Wisconsin Legislature: 27,3667

c. Whose act or omission constitutes gross negligence or involves reckless, wanton or intentional misconduct.

27,3661 Section 3661 . 292.13 of the statutes is created to read:

292.13 Property affected by off-site discharge. (1) Exemption from liability for groundwater contamination. A person, other than a state agency, is exempt from s. 292.11 (3), (4) and (7) (b) and (c) with respect to the existence of a hazardous substance in the groundwater on property possessed or controlled by the person if all of the following apply:

(a) The discharge of the hazardous substance originated from a source on property that is not possessed or controlled by the person.

(b) The person did not possess or control the hazardous substance on the property on which the discharge originated or cause the original discharge.

(c) The person conducts an investigation or submits other information, that the department determines is adequate, to substantiate that pars. (a) and (b) are satisfied.

(d) The person 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 property to take action to respond to the discharge.

(f) The person agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge.

(g) The person agrees to any other condition that the department determines is reasonable and necessary to ensure that the department or other person described in par. (d) can adequately respond to the discharge.

(1m) Exemption from liability for soil contamination. A person, other than a state agency, is exempt from s. 292.11 (3), (4) and (7) (b) and (c) with respect to the existence of a hazardous substance in the soil on property possessed or controlled by the person if all of the following apply:

(a) The discharge of the hazardous substance originated from a source on property that is not possessed or controlled by the person.

(b) The person did not possess or control the hazardous substance on the property on which the discharge originated or cause the original discharge.

(c) The person conducts an investigation or submits other information, that the department determines is adequate, to substantiate that pars. (a) and (b) are satisfied.

(e) The person agrees to take one or more of the following actions at the direction of the department if, after the department has made a reasonable attempt to notify the party who caused the discharge of the hazardous substance about the party's responsibilities under s. 292.11, the department determines that the action or actions are necessary to prevent an imminent threat to human health, safety or welfare or to the environment:

1. Limit public access to the property.

2. Identify, monitor and mitigate fire, explosion and vapor hazards on the property.

3. Visually inspect the property and install appropriate containment barriers.

(f) The person agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge.

(2) Determinations concerning liability. The department shall, upon request, issue a written determination that a person who possesses or controls property on which a hazardous substance exists in the soil or groundwater is exempt from s. 292.11 (3), (4) and (7) (b) and (c) if the person satisfies the applicable requirements in subs. (1) and (1m). The department may revoke its determination if it determines that any of the requirements in sub. (1) or (1m) cease to be met.

(3) Fees. The department may, in accordance with rules that it promulgates, assess and collect fees to offset the costs of issuing determinations under sub. (2).

27,3662 Section 3662 . 292.15 (title) of the statutes is amended to read:

292.15 (title) Remediated property; purchaser Voluntary party remediation and exemption from liability.

27,3663 Section 3663 . 292.15 (1) (c) (intro.) of the statutes is repealed.

27,3664 Section 3664. 292.15 (1) (c) 1. of the statutes is renumbered 292.15 (1) (f) 3.

27,3665 Section 3665. 292.15 (1) (c) 2. of the statutes is repealed.

27,3666 Section 3666. 292.15 (1) (c) 3. of the statutes is renumbered 292.15 (1) (f) 1. and amended to read:

292.15 (1) (f) 1. The person did not otherwise cause the release discharge of a hazardous substance on the property.

27,3667 Section 3667. 292.15 (1) (f) (intro.) of the statutes is created to read:

292.15 (1) (f) (intro.) “Voluntary party" means a person to whom all of the following apply:

27,3667bg Section 3667bg. 292.15 (1) (f) 1m. of the statutes is created to read:

292.15 (1) (f) 1m. The person did not intentionally or recklessly cause the release of a hazardous substance on the property.

27,3668 Section 3668. 292.15 (1) (f) 2. of the statutes is created to read:

292.15 (1) (f) 2. The person did not control, prior to its discharge, a hazardous substance that was discharged on the property.

