292.11(10) (10) Waiver. The department may waive compliance with any requirement of this section to the extent necessary to prevent an emergency condition threatening public health, safety or welfare.

292.11(11) (11) Enforcement exclusions.

292.11(11)(a) (a) Any person proceeded against for a violation of this section shall not be subject to penalties under s. 291.97 for the same act or omission.

292.11(11)(b) (b) Any person who discharges a hazardous substance, where the responsibilities for such a discharge are prescribed by statute other than ch. 291, shall be subject to the penalty under either this section or the other section but not both.

292.11(12) (12) Applicability.

292.11(12)(a) (a) Action by the department under this section is not subject to s. 292.31.

292.11(12)(b) (b) This section applies to all releases of hazardous substances for which a notification must be made under s. 323.60 (5) (b).

292.11(13) (13) Lien. Any expenditures made by the department under sub. (4), (6) or (8) shall constitute a lien upon the property for which the expenses are incurred, as provided in s. 292.81.

292.11 History History: 1995 a. 227 ss. 700, 703 to 707, 710, 993; 1997 a. 27, 35; 1999 a. 9; 1999 a. 150 s. 672; 2001 a. 16, 30; 2007 a. 20; 2009 a. 28, 42; 2011 a. 32; 2013 a. 20; 2017 a. 59.

292.11 Cross-reference Cross-reference: See also chs. NR 702, 706, 708, 714, 716, 718, 720, 722, 724, 726, and 747, Wis. adm. code.

292.11 Annotation The owner of property from which a hazardous substance seeped into neighboring properties was required to take remedial action. The seepage was a “discharge” even though it was not related to current human activity. State v. Mauthe, 123 Wis. 2d 288, 366 N.W.2d 871 (1985).

292.11 Annotation Section 144.76 (11) (b) [now s. 292.11 (11) (b)] allows the imposition of both a monetary penalty and an administrative clean-up order against a violator of this section. When another regulatory statute is implicated, the penalty imposed may be the penalty under this section or the other section, but not both. State v. Block Iron & Supply Co. 183 Wis. 2d 357, 515 N.W.2d 332 (Ct. App. 1994).

292.11 Annotation Section 144.76 (3) [now s. 292.11 (3)] is not a safety statute. A violation is not negligence per se. Grube v. Daun, 210 Wis. 2d 681, 563 N.W.2d 523 (1997), 95-2353.

292.11 Annotation Section 144.76 [now s. 292.11] is applicable in actions by the state to compel remediation of, and to impose penalties for, hazardous waste spills, which although initially caused by actions preceding the 1978 effective date of this section, continue to discharge after that date. State v. Chrysler Outboard Corp. 219 Wis. 2d 130, 580 N.W.2d 203 (1998), 96-1158.

292.12 292.12 Sites with residual contamination.

292.12(1) (1) Definitions. In this section:

292.12(1)(a) (a) “Agency with administrative authority” means the department of agriculture, trade and consumer protection with respect to a site over which it has jurisdiction under s. 94.73 (2) or the department of natural resources with respect to a site over which it has jurisdiction under ch. 289, 291, or 292.

292.12(1)(b) (b) “Case closure” means a determination by the agency with administrative authority, based on information available at the time of the review by the agency with administrative authority, that no further remedial action is necessary at a site.

292.12(1)(d) (d) “Remedial action” means action that is taken in response to a discharge of a hazardous substance and that is necessary to restore the environment to the extent practicable and to minimize the harmful effects of the discharge to the air, lands, and waters of this state.

292.12(1)(e) (e) “Site” means a waste site or any area where a hazardous substance has been discharged.

292.12(2) (2) Agency authority. The agency with administrative authority may do any of the following as a condition of approving an interim action, as defined by the agency with administrative authority by rule, or a remedial action or of issuing a case closure letter if residual contamination remains on a site after the conclusion of an interim action or a remedial action at the site:

292.12(2)(a) (a) Require maintenance of an engineering control on the site.

292.12(2)(b) (b) Require an investigation of the extent of residual contamination and the performance of any necessary remedial action if a building or other structural impediment is removed that had prevented a complete investigation or remedial action at the site.

292.12(2)(c) (c) Impose limitations or other conditions related to property, in accordance with rules promulgated by the department, to ensure that conditions at the site remain protective of public health, safety, and welfare and the environment, and, as applicable, to promote economic development.

292.12(2)(d) (d) If the site is one for which a person is required to take action under sub. (5m) (a), require submission to the agency with administrative authority of any of the following:

292.12(2)(d)1. 1. A satisfactory plan and compliance schedule for satisfying any requirements imposed under par. (a) or (b).

292.12(2)(d)2. 2. Proof of financial responsibility, as determined by the agency with administrative authority by rule, sufficient to pay the costs of complying with a plan approved under subd. 1.

292.12(3) (3) Database.

292.12(3)(a) (a) The department shall maintain a database listing sites for which an interim action that includes the use of an engineering control or a remedial action has been approved or a case closure letter has been issued and that have residual contamination and listing sites for which the department has directed that action be taken under s. 292.11 (9) (e) 4. The department shall make the database available to the public. The department shall include any requirements, limitations, or conditions imposed under sub. (2) (a) to (c), and any information required under sub. (2) (d), in the database, subject to modification under sub. (6), and shall include any action that the department has directed to be taken under s. 292.11 (9) (e) 4.