Chapter 292

292.68(1)(b) (b) “PCB contaminated sediment” means sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater and that is dredged from a navigable water in this state.

292.68(2) (2) Program. The department shall administer a program to provide reimbursement to certain responsible parties for a portion of costs incurred for disposing of PCB contaminated sediment at an out-of-state hazardous waste disposal facility, as provided in this section.

292.68(3) (3) Eligible person. A person is eligible for the program under this section if the person is a responsible party, under s. 292.11 or 42 USC 9601 to 9675, for the remediation of PCB contaminated sediment or has entered into a consent decree with the department or the federal environmental protection agency under which the person undertakes the remediation of PCB contaminated sediment.

292.68(4) (4) Application. A person may seek reimbursement under this section by submitting an application to the department that contains all of the following:

292.68(4)(a) (a) Test results that show that the sediment on which the application is based contains polychlorinated biphenyls in a concentration of 50 parts per million or greater.

292.68(4)(b) (b) Documentation showing that the applicant is an eligible person under sub. (3).

292.68(4)(c) (c) Documentation showing that the PCB contaminated sediment was transported to and disposed of at a licensed hazardous waste disposal facility outside of this state and that disposal occurred on or after May 1, 2007.

292.68(4)(d) (d) Documentation showing the disposal costs, including information concerning the length and other terms of any contract for the disposal of the PCB contaminated sediment, and showing any other costs that the department determines to be reasonably necessary and attributable to the out-of-state disposal.

292.68(4)(e) (e) An estimate, in accordance with sub. (5), of what the disposal costs would be using a facility in this state that is approved for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater.

292.68(5) (5) Estimate of in-state disposal costs.

292.68(5)(a) (a) If there is a facility in this state that is approved for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater, an applicant shall make the estimate required by sub. (4) (e) using the disposal costs for that facility.

292.68(5)(b) (b) Except as provided in par. (c), if there is no facility in this state that is approved for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater, an applicant shall make the estimate required by sub. (4) (e) in one of the following ways:

292.68(5)(b)1. 1. Based on the costs of disposing of PCB contaminated sediment at facilities in other states, other than the facility that the applicant uses for disposal of the contaminated sediments, that are comparable to a facility that, if constructed in this state, would meet the applicable state and federal requirements for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater.

292.68(5)(b)2. 2. Based on the costs of constructing and operating a facility in this state that would meet the applicable state and federal requirements for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater.

292.68(5)(c) (c) If there is no facility in this state that is approved for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater and if the department has accepted, within 2 years of the date that an applicant submits an application, an estimate required by sub. (4) (e) using the method under par. (b) 1., the applicant may use that estimate to satisfy sub. (4) (e).

292.68(5)(d) (d) If an applicant is required to make an estimate under par. (b), the applicant shall include in the application an explanation of the method used to estimate the cost of transporting the PCB contaminated sediment to a facility in this state.

292.68(6) (6) Notification of completeness. When the department receives an application under sub. (4), the department shall notify the claimant whether the application is complete and, if the application is not complete, the information that the applicant must submit to complete the application.

292.68(7) (7) Decision on application.

292.68(7)(a) (a) Subject to pars. (b) and (c), the department shall approve a complete application that complies with sub. (4) and the rules promulgated under sub. (11) if the department determines that the disposal costs incurred by the applicant and any other costs that the department determines to be reasonably necessary and attributable to the out-of-state disposal exceed what the disposal costs would be using a facility in this state that meets the applicable state and federal requirements for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater.

292.68(7)(b) (b) The department may only approve reimbursement for costs incurred on or after the first day of the 24th month before the month in which the application is submitted, except that the department may approve reimbursement for costs incurred between May 1, 2007, and June 30, 2009, if the application is submitted before July 1, 2011.

292.68(7)(c) (c) The department shall deny an application if the department determines that the application is fraudulent.

292.68(8) (8) Reimbursement.

