The violation results in a substantial economic benefit that gives the regulated entity a clear advantage over its business competitors.
The violation is identified through monitoring or sampling required by permit, statute, rule, regulation, judicial or administrative order, or consent agreement.
The violation is a violation of the same environmental requirement at the same facility and committed in the same manner as a violation previously reported by the regulated entity under sub. (3)
, unless the violation is caused by a change in business processes or activities.
The violation is discovered by the regulated entity before the beginning of the compliance audit.
(8) Consideration of actions by regulated entity.
If the department receives a report that complies with sub. (3)
from a regulated entity that qualifies under sub. (2)
for participation in the Environmental Compliance Audit Program, and the report discloses a potential criminal violation, the department and the department of justice shall take into account the diligent actions of, and reasonable care taken by, the regulated entity to comply with environmental requirements in deciding whether to pursue a criminal enforcement action and what penalty should be sought. In determining whether a regulated entity acted with due diligence and reasonable care, the department and the department of justice shall consider whether the regulated entity has demonstrated any of the following:
That the regulated entity took corrective action that was timely when the violation was discovered.
That the regulated entity exercised reasonable care in attempting to prevent the violation and to ensure compliance with environmental requirements.
That the regulated entity had a documented history of good faith efforts to comply with environmental requirements before beginning to conduct environmental compliance audits.
That the regulated entity has promptly made appropriate efforts to achieve compliance with environmental requirements since beginning to conduct environmental compliance audits and those efforts were taken with due diligence.
That the regulated entity exercised reasonable care in identifying violations in a timely manner.
That the regulated entity willingly cooperated in any investigation that was conducted by this state or a local governmental unit to determine the extent and cause of the violation.
Except as provided in par. (c)
, the department shall make any record, report, or other information obtained in the administration of this section available to the public.
The department shall keep confidential any part of a record, report, or other information obtained in the administration of this section, other than emission data or discharge data, upon receiving an application for confidential status by any person containing a showing satisfactory to the department that the part of a record, report, or other information would, if made public, divulge a method or process that is entitled to protection as a trade secret, as defined in s. 134.90 (1) (c)
, of that person.
If the department refuses to release information on the grounds that it is confidential under par. (c)
and a person challenges that refusal, the department shall inform the affected regulated entity of that challenge. Unless the regulated entity authorizes the department to release the information, the regulated entity shall pay the reasonable costs incurred by this state to defend the refusal to release the information.
does not prevent the disclosure of any information to a representative of the department for the purpose of administering this section or to an officer, employee, or authorized representative of the federal government for the purpose of administering federal law. When the department provides information that is confidential under par. (c)
to the federal government, the department shall also provide a copy of the application for confidential status.
(9m) Biennial report.
Every even-numbered year, no later than December 15, the department shall submit a progress report on the program under this section to the governor and, under s. 13.172 (3)
, to the standing committees of the legislature with jurisdiction over environmental matters. The department shall include all of the following in the report:
The number of reports received under sub. (3)
, including the number of reports by county of the facility involved and by whether the regulated entity is governmental or nongovernmental.
The number of violations reported by type, including the number of violations related to air, water, solid waste, hazardous waste, and to other specified aspects of environmental regulation and the number of violations involving each of the following:
The average time to correct the reported violations and the number of violations not yet corrected, by category under par. (b)
The number of regulated entities requiring longer than 90 days to take corrective action and a description of the stipulated penalties associated with the compliance schedules for those corrective actions.
Any recommendations for changes in the program based on discussions with interested persons, including legislators and members of the public.
Any person who intentionally makes a false statement under this section shall be fined not less than $10 nor more than $10,000 or imprisoned for not more than 6 months or both.
Hearings; procedure; review.