27,3669 Section 3669 . 292.15 (2) (a) of the statutes is amended to read:

292.15 (2) (a) A purchaser Except as provided in sub. (6), a voluntary party is exempt from the provisions of s. ss. 289.05 (1), (2), (3) and (4), 289.42 (1), 289.67, 291.25 (1) to (5), 291.29, 291.37, 292.11 (3), (4) and (7) (b) and (c) and 292.31 (8), and rules promulgated under those provisions, with respect to the existence of a hazardous substance on the property the release of which occurred prior to the date of acquisition of the property, if all of the following occur at any time before or after the date of acquisition:

1. The purchaser conducts a thorough An environmental investigation of the property is conducted that is approved by the department or the person from whom the purchaser acquires the property conducts a thorough environmental investigation of the property under a contract with the purchaser and the investigation is approved by the department.

2. Except as provided in sub. (4), the purchaser cleans up the property is cleaned up by restoring the environment to the extent practicable and minimizing the harmful effects from a release discharge of a the hazardous substance in accordance with rules promulgated by the department and any contract entered into under those rules.

3. The purchaser voluntary party obtains a certification certificate of completion from the department that the property has been satisfactorily restored to the extent practicable and that the harmful effects from a release discharge of a hazardous substance have been minimized.

4. The purchaser voluntary party maintains and monitors the property as required under rules promulgated by the department and any contract entered into under those rules.

5. The purchaser voluntary party does not engage in activities that are inconsistent with the maintenance of the property.

6. The purchaser voluntary party has not obtained the certification under subd. 3. by fraud or misrepresentation, by the knowing failure to disclose material information or under circumstances in which the purchaser voluntary party knew or should have known about more environmental pollution discharges of hazardous substances than was were revealed by the investigation conducted under subd. 1.

27,3670 Section 3670 . 292.15 (2) (am) of the statutes is created to read:

292.15 (2) (am) The department may approve a partial cleanup and issue a certificate of completion as provided in par. (a) that states that not all of the property has been satisfactorily restored or that not all of the harmful effects from a discharge of a hazardous substance have been minimized. Approval of a partial cleanup exempts a voluntary party from ss. 291.37 (2) and 292.11 (3), (4) and (7) (b) and (c) with respect to the portion of the property or hazardous substances cleaned up under this paragraph. In addition to meeting the requirements of par. (a), a certificate for a partial cleanup under this paragraph may be issued only if:

1. Public health, safety or the environment will not be endangered by any hazardous substances remaining on or originating from the property after the partial cleanup, given the manner in which the property will be developed and used and any other factors that the department considers relevant to the endangerment of public health, safety or the environment.

2. The activities associated with any proposed use or development of the property will not aggravate or contribute to the discharge of a hazardous substance and will not unduly interfere with, or increase the costs of, restoring the property and minimizing the harmful effects of the discharge of a hazardous substance.

3. The owner of the property agrees to cooperate with the department to address problems caused by hazardous substances remaining on the property. Such cooperation shall include allowing access to the property or allowing the department or its authorized representatives to undertake activities on the property, including placement of borings, equipment and structures on the property.

27,3671 Section 3671 . 292.15 (2) (ar) of the statutes is created to read:

292.15 (2) (ar) The department may require the owner of the property to grant an easement or other interest in the property for any of the purposes specified in par. (am) as a condition of issuing a certificate under par. (am).

27,3672 Section 3672 . 292.15 (2) (b) (intro.) of the statutes is amended to read:

292.15 (2) (b) (intro.) The exemption exemptions provided in par. pars. (a) continues and (am) continue to apply after the date of certification by the department under par. (a) 3., or approval by the department under par. (am), notwithstanding the occurrence of any of the following:

27,3673 Section 3673 . 292.15 (2) (b) 1. to 3. of the statutes are amended to read:

292.15 (2) (b) 1. Statutes, rules or regulations are created or amended that would impose greater responsibilities on the purchaser voluntary party than those imposed under par. (a) 2.

2. The purchaser voluntary party fully complies with the rules promulgated by the department and any contract entered into under those rules under par. (a) 2. but it is discovered that the cleanup fails to fully restore the environment and minimize the effects from a release discharge of a hazardous substance.

3. The contamination from a hazardous substance that is the subject of the cleanup under par. (a) 2. is discovered to be more extensive than anticipated by the purchaser voluntary party and the department.

27,3674 Section 3674 . 292.15 (2) (c) of the statutes is amended to read:

292.15 (2) (c) The department of justice may not commence an action under 42 USC 9607 against any purchaser voluntary party meeting the criteria of this subsection to recover costs for which the purchaser voluntary party is exempt under pars. (a), (am) and (b).