292.68(8)(a) (a) Except as provided in par. (b), if the department approves an application under sub. (4), the department shall, within 60 days of receiving the complete application, pay the applicant an amount equal to 95 percent of the amount by which the sum of the approved costs exceeds what the disposal costs would be using a facility in this state that meets the applicable state and federal requirements for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater.

292.68(8)(b) (b) If the amount determined under par. (a) exceeds the amount available in the appropriation account under s. 20.370 (6) (ev), the department shall pay the excess when additional funds become available.

292.68(9) (9) Review of decision.

292.68(9)(a) (a) No later than the 30th day after the day on which the department approves or denies an application under sub. (4), the applicant may submit a petition for reconsideration to the secretary. The secretary shall issue a decision on whether to grant the petition no later than the 20th day after the day on which the applicant submits the petition. If the secretary grants the petition, the secretary shall meet with the applicant and employees of the department and shall issue a decision on the reconsideration no later than the 30th day after the day of the meeting.

292.68(9)(b) (b) No later than the 30th day after the day on which the department approves or denies an application under sub. (4) or, if the applicant petitioned for reconsideration under par. (a), no later than the 30th day after the day on which the secretary denied the petition or issued a decision on reconsideration, the applicant may request a contested case hearing under ch. 227.

292.68(9)(c) (c) No later than the 30th day after the day on which the department approves or denies an application under sub. (4) or, if the applicant petitioned for reconsideration under par. (a), no later than the 30th day after the day on which the secretary denied the petition or issued a decision on reconsideration, or, if the applicant requested a contested case hearing under ch. 227, no later than the 30th day after the day on which the final decision on the contested case is issued, an applicant may petition for judicial review of the department’s decision on the application.

292.68(10) (10) Effect of program.

292.68(10)(a) (a) The availability of reimbursement under this section is not a bar to any other statutory or common law remedy for a responsible party to recover costs of disposing of PCB contaminated sediment. A responsible party is not required to seek reimbursement under this section before seeking any other statutory or common law remedy.

292.68(10)(b) (b) Findings and conclusions under this section are not admissible in any civil action.

292.68(11) (11) Rules. The department shall promulgate rules specifying procedures for the submission, review, and approval of claims under this section.

292.68 History History: 2007 a. 20; 2009 a. 28; 2015 a. 197 s. 51; 2015 a. 204.

292.70 292.70 Indemnification for disposal of polychlorinated biphenyls.

292.70(1) (1) Definition. In this section, “PCBs” has the meaning given in s. 299.45 (1) (a).

292.70(2) (2) Indemnification agreements concerning disposal of contaminated sediments. Subject to sub. (4), the department may enter into an agreement with a municipality under which this state agrees to indemnify the municipality and its agencies, officials, employees and agents against liability for damage to persons, property or the environment resulting from the municipality’s acceptance for disposal of sediments that are from the Great Lakes basin and are contaminated with PCBs, if the sediments are disposed of in a manner approved by the department.

292.70(3) (3) Indemnification agreements concerning treatment of contaminated leachate. Subject to sub. (4), the department may enter into an agreement with a municipality under which this state agrees to indemnify the municipality and its agencies, officials, employees and agents against any liability for damage to persons, property or the environment resulting from the municipality’s conveyance or treatment of leachate that is contaminated with PCBs and that is from a landfill that accepts sediments contaminated with PCBs, if the leachate is treated in a manner approved by the department.

292.70(4) (4) Requirements. The department may enter into an agreement under sub. (2) or (3) only if all of the following apply:

292.70(4)(a) (a) The agreement is approved by the governor and the governing body of the municipality.

292.70(4)(b) (b) The agreement specifies a method for determining whether the municipality is liable for damage described in sub. (2) or (3).

292.70(4)(c) (c) The agreement requires the municipality to notify the department and the attorney general when a claim or lawsuit to which the agreement may apply is filed against the political subdivision.

