaminated sediment in a manner approved by the department, such that 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 with respect to contaminated sediment the environment is restored to the extent practicable with respect to the discharges and the harmful effects from the discharges are minimized as determined by the department by monitoring or sampling and in accordance with any contract entered into with the department’s approval.

292.15(2)(af)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.

292.15(2)(af)3m. 3m. The voluntary party obtains and maintains insurance to cover the cost of complying with s. 292.11 (3) with respect to the contaminated sediment in the event that additional remedial action is necessary, unless additional action is not required under par. (b). The insurance shall conform with rules promulgated by the department and shall name the state as the insured. The department may waive the requirement to obtain and maintain insurance or accept a form of financial responsibility other than insurance if the hazardous substance contained in the contaminated sediment is not mercury, PCBs, as defined in s. 299.45 (1) (a), or dioxin and the department determines that insurance is not necessary.

292.15(2)(af)4. 4. If the voluntary party owns or controls the property, the voluntary party maintains and monitors the property in a manner required by the department and any contract entered into with the department’s approval.

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

292.15(2)(af)6. 6. The voluntary party has not obtained the certificate under subd. 3. 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)(af)7. 7. If the voluntary party owns or controls the property, the voluntary party allows the department, any authorized representative of the department, a representative of a company that has issued insurance required under subd. 3m., any party that possessed or controlled the hazardous substance or caused the discharge of the hazardous substance, and any consultant or contractor of those persons to enter the property to determine whether additional remedial action is necessary, subject to par. (b), and to take the necessary remedial action.

292.15(2)(ag) (ag) Property affected by off-site discharge. Except as provided in sub. (6) or (7), for a property on which there exists a hazardous substance for which a voluntary party is exempt from liability under s. 292.13 (1) or (1m), 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 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 par. (a) 1., if par. (a) 1. and 4. to 6. apply and all of the following occur at any time before or after the date of acquisition:

292.15(2)(ag)1. 1. 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 for which the voluntary party is exempt from liability under s. 292.13 (1) or (1m).

292.15(2)(ag)2. 2. 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 for which the voluntary party is exempt from liability under s. 292.13 (1) or (1m).

292.15(2)(ag)3. 3. The voluntary party obtains a written determination from the department under s. 292.13 (2) with respect to the hazardous substance for which the voluntary party is exempt from liability under s. 292.13 (1) or (1m).

292.15(2)(ag)4. 4. The voluntary party continues to satisfy the conditions under s. 292.13 (1) (d) to (g) or (1m) (d) to (g).

292.15(2)(am) (am) Partial cleanup.

292.15(2)(am)1m. 1m. Except as provided in subd. 2m., the department may approve a partial cleanup and issue a certificate of completion as provided in par. (a), (ae), (af), or (ag) that states that not all of the property has been satisfactorily restored or that not all of the harmful effects from a discharge of a hazardous substance have been minimized. Approval of a partial cleanup exempts a voluntary party from ss. 291.37 (2) and 292.11 (3), (4) and (7) (b) and (c) with respect to the portion of the property or hazardous substances cleaned up under this paragraph. In addition to meeting the requirements of par. (a), (ae), (af), or (ag), a certificate for a partial cleanup under this paragraph may be issued only if:

292.15(2)(am)1m.a. a. Public health, safety or the environment will not be endangered by any hazardous substances remaining on or originating from the property after the partial cleanup, given the manner in which the property will be developed and used and any other factors that the department considers relevant to the endangerment of public health, safety or the environment.

292.15(2)(am)1m.b. b. The activities associated with any proposed use or development of the property will not aggravate or contribute to the discharge of a hazardous substance and will not unduly interfere with, or increase the costs of, restoring the property and minimizing the harmful effects of the discharge of a hazardous substance.

292.15(2)(am)1m.c. c. The owner of the property agrees to cooperate with the department to address problems caused by hazardous substances remaining on the property. Such cooperation shall include allowing access to the property or allowing the department or its authorized representatives to undertake activities on the property, including placement of borings, equipment and structures on the property.

292.15(2)(am)2m. 2m. If there exists contaminated sediment in addition to a hazardous substance in soil or soil and groundwater on a property from a release of a hazardous substance on or originating from a property, the department may only approve a partial cleanup of the property or discharge with respect to the soil or soil and groundwater. The department may approve the partial cleanup only if, in addition to the requirements under subd. 1m., all of the following apply:

292.15(2)(am)2m.a. a. An environmental investigation of the property or discharges is conducted in a manner approved by the department.

292.15(2)(am)2m.b. b. The voluntary party, or a person who has entered into a legally enforceable agreement with the department, agrees to restore the environment to the extent practicable and minimize the harmful effects from the contaminated sediment on the property or the discharges resulting in contaminated sediment.

292.15(2)(am)2m.c. c. The voluntary party or the person who has entered into a legally enforceable agreement under subd. 2m. b. provides financial assurance to the department, in the manner required by the department, in the event that the voluntary party or the person who has entered into a legally enforceable agreement under subd. 2m. b. fails to restore the environment to the extent practicable and minimize the harmful effects from the contaminated sediment on the property or the discharges resulting in contaminated sediment.

292.15(2)(ar) (ar) Condition. The department may require the owner of the property to grant an easement or other interest in the property for any of the purposes specified in par. (am) as a condition of issuing a certificate under par. (am).

