Chapter 292

292.31(7)(c)4. 4. All moneys received under this paragraph shall be credited to the environmental fund for environmental management.

292.31(7)(d) (d) The department may enter into an agreement with a responsible party under the federal Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC 9601 to 9675, to provide management and technical support for a remedial action under the act. A responsible party shall reimburse the department for the costs the department incurs under an agreement, using the hourly billing rate calculated under s. NR 750.07 (2), Wis. Adm. Code.

292.31(8) (8) Recovery of expenditures.

292.31(8)(a) (a) Definitions. In this subsection:

292.31(8)(a)1. 1. “Operator” means any person who operates a site or facility or who permits the disposal of waste at a site or facility under his or her management or control for consideration, regardless of whether the site or facility remains in operation and regardless of whether the person operates or permits disposal of waste at the time any environmental pollution occurs. This term includes a subsidiary or parent corporation.

292.31(8)(a)2. 2. “Owner” means any person who owns or who receives direct or indirect consideration from the operation of a site or facility regardless of whether the site or facility remains in operation and regardless of whether the person owns or receives consideration at the time any environmental pollution occurs. This term includes a subsidiary or parent corporation.

292.31(8)(a)3. 3. “Subsidiary or parent corporation” means any business entity, including a subsidiary, parent corporation or other business arrangement which has elements of common ownership or control or uses a long-term contractual arrangement with any person to avoid direct responsibility for conditions at a site or facility.

292.31(8)(b) (b) Applicability.

292.31(8)(b)1. 1. This subsection does not apply to the release or discharge of a substance which is in compliance with a permit, license, approval, special order, waiver or variance issued under this chapter or ch. 30, 31 or 283, or under corresponding federal statutes or regulations.

292.31(8)(b)2. 2. This subsection applies to an owner who purchases the land where a site or facility is located only if the owner knew or should have known of the existence of the site or facility at the time of purchase.

292.31(8)(b)3. 3. This subsection does not apply to the release or discharge of high-volume industrial waste used in a highway improvement project under s. 84.078.

292.31(8)(c) (c) Persons responsible.

292.31(8)(c)1. 1. An owner or operator is responsible for conditions at a site or facility which presents a substantial danger to public health or welfare or the environment if the person knew or should have known at the time the disposal occurred that the disposal was likely to result in or cause the release of a substance into the environment in a manner which would cause a substantial danger to public health or welfare or to the environment.

292.31(8)(c)2. 2. Any person, including an owner or operator and including a subsidiary or parent corporation which is related to the person, is responsible for conditions at a site or facility which present a substantial danger to public health or welfare or the environment if:

292.31(8)(c)2.a. a. The person violated any applicable statute, rule, plan approval or special order in effect at the time the disposal occurred and the violation caused or contributed to the condition at the site or facility; or

292.31(8)(c)2.b. b. The person’s action related to the disposal caused or contributed to the condition at the site or facility and would result in liability under common law in effect at the time the disposal occurred, based on standards of conduct for that person at the time the disposal occurred.

292.31(8)(d) (d) Right of action. A right of action shall accrue to the state against any person responsible under par. (c) if an expenditure is made for environmental repair at the site or facility or if an expenditure is made under sub. (7).

292.31(8)(e) (e) Interest payment. If the department authorizes an amount that the state is entitled to recover under this subsection to be paid over time, it shall require monthly payments of interest, at a rate determined by the department, on the unpaid balance of that amount.

292.31(8)(f) (f) Action to recover costs. The attorney general shall take action as is appropriate to recover expenditures to which the state is entitled.

292.31(8)(g) (g) Disposition of funds. If the original expenditure was made from the environmental repair fund, under s. 25.46, 1987 stats., or the environmental fund, the net proceeds of the recovery shall be paid into the environmental fund for environmental management. If the original expenditure was made from the investment and local impact fund, the net proceeds of the recovery shall be paid into the investment and local impact fund.

292.31(8)(h) (h) Cleanup agreements; waiver of cost recovery. The department and any person who is responsible under par. (c) may enter into an agreement regarding actions which the department is authorized to take under sub. (3). In the agreement, the department may specify those actions under sub. (3) which the responsible person may take. As part of the agreement, the department may agree to reduce the amount which the state is entitled to recover under this subsection or to waive part or all of the liability which the responsible person may have under this subsection.

