Chapter 292

292.21(2)(a)5. 5. The representative does not knowingly, willfully or recklessly fail to notify the department in accordance with s. 292.11 (2) of the discharge of a hazardous substance.

292.21(2)(b) (b) Paragraph (a) does not apply to any of the following:

292.21(2)(b)1. 1. A representative that knew or should have known that the trust, estate or similar entity for which the representative is acting as a representative was established, or that assets were transferred to the trust, estate or similar entity, in order to avoid responsibility for a discharge of a hazardous substance.

292.21(2)(b)2. 2. A representative that fails to act in good faith to cause the trust, estate or similar entity for which the representative is acting as a representative to take the actions described in s. 292.11 (3) or to reimburse the department under s. 292.11 (7) (b). It is not a lack of good faith for a representative to resign as representative, to seek a court order directing the representative to act or refrain from acting or to challenge the department by any legal means.

292.21(2)(c) (c) This subsection does not limit the responsibility of any trust, estate or similar entity to take the actions required under s. 292.11 (2), (3), (4) or (7) (c) or any other provision of this chapter or to reimburse the department under s. 292.11 (7) (b).

292.21 History History: 1995 a. 227 s. 708, 709, 993; 1997 a. 27; 1999 a. 9; 2005 a. 418.

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

292.23 292.23 Responsibility of local governmental units; solid waste.

292.23(1) (1) Definition. In this section:

292.23(1)(a) (a) “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.

292.23(1)(b) (b) “Solid waste facility” has the meaning given in s. 289.01 (35).

292.23(1)(c) (c) “Waste site” has the meaning given in s. 289.01 (41).

292.23(2) (2) Exemption from liability. Except as provided in sub. (3), a local governmental unit is exempt from s. 289.05, and rules promulgated under that section, with respect to property acquired by the local governmental unit before, on, or after June 3, 2006, if any of the following applies:

292.23(2)(a) (a) The local governmental unit acquired the property through tax delinquency proceedings or as the result of an order by a bankruptcy court.

292.23(2)(b) (b) The local governmental unit acquired the property from a local governmental unit that is exempt under this subsection with respect to the property.

292.23(2)(c) (c) The local governmental unit acquired the property through a condemnation or other proceeding under ch. 32.

292.23(2)(d) (d) The local governmental unit acquired the property for the purpose of slum clearance or blight elimination.

292.23(2)(e) (e) The local governmental unit acquired the property through escheat.

292.23(2)(f) (f) The local governmental unit acquired the property using funds appropriated under s. 20.866 (2) (ta) or (tz).

292.23(3) (3) Exceptions.

292.23(3)(a) (a) Subsection (2) does not apply with respect to environmental pollution or a discharge of a hazardous substance caused by any of the following:

292.23(3)(a)1. 1. An action taken by the local governmental unit.

292.23(3)(a)2. 2. A failure of the local governmental unit 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.

292.23(3)(a)3. 3. A failure of the local governmental unit to sample and analyze unidentified substances in containers stored aboveground on the property.

292.23(3)(a)4. 4. A failure of the local governmental unit 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.

292.23(3)(b) (b) Subsection (2) does 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 to take that necessary action, and the local governmental unit does not take that action as directed.

292.23(3)(c) (c) Subsection (2) only applies if the local governmental unit agrees to allow the department, any authorized representatives of the department, any party that possessed or controlled a hazardous substance that was discharged or that caused environmental pollution or the discharge of a hazardous substance, and any consultant or contractor of such a party to enter the property to take action to respond to the environmental pollution or discharge.

292.23(3)(d) (d) Subsection (2) does not apply to property described in sub. (2) (f) unless the local governmental unit enters into an agreement with the department to ensure that the conditions in pars. (a) and (b) are satisfied.

292.23(3)(e) (e) Subsection (2) does not apply to any solid waste facility or waste site that was operated by the local governmental unit or was owned by the local governmental unit while it was operated.

292.23(3)(f) (f) Subsection (2) does not apply to a solid waste facility that was licensed under s. 144.44, 1993 stats., or s. 289.31.

292.23(3)(g) (g) Subsection (2) does not apply to property at which the local governmental unit disposed of waste that caused environmental pollution or a discharge of a hazardous substance at the property.

292.23(3)(h) (h) Subsection (2) does not apply to waste generated on the property by the local governmental unit, its agents, or its contractors.