292.15(2)(at) (at) Subdivision, transfer, or other change in property. If, after the date on which the voluntary party submits the application for exemption for the property, a parcel within the property is subdivided or transferred, a parcel within the property is combined with a parcel not within the property, or any other similar change is made to parcels affecting the property, the property that is included in an application to obtain an exemption under this section shall remain the same unless the voluntary party submits an application to the department to modify the property. If the voluntary party proposes to modify the property because of a subdivision, transfer, or other change to parcels affecting the property, the voluntary party shall submit a revised application or applications to obtain an exemption under this section for the modified property or properties as defined under sub. (1) (c). If the department approves a voluntary party’s proposed modification, each parcel within the modified property not otherwise excluded under sub. (6m) or (7) shall meet all of the requirements under par. (a), (ae), (af), or (ag) to be eligible for an exemption under this section.

292.15(2)(av) (av) Withdrawal by department.

292.15(2)(av)1. 1. If at any time after a voluntary party submits an application to obtain an exemption under this section the voluntary party fails to make reasonable progress toward completion of an environmental investigation and environmental restoration of the property identified in the application, the department may withdraw the voluntary party from the process of obtaining an exemption under this section.

292.15(2)(av)2. 2. If a voluntary party fails to provide to the department requested reports or updates on the status of an environmental investigation and environmental restoration of the property identified in the voluntary party’s application for one year or longer, the department may request a written status update from the applicant. If the voluntary party does not submit the status update within 60 days or submits a status update that does not show that reasonable progress is being made, the department may withdraw the voluntary party from the process of obtaining an exemption under this section.

292.15(2)(av)3. 3. If the department decides to withdraw a voluntary party under this paragraph, the department shall provide a written notice of its decision to the voluntary party and shall return any unused portion of any advance deposit made by the voluntary party, unless otherwise directed by the voluntary party.

292.15(2)(av)4. 4. A voluntary party may not reenter the process of obtaining an exemption under this section after being withdrawn under this paragraph unless the voluntary party pays the fees under sub. (5) and enters into an agreement with the department containing a schedule for conducting the environmental investigation and environmental restoration of the property identified in the voluntary party’s application.

292.15(2)(b) (b) Extent of exemptions. The exemptions provided in pars. (a), (ae), (af), (ag) and (am) continue to apply after the date of certification by the department under par. (a) 3., (ae) 3., (af) 3., or (ag) 2., or approval by the department under par. (am), notwithstanding the occurrence of any of the following:

292.15(2)(b)1. 1. Statutes, rules or regulations are created or amended that would impose greater responsibilities on the voluntary party than those imposed under par. (a) 2., (ae) 2., (af) 2., or (ag) 1.

292.15(2)(b)2. 2. The voluntary party fully complies with the rules promulgated by the department and any contract entered into under those rules under par. (a) 2., (ae) 2. or (ag) 1., or fully complies with the requirements imposed by the department and any contract entered into with the department’s approval under par. (af) 2., but it is discovered that the cleanup fails to fully restore the environment and minimize the effects from a discharge of a hazardous substance.

292.15(2)(b)3. 3. The contamination from a hazardous substance that is the subject of the cleanup under par. (a) 2., (ae) 2., (af) 2., or (ag) 1. is discovered to be more extensive than anticipated by the voluntary party and the department.

292.15(2)(b)4. 4. If the voluntary party does not own or control the property, the person who owns or controls the property fails to maintain and monitor the property as required under rules promulgated by the department or any contract entered into under those rules.

292.15(2)(b)5. 5. If the voluntary party does not own or control the property, the person who owns or controls the property fails to allow the department, any authorized representative of the department, any representative of a company that has issued insurance required under par. (ae) 3m. or (af) 3m., any party that possessed or controlled the hazardous substance or caused the discharge of the hazardous substance, or any consultant or contractor of any of those persons to enter the property to determine whether natural attenuation has failed and to take action to respond to the discharge if natural attenuation has failed, or to determine whether additional remedial action is necessary and to take the necessary remedial action, unless additional action is not required under this paragraph.

292.15(2)(c) (c) Prohibition on action. The department of justice may not commence an action, against any voluntary party meeting the criteria of this subsection, under 42 USC 9607 to recover costs for which the voluntary party is exempt or under 43 CFR Part 11 to recover damages to natural resources resulting from a discharge for which the party is exempt under pars. (a), (ae), (af), (ag), (am), and (b).

292.15(2)(d) (d) Prohibition on requiring additional action to comply with a total maximum daily load. If a voluntary party is exempt from liability under par. (af), the department may not require the voluntary party to take additional action in relation to the discharge for which the voluntary party is exempt under par. (af) for the purpose of complying with a federally approved total maximum daily load under 33 USC 1313 (d) (1) (C), unless otherwise required under this section or s. 292.12.

292.15(2)(e) (e) Contract with insurer. If the department requires insurance under par. (ae) 3m. or (af) 3m., the department may contract with an insurer to provide insurance required under par. (ae) 3m. or (af) 3m. and may require voluntary parties to obtain coverage under the contract.

292.15(3) (3) Successors and assigns. An exemption provided in sub. (2) applies to any successor or assignee of the voluntary party if the successor or assignee complies with the provisions of sub. (2) (a) 4. and 5. or (ae) 3m., 4., 5., and 7. and, if applicable, sub. (2) (ag) 4. or (am) as though the successor or assignee were the voluntary party except that the exemption in sub. (2) does not apply if the successor or assignee knows that a certificate under sub. (2) (a) 3., (ae) 3., (ag) 2. or (am) was obtained by any of the means or under any of the circumstances specified in sub. (2) (a) 6.