292.31(8)(i) (i) Lien. Any expenditures made by the department under sub. (1), (3) or (7) shall constitute a lien upon the property for which the expenses are incurred, as provided in s. 292.81.

292.31(9) (9) Relation to other laws. The department shall coordinate its efforts under this section with the federal environmental protection agency acting under the comprehensive environmental response, compensation and liability act, 42 USC 9601, et seq. The department may not duplicate activities or efforts of the federal environmental protection agency if such duplication is prohibited under 42 USC 9601, et seq.

292.31(10) (10) Liability.

292.31(10)(a) (a) No common law liability, and no statutory liability which is provided in other statutes, for damages resulting from a site or facility is affected in any manner by this section. The authority, power and remedies provided in this section are in addition to any authority, power or remedy provided in any other statutes or provided at common law.

292.31(10)(b) (b) If a person takes any remedial action at a site or facility, whether or not an agreement is entered into with the department under sub. (8) (h), any agreement and the action taken are not evidence of liability or an admission of liability for any potential or actual environmental pollution.

292.31 History History: 1995 a. 227 ss. 605 to 610, 612; 1995 a. 378 s. 45; 1997 a. 27; 2001 a. 16; 2005 a. 418; 2009 a. 28; 2011 a. 167; 2013 a. 20; 2015 a. 197 s. 51; 2017 a. 59; 2017 a. 365 s. 112.

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

292.33 292.33 Local government cost recovery cause of action.

292.33(1) (1) Definition. In this section “local governmental unit” has the meaning given in s. 292.11 (9) (e) 1.

292.33(2) (2) Cause of action. Except as provided in sub. (6), a local governmental unit may recover costs as provided in sub. (4) from a responsible person described in sub. (3) if the costs are incurred in connection with a property acquired as provided in s. 292.11 (9) (e) 1m. on which a hazardous substance has been discharged.

292.33(3) (3) Responsible persons.

292.33(3)(a) (a) Except as provided in par. (b), a local governmental unit may recover costs in an action under this section from any of the following:

292.33(3)(a)1. 1. A person who, at the time that the local governmental unit acquired the property, possessed or controlled the hazardous substance that was discharged on the property.

292.33(3)(a)2. 2. A person who caused the discharge of the hazardous substance on the property.

292.33(3)(b) (b) A local governmental unit may not recover costs in an action under sub. (2) from a person listed in par. (a) if any of the following applies:

292.33(3)(b)1. 1. The person is exempt from liability under s. 292.11 (9) (e), 292.13, 292.15, 292.16, 292.19 or 292.21 with respect to the discharge that is the subject of the action.

292.33(3)(b)2. 2. The person has entered into a consent order under this chapter or ch. 289 or 291 or an agreement under s. 292.11 (7) (d) or 292.31 (8) (h) with respect to the discharge that is the subject of the action and the person is in compliance with the consent order or agreement.

292.33(3)(b)3. 3. The person is exempt from liability under s. 292.35 (9) (e) with respect to the discharge that is the subject of the action.

292.33(3)(b)4. 4. The discharge that was caused by the person and that is the subject of the action was in compliance with a permit, license, approval, special order, waiver or variance issued under ch. 283 or 285 or under corresponding federal statutes or regulations.

292.33(4) (4) Recoverable costs.

292.33(4)(a) (a) Except as provided in par. (b), in an action under this section a local governmental unit may recover the reasonable and necessary costs that it incurs for all of the following:

292.33(4)(a)1. 1. Investigating environmental contamination on the property and planning remedial activities described in subd. 2.

292.33(4)(a)2. 2. Conducting remedial activities to restore the property for its intended future use.

292.33(4)(a)3. 3. Administering the activities under subds. 1. and 2. and bringing the action under this section, including costs, disbursements and engineering fees but excluding attorney fees.

292.33(4)(b) (b) The costs determined under par. (a) shall be reduced by the fair market value of the property after completion of the activities under par. (a) 2.

292.33(4)(c) (c) Recoverable costs under this subsection may not be reduced by the amount of any state or federal moneys received by the local governmental unit for any of the activities under par. (a).