292.70(4)(d) (d) The agreement authorizes the attorney general to intervene on behalf of the municipality and this state in any lawsuit to which the agreement may apply.

292.70(4)(e) (e) The agreement requires the operator of the solid waste disposal facility or wastewater treatment facility to minimize risks related to PCBs.

292.70(4)(f) (f) The agreement authorizes the department to require the operator of the solid waste disposal facility or wastewater treatment facility to operate in a manner specified by the department in order to minimize risks related to PCBs.

292.70(6) (6) Immunity. This section and any agreement entered into under sub. (3) or (4) may not be construed as consent to sue this state.

292.70(7) (7) Review and payment. If a claim is filed under an agreement under sub. (2) or (3), the department shall review the claim to determine whether it is valid. A valid claim shall be paid from the appropriation under s. 20.370 (4) (fq).

292.70 History History: 1999 a. 9; 2017 a. 59.

292.72 292.72 Brownfields revolving loan program.

292.72(1) (1) The department may enter into an agreement with the federal environmental protection agency under which the department receives funds under 42 USC 9604 (k) (3) (A) (i) to establish and administer a brownfields revolving loan program. If the department receives funds under this subsection, it may make loans or grants for the remediation of brownfield sites, as defined in 42 USC 9601 (39), in accordance with the agreement.

292.72(2) (2) At the request of another governmental entity, the department may administer funds received under 42 USC 9604 (k) (3) (A) (i) by the other governmental entity for the establishment of a brownfields revolving loan program.

292.72 History History: 2003 a. 314.

292.81 292.81 Notice; lien.

292.81(1) (1) In this section, “valid prior lien” means a purchase money real estate mortgage that is recorded before the lien is filed under this section, including any extension or refinancing of that purchase money mortgage, or an equivalent security interest, or a 2nd or subsequent mortgage for home improvement or repair that is recorded before the lien is filed under this section, including any extension or refinancing of that 2nd or subsequent mortgage.

292.81(2) (2) 

292.81(2)(a) (a) Before incurring expenses under s. 292.11 or 292.31 (1), (3) or (7) with respect to a property, the department shall provide to the current owner of the property and to any mortgagees of record a notice containing all of the following:

292.81(2)(a)1. 1. A brief description of the property for which the department expects to incur expenses under s. 292.11 or 292.31 (1), (3) or (7).

292.81(2)(a)2. 2. A brief description of the types of activities that the department expects may be conducted at the property under s. 292.11 or 292.31 (1), (3) or (7).

292.81(2)(a)3. 3. A statement that the property owner could be liable for the expenses incurred by the department.

292.81(2)(a)4. 4. A statement that the department could file a lien against the property to recover the expenses incurred by the department.

292.81(2)(a)5. 5. An explanation of whom to contact in the department to discuss the matter.

292.81(2)(b) (b) The department shall provide notice under par. (a) by certified mail, return receipt requested, to the property owner and to each mortgagee of record at the addresses listed on the recorded documents. If the property owner is unknown or if a mailed notice is returned undelivered, the department shall provide the notice by publication thereof as a class 3 notice under ch. 985.

292.81(2)(c) (c) The failure to provide the notice or include information required under this subsection does not impair the department’s ability to file a lien or to seek to establish the property owner’s liability for the expenses incurred by the department.

292.81(2)(d) (d) No notice under this subsection is necessary in circumstances in which entry onto the property without prior notice is authorized under s. 292.11 (8).

292.81(3) (3) Any expenditures made by the department under s. 292.11 or 292.31 (1), (3) or (7) shall constitute a lien upon the property for which expenses are incurred if the department files the lien with the register of deeds in the county in which the property is located. A lien under this section shall be superior to all other liens that are or have been filed against the property, except that if the property is residential property, as defined in s. 895.52 (1) (i), the lien may not affect any valid prior lien on that residential property.

