Chapter 292

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.

292.15(5) (5) Fees. The department may, in accordance with rules that it promulgates, assess and collect fees from a voluntary party to offset the cost of the department’s activities under sub. (2). The fees may include an advance deposit, from which the department shall return the amount in excess of the cost of the department’s activities under sub. (2).

292.15(6) (6) Liens. This section does not exempt property from any lien filed under s. 292.81 (3) for costs incurred by the department prior to the date that certification is issued under sub. (2) (a) 3., (ae) 3. or (ag) 2.

292.15(6m) (6m) Limitation on eligibility. A voluntary party is not eligible for the exemption provided in sub. (2) (af) if the remedial action taken by the voluntary party relating to contaminated sediment includes an engineering control.

292.15(7) (7) Applicability. This section does not apply to any of the following:

292.15(7)(a) (a) A hazardous waste treatment, storage or disposal facility that first begins operation after the date on which the voluntary party acquired the property.

292.15(7)(b) (b) A licensed hazardous waste treatment, storage or disposal facility operated on the property before the date on which the voluntary party acquired the property and that is operated after the date on which the voluntary party acquired the property.

292.15(7)(c) (c) Any hazardous waste disposal facility that has been issued a license under s. 144.441 (2), 1995 stats., or s. 289.41 (1m), or rules promulgated under those sections, for a period of long-term care following closure of the facility.

292.15(7)(d) (d) A solid waste facility that is an approved facility.

292.15(7)(e) (e) A solid waste facility or waste site at which active remedial operation or treatment is required, including a site or facility where groundwater monitoring; leachate or groundwater collection or treatment; or active gas extraction is required as all or part of the remedial action.

292.15(7)(f) (f) A property that is listed or proposed to be listed on the national priorities list under 42 USC 9605 (a) (8) (B).

292.15 History History: 1993 a. 453; 1995 a. 225; 1995 a. 227 s. 712, 714, 715; 1997 a. 27, 237; 1999 a. 9, 185; 2001 a. 16; 2005 a. 418; 2007 a. 96; 2011 a. 103; 2015 a. 204; 2017 a. 70.

292.15 Annotation The Land Recycling Act. Borchert & Burke. Wis. Law. Aug. 1994.

292.15 Cross-reference Cross-reference: See also chs. NR 714, 716, 718, 720, 722, 724, 726, 750, and 754, Wis. adm. code.

292.16 292.16 Responsibility of certain municipalities acquiring closed landfills.

292.16(1) (1) Definition. In this section:

292.16(1)(a) (a) “Generator” has the meaning given in s. 292.35 (1) (b).

292.16(1)(b) (b) “Transporter” has the meaning given in s. 292.35 (1) (g).

292.16(2) (2) Application. A municipality may apply to the department for an exemption from liability with respect to property that contains a closed landfill and that is acquired by the municipality before, on or after October 14, 1997.

292.16(3) (3) Conditions for approval. The department shall approve an application under sub. (2) if all of the following apply:

292.16(3)(a) (a) The landfill is closed when the municipality acquires the property.

292.16(3)(b) (b) The landfill closure complies with all rules of the department at the time of the application under sub. (2).

292.16(3)(c) (c) The municipality did not have an ownership interest in the landfill while the landfill was in operation.

292.16(3)(d) (d) The municipality enters into an agreement with the department that contains requirements for the municipality to maintain the property.

292.16(3)(e) (e) The department determines that an exemption from liability under this section is in the public interest.

292.16(3)(f) (f) The landfill was privately owned while it was in operation.

292.16(3)(g) (g) The landfill has caused groundwater contamination.

292.16(3)(h) (h) A steering committee of local public and private representatives was formed to address the contamination caused by the landfill in a cooperative effort with the department that prevented the landfill from being listed on the national priority list under 42 USC 9605 (a) (8) (B).

292.16(3)(i) (i) The remedial action approved by the department authorized a recreational use for the property and was completed by December 31, 1995.

292.16(4) (4) Scope of exemption. An approval by the department under sub. (3) exempts the municipality from liability imposed under ss. 289.05, 289.41, 289.46, 289.95, 291.37, 291.85 (2), 292.11 (3), (4) and (7) (b) and (c) and 292.31 (8), and rules promulgated under those provisions, based on the municipality’s ownership of the property. The exemption does not apply to any liability based on hazardous substances for which the municipality is responsible as a generator or transporter.

292.16(5) (5) Requirements. If the department approves a municipality’s application under sub. (3), the municipality shall do all of the following:

292.16(5)(a) (a) Obtain the prior approval of the department for any proposed uses of the property, for any physical disturbance of the soil and for any construction on the property.

292.16(5)(b) (b) Allow access to the property by any person who is required to conduct monitoring, to operate and maintain equipment or to undertake remedial action in connection with the closed landfill.

292.16 History History: 1997 a. 27; 2013 a. 173 s. 33.

292.16 Cross-reference Cross-reference: See also ch. NR 708, Wis. adm. code.

292.19 292.19 Responsibility of persons conducting investigations.

292.19(1) (1) For purposes of this chapter, a person who conducts an investigation of property to determine the existence of, or to obtain information about, a discharge of a hazardous substance does not possess or control the hazardous substance or cause the discharge of the hazardous substance as the result of conducting the investigation.

292.19(2) (2) If the person who conducts the investigation physically causes a discharge, sub. (1) does not apply with respect to the portion of the property on which the person causes the discharge.