27,3675 Section 3675 . 292.15 (2) (d) of the statutes is created to read:

292.15 (2) (d) This subsection does not apply to a municipal waste landfill, as defined in s. 289.01 (22), or to an approved facility.

27,3676 Section 3676 . 292.15 (3) of the statutes is amended to read:

292.15 (3) Successors and assigns. The exemption provided in sub. (2) applies to any successor or assignee of the purchaser voluntary party who qualifies as a voluntary party and who complies with the provisions of sub. (2) (a) 4. and 5. unless the successor or assignee knows that a certification certificate under sub. (2) (a) 3. or (am) was obtained by any of the means or under any of the circumstances specified in sub. (2) (a) 6.

27,3677 Section 3677 . 292.15 (4) of the statutes is amended to read:

292.15 (4) Limited responsibility. The responsibility of a purchaser voluntary party under sub. (2) (a) 2. may be monetarily limited by agreement between the purchaser voluntary party and the department if the purchaser voluntary party purchased the property from a municipality that acquired the property in a way described in s. 292.11 (9) (e) 1m. a. or b. The agreement shall stipulate all of the following:

(a) That the purchaser voluntary party may cease the cleanup when the cost of the cleanup equals 125% of the anticipated expense of the cleanup.

(b) That the purchaser voluntary party will continue to receive the benefit of the exemption under sub. (2) (a) after cessation of the cleanup if the purchaser voluntary party complies with sub. (2) (a) 4. and 5.

(c) That, if the purchaser voluntary party ceases the cleanup, the purchaser voluntary party shall use reasonable efforts to sell the property in accordance with rules of the department that define “reasonable efforts" in a manner substantively equivalent to 40 CFR 300.1100 (d) (2) (i).

27,3678 Section 3678 . 292.15 (5) of the statutes is amended to read:

292.15 (5) Fees. The department may, in accordance with rules that it promulgates, assess and collect fees from a purchaser voluntary party to offset the cost of the department's activities under subs. (2) and (4). The fees may include an advance deposit, from which the department shall return the amount in excess of the cost of the department's activities under subs. (2) and (4).

27,3678m Section 3678m. 292.15 (5m) of the statutes is created to read:

292.15 (5m) Prospective purchaser assurance letters. The department, in accordance with rules promulgated by the department, may issue to a prospective purchaser of property a letter certifying that the prospective purchaser is entitled to the exemptions described under sub. (2). The department may condition the entitlement to the exemptions upon the prospective purchaser's taking action as provided in this section and in a manner considered satisfactory to the department. Notwithstanding sub. (1) (f), a person to whom the department issues a letter under this subsection shall be considered to be a voluntary party under this section. Any letter issued under this subsection is void if the letter was obtained by fraud or misrepresentation.

27,3679 Section 3679 . 292.15 (6) of the statutes is created to read:

292.15 (6) Liens. This section does not exempt property from any lien filed under s. 292.81 (3) for costs incurred by the department prior to the date that certification is issued under sub. (2) (a) 3.

27,3679m Section 3679m. 292.15 (7) of the statutes is created to read:

292.15 (7) Applicability. This section does not apply to any of the following:

(a) A hazardous waste treatment, storage or disposal facility that first begins operation after the date on which the voluntary party acquired the property.

(b) A licensed hazardous waste treatment, storage or disposal facility operated on the property before the date on which the voluntary party acquired the property and that is operated after the date on which the voluntary party acquired the property.

(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 if the license was issued on or before the effective date of this paragraph .... [revisor inserts date].

27,3679p Section 3679p. 292.16 of the statutes is created to read:

292.16 Responsibility of certain municipalities acquiring closed landfills. (1) Definition. In this section:

(a) “Generator" has the meaning given in s. 292.35 (1) (b).

(b) “Transporter" has the meaning given in s. 292.35 (1) (g).

(2) Application. A municipality may apply to the department for an exemption from liability with respect to property that contains a closed landfill and that is acquired by the municipality before, on or after the effective date of this subsection.

(3) Conditions for approval. The department shall approve an application under sub. (2) if all of the following apply:

(a) The landfill is closed when the municipality acquires the property.

(b) The landfill closure complies with all rules of the department at the time of the application under sub. (2).

(d) The municipality enters into an agreement with the department that contains requirements for the municipality to maintain the property.

(e) The department determines that an exemption from liability under this section is in the public interest.