292.81(4) (4) 

292.81(4)(a) (a) Before filing a lien under sub. (3), the department shall give the owner of the property for which the expenses are incurred a notice of its intent to file the lien, as provided in this subsection.

292.81(4)(b) (b) The notice required under par. (a) shall provide all of the following:

292.81(4)(b)1. 1. A statement of the purpose of the lien.

292.81(4)(b)2. 2. A brief description of the property to be affected by the lien.

292.81(4)(b)3. 3. A statement of the expenses incurred by the department.

292.81(4)(b)4. 4. The date on or after which the lien will be filed.

292.81(4)(c) (c) The department shall serve the notice required in par. (a) on the property owner at least 60 days before filing the lien. The notice shall be provided by certified mail, return receipt requested, to the property owner and to each mortgagee of record at the addresses listed on the recorded documents. If the property owner is unknown or if a mailed notice is returned undelivered, the department shall provide the notice by publication thereof as a class 3 notice under ch. 985.

292.81(4)(d) (d) In the foreclosure of any lien filed under this subsection, ch. 846 shall control as far as applicable unless otherwise provided in this subsection. All persons who may be liable for the expenses incurred by the department may be joined as defendants. The judgment shall adjudge the amount due the department, and shall direct that the property, or so much of the property as is necessary, be sold to satisfy the judgment, and that the proceeds be brought into court with the report of sale to abide the order of the court. If the sum realized at the sale is insufficient after paying the costs of the action and the costs of making the sale, the court shall determine the liability of the defendants for the remaining unreimbursed expenses and costs.

292.81(4)(e) (e) This subsection does not apply if the lien is filed after the department obtains a judgment against the property owner and the lien is for the amount of the judgment.

292.81 History History: 1995 a. 227 s. 711; 1997 a. 27.

subch. III of ch. 292 SUBCHAPTER III

ENFORCEMENT; PENALTIES

292.93 292.93 Orders. The department may issue orders to effectuate the purposes of ss. 292.31 and 292.35 and enforce the same by all appropriate administrative and judicial proceedings.

292.93 History History: 1995 a. 227.

292.94 292.94 Fees related to enforcement actions. The department may assess and collect fees from a person who is subject to an order or other enforcement action for a violation of s. 292.11 or 292.31 to cover the costs incurred by the department to review the planning and implementation of any environmental investigation or environmental cleanup that the person is required to conduct. The department shall promulgate rules for the assessment and collection of fees under this section. Fees collected under this section shall be credited to the appropriation account under s. 20.370 (4) (dh).

292.94 History History: 2003 a. 33; 2017 a. 59.

292.95 292.95 Review of alleged violations; environmental repair and cost recovery. Any 6 or more citizens or any municipality may petition for a review of an alleged violation of s. 292.31 or 292.35 or any rule promulgated or special order, plan approval, license or any term or condition of a license issued under those sections in the following manner:

292.95(1) (1) They shall submit to the department a petition identifying the alleged violator and setting forth in detail the reasons for believing a violation occurred. The petition shall state the name and address of a person within the state authorized to receive service of answer and other papers in behalf of the petitioners and the name and address of a person authorized to appear at a hearing in behalf of the petitioners.

292.95(2) (2) Upon receipt of a petition under this section, the department may:

292.95(2)(a) (a) Conduct a hearing in the matter within 60 days of receipt of the petition. A hearing under this paragraph shall be a contested case under ch. 227. Within 60 days after the close of the hearing, the department shall either:

292.95(2)(a)1. 1. Serve written notice specifying the law or rule alleged to be violated, containing findings of fact, conclusions of law and an order, which shall be subject to review under ch. 227; or

292.95(2)(a)2. 2. Dismiss the petition.

292.95(2)(b) (b) Initiate action under s. 292.98.

292.95(3) (3) If the department determines that a petition was filed maliciously or in bad faith, it shall issue a finding to that effect, and the person complained against is entitled to recover expenses on the hearing in a civil action.