Chapter 292

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.

292.21(1)(c)2.d. d. A review of historic and recent aerial photographs of the real property, if available.

292.21(1)(c)2.e. e. A review of the environmental licenses, permits or orders issued with respect to the real property.

292.21(1)(c)2.f. f. An evaluation of the results of any environmental sampling and analysis that has been conducted.

292.21(1)(c)2.g. g. A review to determine if the real property is listed in any of the written compilations of sites or facilities considered to pose a threat to human health or the environment, including the national priorities list under 42 USC 9605 (a) (8) (B); the federal environmental protection agency’s information system for the comprehensive environmental response, compensation and liability act, 42 USC 9601 to 9675, (CERCLIS); and the department’s database of sites or facilities and other properties that are environmentally contaminated required by s. 292.31 (1) (a).

292.21(1)(c)2.h. h. The collection and analysis of representative samples of soil or other materials in the ground that are suspected of being contaminated based on observations made during a visual inspection of the real property or based on aerial photographs, or other information available to the lender, including stained or discolored soil or other materials in the ground and including soil or materials in the ground in areas with dead or distressed vegetation. The collection and analysis shall identify contaminants in the soil or other materials in the ground and shall quantify concentrations.

292.21(1)(c)2.i. i. The collection and analysis of representative samples of unknown wastes or potentially hazardous substances found on the real property and the determination of concentrations of hazardous waste and hazardous substances found in tanks, drums or other containers or in piles or lagoons on the real property.

292.21(1)(c)3. 3. An environmental assessment filed under subd. 1. d. does not constitute notice required under s. 292.11 (2).

292.21(1)(d) (d) Personal property and fixtures. A lender that enforces a security interest in personal property or fixtures at a particular location, filed under ch. 409, and that does not acquire title to, or possession or control of, the real property at that location, except for purposes of protecting and removing personal property or fixtures, is not subject to s. 292.11 (3), (4) and (7) (b) and (c) and is not liable under this chapter for a discharge of a hazardous substance on that real property if all of the following conditions are satisfied:

292.21(1)(d)1. 1. Not more than 30 days after entry onto the real property where the personal property or fixtures are located, the lender notifies the department and the borrower of any decision not to accept specific personal property or fixtures.

292.21(1)(d)2. 2. Not more than 30 days after entry onto the real property where the personal property or fixtures are located, the lender provides the department with a written general description of the personal property or fixtures, the location of the personal property or fixtures on the real property and the location of the real property by street address.

292.21(1)(d)3. 3. The lender, within its ability to do so, permits reasonable access to the personal property or fixtures to the department or the borrower or others acting on the borrower’s behalf.

292.21(1)(d)4. 4. The lender does not engage in the operation of a business at the location of the personal property or fixtures, completion of work in progress or other actions associated with conducting the conclusion of the borrower’s business except for actions that are undertaken to protect the property and are approved by the department in writing.

292.21(1)(e) (e) Rules; approvals. The department may promulgate rules further specifying the activities to be carried out by a lender for the environmental assessment required under par. (c) 1. d. The department may not, by rule, require a lender to undertake sampling and analysis beyond that required under par. (c) 2. h. and i. in order to determine the degree and extent of contamination or require a lender to perform any remedial action to clean any discharge. The department may approve, by rule or in a site-specific approval, the use of reliable methods of identification other than the collection and laboratory analysis of samples.

292.21(2) (2) Responsibility of representatives.

292.21(2)(a) (a) A representative who acquires title to, or possession or control of, real or personal property is not personally liable under this chapter for a discharge of a hazardous substance if all of the following circumstances apply:

292.21(2)(a)1. 1. The representative acquires title to, or possession or control of, the real or personal property in the capacity of a representative.

292.21(2)(a)2. 2. The representative, through action or inaction, does not knowingly, willfully or recklessly cause a discharge of a hazardous substance.

292.21(2)(a)3. 3. The representative does not physically cause a discharge of a hazardous substance.

292.21(2)(a)4. 4. The representative does not have a beneficial interest in a trust, estate or similar entity that owns, possesses or controls the real or personal property.

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.