292.19 History History: 1997 a. 27.

292.21 292.21 Responsibility of lenders and representatives.

292.21(1) (1) Responsibility of lenders; lending activities; acquisition of property.

292.21(1)(a) (a) Lending.

292.21(1)(a)1. 1. Subject to subd. 2. and par. (b), for purposes of this chapter, a lender does not possess or control a hazardous substance or cause the discharge of a hazardous substance as a result of engaging in lending activities.

292.21(1)(a)2. 2. Subdivision 1. does not apply in any of the following situations:

292.21(1)(a)2.a. a. A lender physically causes a discharge.

292.21(1)(a)2.b. b. The lender through tortious conduct with respect to lending activities causes a discharge of a hazardous substance or exacerbates an existing discharge of a hazardous substance.

292.21(1)(a)3. 3. The department may, by rule, designate as lending activities other activities, in addition to those listed in s. 292.01 (9), that are related to undertaking appropriate actions to preserve and protect property or are related to the advancing of funds or credit or the collecting of funds.

292.21(1)(b) (b) Preacquisition inspections of real property. For purposes of this chapter, a lender does not possess or control a hazardous substance or cause the discharge of a hazardous substance as the result of inspecting real property for compliance with environmental laws, conducting any portion of an environmental assessment of the property in the manner specified in par. (c) 2., conducting an investigation to determine the degree and extent of contamination or performing remedial action to clean the discharge of a hazardous substance. This paragraph applies to a lender only if all of the following conditions are satisfied:

292.21(1)(b)1. 1. The activities described in this paragraph occur before the date on which the lender acquires title to, or possession or control of, real property through enforcement of a security interest.

292.21(1)(b)2. 2. The lender notifies the department, in accordance with s. 292.11 (2), of any discharge of a hazardous substance identified as the result of activities described in this paragraph.

292.21(1)(b)3. 3. If the lender conducts an investigation or performs remedial action, the lender does so in accordance with department rules.

292.21(1)(b)4. 4. The lender does not physically cause a discharge.

292.21(1)(b)5. 5. The lender through tortious conduct with respect to the activities described in this paragraph does not cause a new discharge of a hazardous substance or exacerbate an existing discharge of a hazardous substance.

292.21(1)(c) (c) Acquisition of real property.

292.21(1)(c)1. 1. A lender that acquires title to, or possession or control of, real property through enforcement of a security interest is not subject to s. 292.11 (3), (4) and (7) (b) and (c) and is not liable under this chapter or chs. 281, 285, 289, 291 or 293 to 299 for a discharge of a hazardous substance on that real property if all of the following conditions are satisfied:

292.21(1)(c)1.a. a. The lender, through action or inaction, does not intentionally or negligently cause a new discharge of a hazardous substance or exacerbate an existing discharge of a hazardous substance.

292.21(1)(c)1.c. c. The lender notifies the department, in accordance with s. 292.11 (2), of any known discharge of a hazardous substance.

292.21(1)(c)1.d. d. The lender conducts an environmental assessment of the real property in accordance with subd. 2. at any time, but not more than 90 days after the date the lender acquires title to, or possession or control of, the real property. The lender shall file a complete copy of the environmental assessment with the department not more than 180 days after the date the lender acquires title to, or possession or control of, the real property. If an environmental assessment is conducted more than one year before the date on which the lender acquires title to, or possession or control of, the real property, the exemption under this subd. 1. d. applies only if the lender does all of the following: visually inspects the property in accordance with subd. 2. a. and b. after the date on which the lender acquires title to, or possession or control of, the real property to verify the environmental assessment; submits a complete copy of the environmental assessment and the results of the visual inspection to the department not later than 90 days after the lender acquires title to, or possession or control of, the real property; receives notice from the department that the department determines that the environmental assessment is adequate or that the department directs the lender to address any inadequacies in the environmental assessment; corrects, to the satisfaction of the department, any inadequacies of an environmental assessment; and reimburses the department for the cost to the department of reviewing materials submitted under this subd. 1. d.

292.21(1)(c)1.e. e. For a hazardous substance released on or after the date on which the lender acquires title to, or possession or control of, the real property, the lender is not engaged in the operation of a business at the property, completion of work in progress or other actions associated with conducting the conclusion of the borrower’s business.

292.21(1)(c)1.f. f. If the discharge of a hazardous substance occurs on or after the date on which the lender acquires title to, or possession or control of, the real property, the lender implements an emergency response action in response to the discharge of the hazardous substance.

292.21(1)(c)1.g. g. The lender 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 real property to take action to respond to the discharge.

292.21(1)(c)1.h. h. The lender agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge.

292.21(1)(c)1.i. i. The lender agrees to any other condition that the department determines is reasonable and necessary to ensure that the department or other person described in subd. 1. g. can adequately respond to the discharge.

292.21(1)(c)2. 2. The environmental assessment under subd. 1. d. shall be performed by a qualified environmental technician or consultant and shall include all of the following:

292.21(1)(c)2.a. a. A visual inspection of the real property.

292.21(1)(c)2.b. b. A visual inspection and description of the personal property located on the real property that may constitute a hazardous waste or hazardous substance or that has a significant risk of being discharged.

292.21(1)(c)2.c. c. A review of the ownership and use history of the real property, including a search of title records showing prior ownership of the real property for a period of 80 years previous to the date of the visual inspection under subd. 2. b.