292.23(3)(i) (i) Subsection (2) does not apply if the local governmental unit undertakes or authorizes construction on the property without the approval of the department or if the local government unit undertakes an activity that interferes with a closed solid waste facility or waste site and that causes a threat to public health, safety, or welfare.

292.23(3)(j) (j) Subsection (2) only applies to property with respect to which, before the local governmental unit acquired the property, the department imposed requirements related to health or safety for the maintenance of an active leachate or methane collection system, of a cap over waste on the property, or of a groundwater or gas monitoring system if the local governmental unit complies with those requirements.

292.23(3)(k) (k) Subsection (2) does not exempt a local governmental unit from land use restrictions required by the department, including those that are necessary to prevent damage to a cap over waste on the property or to otherwise prevent uses of the property that may cause a threat to public health or safety.

292.23 History History: 2005 a. 418; 2007 a. 96.

292.24 292.24 Responsibility of local governmental units; hazardous waste.

292.24(1) (1) Definition. In this section, “local governmental unit” has the meaning given in s. 292.11 (9) (e) 1.

292.24(2) (2) Exemption from liability. Except as provided in sub. (3), a local governmental unit is exempt from ss. 291.25 (1) to (5), 291.29 and 291.37, and rules promulgated under those provisions, with respect to the existence of a hazardous waste discharge on property acquired in a way or for a purpose described in s. 292.11 (9) (e) 1m., if all of the following occur at any time before or after the date of acquisition:

292.24(2)(a) (a) An environmental investigation of the property is conducted that is approved by the department and that identifies any hazardous waste discharges that occurred on the property.

292.24(2)(b) (b) The hazardous waste discharges identified by the investigation under par. (a) are cleaned up by restoring the environment to the extent practicable with respect to the discharges and minimizing the harmful effects from the discharges in accordance with rules promulgated by the department and any contract entered into under those rules.

292.24(2)(c) (c) The local governmental unit obtains an approval from the department stating that the property has been satisfactorily restored to the extent practicable with respect to the hazardous waste discharges and that the harmful effects from the discharges have been minimized.

292.24(2)(d) (d) The local governmental unit maintains and monitors the property as required under rules promulgated by the department and any contract entered into under those rules.

292.24(2)(e) (e) The local governmental unit does not engage in activities that are inconsistent with the maintenance of the property.

292.24(2)(f) (f) The local governmental unit has not obtained the certification under par. (c) by fraud or misrepresentation, by the knowing failure to disclose material information or under circumstances in which the local governmental unit knew or should have known about more discharges of hazardous waste than were revealed by the investigation conducted under par. (a).

292.24(2)(g) (g) The local governmental unit did not cause the discharge of any hazardous waste identified on the property.

292.24(3) (3) Applicability. Subsection (2) does not apply to any of the following:

292.24(3)(a) (a) A hazardous waste treatment, storage or disposal facility that first begins operation after the date on which the local governmental unit acquired the property.

292.24(3)(b) (b) A licensed hazardous waste treatment, storage or disposal facility operated on the property before the date on which the local governmental unit acquired the property and that is operated after the date on which the local governmental unit acquired the property.

292.24(3)(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.

292.24 History History: 1999 a. 9.

292.25 292.25 Report on impact of exemptions from liability.

292.25(1) (1) The department shall biennially determine all of the following:

292.25(1)(a) (a) The number of sites for which a person is seeking to qualify for an exemption under s. 292.15.

292.25(1)(b) (b) The number of sites for which a certificate of completion was issued under s. 292.15.

292.25(1)(c) (c) The number of sites for which a certificate of completion was issued under s. 292.15 at which it is discovered that the cleanup failed or at which additional hazardous substances are found after the certificate of completion was issued.

292.25(1)(d) (d) The number of sites described in par. (b) at which the department has determined that it is necessary to conduct remedial action using moneys from the environmental fund and the estimated costs of performing that remedial action.

292.25(1)(e) (e) The number of sites for which a claim was made against an insurance policy required under s. 292.15 (2) (ae).

292.25(1)(f) (f) The number of sites for which a claim was made against an insurance policy required under s. 292.15 (2) (af).

292.25(2) (2) No later than September 15 of each even-numbered year, the department shall submit a report describing its determinations under sub. (1) to the legislature under s. 13.172 (2), to the governor and to the department of administration.