292.33(4)(d) (d)

292.33(4)(d)1. 1. In an action under this section, the liability of a responsible person described in sub. (3) (a) 2. is limited to the amount that bears the same proportion to the total costs under par. (a), adjusted as provided in par. (b), as the amount of the environmental pollution on the property from the discharge caused by the responsible person bears to all of the environmental pollution on the property from discharges of hazardous substances.

292.33(4)(d)2. 2. In an action under this section, the liability of a responsible person described in sub. (3) (a) 1. is limited to the amount of the total costs under par. (a), adjusted as provided in par. (b), that the local governmental unit is unable to recover from responsible parties described in sub. (3) (a) 2. less the amount that the local governmental unit is unable to recover because of the exemptions in sub. (3) (b) 3. and 4.

292.33(5) (5) Repaying state assistance. If a local governmental unit that recovers costs under this section received money from this state, other than under s. 292.11 (7) or 292.31 (1), (3) or (7), for any of the activities under sub. (4) (a), the local governmental unit shall reimburse to the state an amount that bears the same proportion to the total amount recovered under this section as the amount received from the state, other than under s. 292.11 (7) or 292.31 (1), (3) or (7), bears to the total costs under sub. (4) (a) adjusted as provided in sub. (4) (b).

292.33(6) (6) Exception. A local governmental unit may not recover costs under this section for remedial activities conducted on a property or portion of a property with respect to a discharge after the department of natural resources, the department of safety and professional services, or the department of agriculture, trade and consumer protection has indicated that no further remedial activities are necessary on the property or portion of the property with respect to the discharge.

292.33(7) (7) Limitation of action. An action under this section shall be commenced within 6 years after the date that the local governmental unit completes the activities under sub. (4) (a) 2. or be barred.

292.33 History History: 1999 a. 9; 2011 a. 32.

292.35 292.35 Local governmental unit negotiation and cost recovery.

292.35(1) (1) Definitions. In this section:

292.35(1)(am) (am) “Financial assistance” means money, other than a loan, provided by a governmental unit that is not a responsible party to pay a portion of the cost of investigation and remedial action for a site or facility.

292.35(1)(b) (b) “Generator” means a person who, by contract, agreement or otherwise, either arranges or arranged for disposal or treatment, or arranges or arranged with a transporter for transport for disposal or treatment, of a hazardous substance owned or possessed by the person, if the disposal or treatment is done by another person at a site or facility owned and operated by another person and the site or facility contains the hazardous substance.

292.35(1)(bm) (bm) “Local governmental unit” means a municipality, a redevelopment authority created under s. 66.1333 or a public body designated by a municipality under s. 66.1337 (4).

292.35(1)(c) (c) “Owner or operator” means any of the following:

292.35(1)(c)1. 1. If the property is taken for tax delinquency, a person who owns or operates a site or facility at the time that the site or facility is taken for tax delinquency.

292.35(1)(c)2. 2. A person who owns or operates a site or facility at the time that the disposal or discharge of a hazardous substance at the site or facility occurs.

292.35(1)(e) (e) “Responsible party” means a generator, an owner or operator, a transporter or a person who possesses or controls a hazardous substance that is discharged or disposed of or who causes the discharge or disposal of a hazardous substance.

292.35(1)(f) (f) “Site or facility” means an approved facility, an approved mining facility, a nonapproved facility, a waste site or any site where a hazardous substance is discharged on or after May 21, 1978.

292.35(1)(g) (g) “Transporter” means a person who accepts or accepted a hazardous substance for transport to a site or facility.

292.35(2) (2) Applicability. This section only applies to a site or facility if one of the following criteria is satisfied:

292.35(2)(a) (a) The site or facility is owned by a local governmental unit.

292.35(2)(b) (b) A local governmental unit that owns a portion of the site or facility commits itself, by resolution of its governing body, to paying more than 50 percent of the amount equal to the difference between the cost of investigation and remedial action for the site or facility and any financial assistance received for the site or facility.

292.35(2g) (2g) Identification of responsible parties.

292.35(2g)(a) (a) A local governmental unit that intends to use the cost recovery procedures in this section shall attempt to identify all responsible parties. All information obtained by the local governmental unit regarding responsible parties is a public record and may be inspected and copied under s. 19.35.