The department shall hold a public hearing relating to alleged or potential environmental pollution upon the verified complaint of 6 or more citizens filed with the department. The complaint shall state the name and address of a person within the state authorized to receive service of answer and other papers in behalf of complainants. The department may order the complainants to file security for costs in a sum deemed to be adequate but not to exceed $100 within 20 days after the service upon them of a copy of the order and all proceedings on the part of the complainants shall be stayed until the security is filed. The department shall serve a copy of the complaint and notice of the hearing upon the alleged or potential polluter either personally or by registered mail directed to the last-known post-office address at least 20 days prior to the time set for the hearing. The hearing shall be held not later than 90 days after the filing of the complaint. The respondent shall file a verified answer to the complaint with the department and serve a copy on the person designated by the complainants not later than 5 days prior to the date set for the hearing, unless the time for answering is extended by the department for cause shown. For purposes of any hearing under this section the hearing examiner may issue subpoenas and administer oaths. Within 90 days after the closing of the hearing, the department shall make and file its findings of fact, conclusions of law and order, which shall be subject to review under ch. 227
. If the department determines that any complaint was filed maliciously or in bad faith it shall issue a finding to that effect and the person complained against is entitled to recover the expenses of the hearing in a civil action. Any situation, project or activity which upon continuance or implementation would cause, beyond reasonable doubt, a degree of pollution that normally would require clean-up action if it already existed, shall be considered potential environmental pollution. This section does not apply to any part of the process for approving a feasibility report, plan of operation or license under subch. III of ch. 289
or s. 291.23
History: 1979 c. 176
; 1979 c. 221
; Stats. 1979 s. 144.975; 1981 c. 374
; 1995 a. 227
; Stats. 1995 s. 299.91.
Environmental surcharge. 299.93(1)(1)
If a court imposes a fine or forfeiture for a violation of a provision of this chapter or chs. 280
or a rule or order issued under this chapter or chs. 280
, the court shall impose an environmental surcharge under ch. 814
equal to the following:
If the violation was committed before July 1, 2009, 10 percent of the amount of the fine or forfeiture.
If the violation was committed on or after July 1, 2009, 20 percent of the amount of the fine or forfeiture.
If a fine or forfeiture is suspended in whole or in part, the environmental surcharge shall be reduced in proportion to the suspension.
If any deposit is made for an offense to which this section applies, the person making the deposit shall also deposit a sufficient amount to include the environmental surcharge under this section. If the deposit is forfeited, the amount of the environmental surcharge shall be transmitted to the secretary of administration under sub. (4)
. If the deposit is returned, the environmental surcharge shall also be returned.
The clerk of the court shall collect and transmit to the county treasurer the environmental surcharge and other amounts required under s. 59.40 (2) (m)
. The county treasurer shall then make payment to the secretary of administration as provided in s. 59.25 (3) (f) 2.
The secretary of administration shall deposit the amount of the surcharge in the environmental fund.
Enforcement; duty of department of justice; expenses.
The attorney general shall enforce chs. 281
and this chapter, except ss. 285.57
, and 299.64
, and all rules, special orders, licenses, plan approvals, permits, and water quality certifications of the department, except those promulgated or issued under ss. 285.57
, and 299.64
and except as provided in ss. 281.36 (14) (f)
and 299.85 (7) (am)
. Except as provided in s. 295.79 (1)
, the circuit court for Dane county or for any other county where a violation occurred in whole or in part has jurisdiction to enforce chs. 281
or this chapter or the rule, special order, license, plan approval, permit, or certification by injunctional and other relief appropriate for enforcement. For purposes of this proceeding where chs. 281
or this chapter or the rule, special order, license, plan approval, permit or certification prohibits in whole or in part any pollution, a violation is considered a public nuisance. The department of natural resources may enter into agreements with the department of justice to assist with the administration of chs. 281
and this chapter. Any funds paid to the department of justice under these agreements shall be credited to the appropriation account under s. 20.455 (1) (k)
Note: 2005 Wis. Act 347
, which affected this section, contains extensive explanatory notes.
That the violation of an order prohibiting pollution constitutes a public nuisance does not mean that there is no nuisance until an order is issued. State v. Dairyland Power Coop. 52 Wis. 2d 45
, 187 N.W.2d 878
The state need not show irreparable harm to obtain an injunction under this section. State v. C. Spielvogel & Sons, 193 Wis. 2d 464
, 535 N.W.2d 28
(Ct. App. 1995).
Penalties and remedies. 299.97(1)(1)
Any person who violates this chapter, except s. 299.15 (1)
, 299.47 (2)
, 299.50 (2)
, 299.51 (4) (b)
, 299.53 (2) (a)
, 299.62 (2)
or 299.64 (2)
, or any rule promulgated or any plan approval, license or special order issued under this chapter, except under those sections, shall forfeit not less than $10 nor more than $5,000, for each violation. Each day of continued violation is a separate offense. While the order is suspended, stayed or enjoined, this penalty does not accrue.
In addition to the penalties provided under sub. (1)
, the court may award the department of justice the reasonable and necessary expenses of the investigation and prosecution of the violation, including attorney fees. The department of justice shall deposit in the state treasury for deposit into the general fund all moneys that the court awards to the department or the state under this subsection. The costs of investigation and the expenses of prosecution, including attorney fees, shall be credited to the appropriation account under s. 20.455 (1) (gh)