292.25(3) (3) The department may require a person to provide information necessary for the department to make the determinations under sub. (1).

292.25 History History: 1999 a. 9; 2015 a. 204.

292.255 292.255 Report on brownfield efforts. The department of natural resources, the department of administration, and the Wisconsin Economic Development Corporation shall submit a report evaluating the effectiveness of this state’s efforts to remedy the contamination of, and to redevelop, brownfields, as defined in s. 238.13 (1) (a).

292.255 History History: 1999 a. 9, 84; 2007 a. 20; 2011 a. 32.

292.26 292.26 Civil immunity; local governmental units.

292.26(1) (1) In this section, “local governmental unit” has the meaning given in s. 292.11 (9) (e) 1.

292.26(2) (2) Except as provided in sub. (3), a local governmental unit is immune from civil liability related to the discharge of a hazardous substance on or from property formerly owned or controlled by the local governmental unit if the property is no longer owned by the local governmental unit at the time that the discharge is discovered and if any of the following applies:

292.26(2)(a) (a) The local governmental unit acquired the property through tax delinquency proceedings or as the result of an order by a bankruptcy court.

292.26(2)(b) (b) The local governmental unit acquired the property from a local governmental unit that acquired the property under a method described in par. (a).

292.26(2)(c) (c) The local governmental unit acquired the property through condemnation or other proceeding under ch. 32.

292.26(2)(d) (d) The local governmental unit acquired the property for the purpose of slum clearance or blight elimination.

292.26(3) (3) Subsection (2) does not apply with respect to a discharge of a hazardous substance caused by an activity conducted by the local governmental unit while the local governmental unit owned or controlled the property.

292.26 History History: 1997 a. 27.

292.31 292.31 Environmental repair.

292.31(1) (1) Database; analysis.

292.31(1)(a) (a) Database.

292.31(1)(a)1. 1. The department shall compile, maintain, and make available to the public a database of all sites or facilities and other properties at which the discharge of a hazardous substance or other environmental pollution has been reported to the department. The department shall update the database regularly.

292.31(1)(a)3. 3. The decision of the department to include a site or facility or other property on the database under subd. 1. or exclude a site or facility or other property from the database is not subject to judicial review.

292.31(1)(a)4. 4. Notwithstanding s. 227.01 (13) or 227.10 (1), the database under subd. 1. is not a rule.

292.31(1)(b) (b) Investigation; analysis.

292.31(1)(b)1. 1. The department may take direct action under subd. 2. or 3. or may enter into a contract with any person to take the action.

292.31(1)(b)2. 2. The department may conduct an investigation, analysis and monitoring of a site or facility and areas surrounding the site or facility to determine the existence and extent of actual or potential environmental pollution from the site or facility including, but not limited to, monitoring by means of installing test wells or by testing water supplies. The department may conduct an investigation to identify persons who are potentially responsible for actual or potential environmental pollution from a site or facility. If the department conducts an investigation to identify persons who are potentially responsible for actual or potential environmental pollution from a site or facility, the department shall make a reasonable effort to identify as many persons as possible responsible for the environmental pollution.

292.31(1)(b)3. 3. The department may determine whether a site or facility presents a substantial danger to public health or welfare or the environment and evaluate the magnitude of the danger.

292.31(1)(d) (d) Access to information. Upon the request of any officer, employee or authorized representative of the department, any person who generated, transported, treated, stored or disposed of solid or hazardous waste which may have been disposed of at a site or facility under investigation by the department shall provide the officer, employee or authorized representative access to any records or documents in that person’s custody, possession or control which relate to:

292.31(1)(d)1. 1. The type and quantity of waste generated, transported, treated or stored which was disposed of at the site or facility and the dates of these activities.

292.31(1)(d)2. 2. The identity of persons who generated, transported, treated or stored waste which was disposed of at the site or facility.

292.31(1)(d)3. 3. The identity of subsidiary or parent corporations, as defined in sub. (8) (a) 3., of persons who generated, transported, treated or stored waste which was disposed of at the site or facility.

292.31(2) (2) Environmental response rules. The department shall promulgate rules relating to investigation and remedial action for sites or facilities and other properties at which the air, land, or waters of the state have been affected by the discharge of a hazardous substance or other environmental pollution, including all of the following provisions:

292.31(2)(a) (a) Methods for investigating the degree and extent of contamination for actions under sub. (3).