292.35(2g)(b) (b) Upon the request of an employee or authorized representative of the local governmental unit, or pursuant to a special inspection warrant under s. 66.0119, any person who generated, transported, treated, stored or disposed of a hazardous substance that may have been disposed of or discharged at the site or facility or who is or was an owner or operator shall provide the employee or authorized representative access to any records or documents in that person’s custody, possession or control that relate to all of the following:

292.35(2g)(b)1. 1. The type and quantity of hazardous substance that was disposed of or discharged at the site or facility and the dates of the disposal or discharge.

292.35(2g)(b)2. 2. The identity of any person who may be a responsible party.

292.35(2g)(b)3. 3. The identity of subsidiary or parent corporations, as defined in s. 292.31 (8) (a) 3., of any person who may be a responsible party.

292.35(2g)(c) (c) The local governmental unit shall maintain a single repository that is readily accessible to the public for all documents related to responsible parties, the investigation, the remedial action and plans for redevelopment of the property.

292.35(2r) (2r) Preliminary remedial action plan.

292.35(2r)(a) (a) The local governmental unit shall, in consultation with the department, prepare a draft remedial action plan.

292.35(2r)(b) (b) Upon completion of the draft remedial action plan, the local governmental unit shall send written notice to all responsible parties identified by the local governmental unit, provide public notice and conduct a public hearing on the draft remedial action plan. The notice to responsible parties shall offer the person receiving the notice an opportunity to provide information regarding the status of that person or any other person as a responsible party, notice and a description of the public hearing and a description of the procedures in this section. At the public hearing, the local governmental unit shall solicit testimony on whether the draft remedial action plan is the least costly method of meeting the standards for remedial action promulgated by the department by rule. The local governmental unit shall accept written comments for at least 30 days after the close of the public hearing.

292.35(2r)(c) (c) Upon the conclusion of the period for written comment, the local governmental unit shall prepare a preliminary remedial action plan, taking into account the written comments and comments received at the public hearing and shall submit the preliminary remedial action plan to the department for approval. The department may approve the preliminary remedial action plan as submitted or require modifications.

292.35(3) (3) Offer to settle; selection of umpire.

292.35(3)(a) (a) Upon receiving the department’s approval of the preliminary remedial action plan, the local governmental unit shall serve an offer to settle regarding the contribution of funds for investigation and remedial action at the site or facility on each of the responsible parties identified by the local governmental unit, using the procedure for service of a summons under s. 801.11 and shall notify the department that the offer to settle has been served. The local governmental unit shall include in the offer to settle all of the following information:

292.35(3)(a)1. 1. The amount of the offer and a rationale for the amount.

292.35(3)(a)2. 2. The names, addresses and contact persons, to the extent known, for all of the responsible parties identified by the local governmental unit.

292.35(3)(a)3. 3. The location and availability of documents that support the claim of the local governmental unit against the responsible party.

292.35(3)(a)4. 4. The location of the public repository where documents relating to the site or facility are maintained, the times during which the repository is open and the name and telephone number of the contact person at the repository.

292.35(3)(a)5. 5. A description of the procedures under this section.

292.35(3)(b) (b) The department shall maintain a list of competent and disinterested umpires qualified to perform the duties under subs. (4) to (6). None of the umpires may be employees of the department. Upon receiving notice from a local governmental unit under par. (a), the secretary or his or her designee shall select an umpire from the list and inform the local governmental unit and responsible parties of the person selected.

292.35(3)(c) (c) Within 10 days after receiving notice of the umpire selected by the department under par. (b), the local governmental unit may notify the department that the umpire selected is unacceptable. Within 10 days after receiving notice of the umpire selected by the department under par. (b), a responsible party may notify the department that the umpire selected is unacceptable or that the responsible party does not intend to participate in the negotiation. Failure to notify the department that the umpire is unacceptable shall be considered acceptance. If all responsible parties identified by the local governmental unit indicate that they do not intend to participate in the negotiation, the department shall inform the local governmental unit and the local governmental unit shall cease further action under this section.

292.35(3)(d) (d) Upon receiving notice under par. (c) that the selected umpire is unacceptable, the secretary or his or her designee shall select 5 additional umpires from the list and inform the local governmental unit and responsible parties of the persons selected.