Amendment ASA2-AB1089

AB1089-ASA2, s. 60 Section 60. 144.4422 (3) (a) (intro.) of the statutes is amended to read:

AB1089-ASA2,22,8 144.4422 (3) (a) (intro.) Upon receiving the department's approval of the preliminary remedial action plan, the political subdivision local governmental unit shall serve an offer to settle regarding the contribution of funds for investigation and remedial action at the site or facility on each of the responsible parties identified by the political subdivision local governmental unit, using the procedure for service of a summons under s. 801.11 and shall notify the department that the offer to settle has been served. The political subdivision local governmental unit shall include in the offer to settle all of the following information:

AB1089-ASA2, s. 61 Section 61. 144.4422 (3) (a) 2. of the statutes is amended to read:

AB1089-ASA2,22,12 144.4422 (3) (a) 2. The names, addresses and contact persons, to the extent known, for all of the responsible parties identified by the political subdivision local governmental unit.

AB1089-ASA2, s. 62 Section 62. 144.4422 (3) (a) 3. of the statutes is amended to read:

AB1089-ASA2,22,16 144.4422 (3) (a) 3. The location and availability of documents that support the claim of the political subdivision local governmental unit against the responsible party.

AB1089-ASA2, s. 63 Section 63. 144.4422 (3) (b) of the statutes is amended to read:

AB1089-ASA2,22,23 144.4422 (3) (b) The department shall maintain a list of competent and disinterested umpires qualified to perform the duties under subs. (4) to (6). None of the umpires may be employes of the department. Upon receiving notice from a political subdivision local governmental unit under par. (a), the secretary or his or her designee shall select an umpire from the list and inform the political subdivision local governmental unit and responsible parties of the person selected.

AB1089-ASA2, s. 64 Section 64. 144.4422 (3) (c) of the statutes is amended to read:

AB1089-ASA2,23,12 144.4422 (3) (c) Within 10 days after receiving notice of the umpire selected by the department under par. (b), the political subdivision local governmental unit may notify the department that the umpire selected is unacceptable. Within 10 days after receiving notice of the umpire selected by the department under par. (b), a responsible party may notify the department that the umpire selected is unacceptable or that the responsible party does not intend to participate in the negotiation. Failure to notify the department that the umpire is unacceptable shall be considered acceptance. If all responsible parties identified by the political subdivision local governmental unit indicate that they do not intend to participate in the negotiation, the department shall inform the political subdivision local governmental unit and the political subdivision local governmental unit shall cease further action under this section.

AB1089-ASA2, s. 65 Section 65. 144.4422 (3) (d) of the statutes is amended to read:

AB1089-ASA2,23,17 144.4422 (3) (d) Upon receiving notice under par. (c) that the selected umpire is unacceptable, the secretary or his or her designee shall select 5 additional umpires from the list and inform the political subdivision local governmental unit and responsible parties of the persons selected.

AB1089-ASA2, s. 66 Section 66. 144.4422 (3) (e) of the statutes is amended to read:

AB1089-ASA2,24,2 144.4422 (3) (e) Within 10 days after receiving notice of the umpires selected by the department under par. (d), the political subdivision local governmental unit or a responsible party may notify the department that one or more of the umpires selected are unacceptable. Failure to notify the department shall be considered acceptance. The secretary or his or her designee shall select an umpire from among those umpires not identified as unacceptable by the political subdivision local governmental unit or a responsible party or, if all umpires are identified as unacceptable, the secretary or his or her designee shall designate a person to be umpire for the negotiation.

AB1089-ASA2, s. 67 Section 67. 144.4422 (4) (a) of the statutes is amended to read:

AB1089-ASA2,24,13 144.4422 (4) (a) The umpire, immediately upon being appointed, shall contact the department, the political subdivision local governmental unit and the responsible parties that received the offer to settle and shall schedule the negotiating sessions. The umpire shall schedule the first negotiating session no later than 20 days after being appointed. The umpire may meet with all parties to the negotiation, individual parties or groups of parties. The umpire shall facilitate a discussion between the political subdivision local governmental unit and the responsible parties to attempt to reach an agreement on the design and implementation of the remedial action plan and the contribution of funds by the political subdivision local governmental unit and responsible parties.

AB1089-ASA2, s. 68 Section 68. 144.4422 (4) (d) of the statutes is amended to read:

AB1089-ASA2,24,20 144.4422 (4) (d) The political subdivision local governmental unit and the responsible parties that participate in negotiations shall pay for the costs of the umpire, whether or not an agreement among the parties is reached under sub. (5) or the parties accept the recommendation of the umpire under sub. (6). The umpire shall determine an equitable manner of paying for the costs of the umpire, which is binding.

AB1089-ASA2, s. 69 Section 69. 144.4422 (5) of the statutes is amended to read:

AB1089-ASA2,25,4 144.4422 (5) Agreement in negotiation. The political subdivision local governmental unit and any of the responsible parties may enter into any agreement in negotiation regarding the design and implementation of the remedial action plan and the contribution of funds by the political subdivision local governmental unit and responsible parties for the investigation and remedial action. The portion of the agreement containing the design and implementation of the remedial action plan shall be submitted to the department for approval. The department may approve that portion of the agreement as submitted or require modifications.

AB1089-ASA2, s. 70 Section 70. 144.4422 (6) (a) of the statutes is amended to read:

AB1089-ASA2,25,19 144.4422 (6) (a) If the political subdivision local governmental unit and any responsible parties are unable to reach an agreement under sub. (5) by the end of the period of negotiation, the umpire shall make a recommendation regarding the design and implementation of the remedial action plan and the contribution of funds for investigation and remedial action by the political subdivision local governmental unit and all responsible parties that were identified by the political subdivision local governmental unit and that did not reach an agreement under sub. (5), whether or not the responsible parties participated in negotiations under sub. (4). The umpire shall submit the recommendation to the department for its approval within 20 days after the end of the period of negotiation under sub. (4) (c). The department may approve the recommendation as submitted or require modifications. The umpire shall distribute a copy of the approved recommendation to the political subdivision local governmental unit and all responsible parties identified by the political subdivision local governmental unit.

AB1089-ASA2, s. 71 Section 71. 144.4422 (6) (b) of the statutes is amended to read:

AB1089-ASA2,26,3 144.4422 (6) (b) The political subdivision local governmental unit and the responsible parties that did not reach an agreement under sub. (5) shall accept or reject the umpire's recommendation within 60 days after receiving it. Failure to accept or reject the recommendation within 60 days shall be considered rejection of the recommendation. If the political subdivision local governmental unit rejects the recommendation with respect to any responsible party, the recommendation does not apply to that responsible party. If a responsible party rejects the recommendation, it does not apply to that responsible party.

AB1089-ASA2, s. 72 Section 72. 144.4422 (7) of the statutes is amended to read:

AB1089-ASA2,26,17 144.4422 (7) Responsible parties subject to an agreement or recommendation. A responsible party that enters into an agreement under sub. (5) with a political subdivision local governmental unit or that accepts the umpire's recommendation under sub. (6), if the political subdivision local governmental unit does not reject the recommendation, is required to comply with the agreement or recommendation. When the responsible party has complied with the agreement or recommendation, the responsible party is not liable to the state, including under s. 144.442 (9) or 144.76 (7) (b), or to the political subdivision local governmental unit for any additional costs of the investigation or remedial action; the responsible party is not liable to any other responsible party for contribution to costs incurred by any other responsible party for the investigation or remedial action; and the responsible party is not subject to an order under s. 144.76 (7) (c) for the discharge that is the subject of the agreement or recommendation.

AB1089-ASA2, s. 73 Section 73. 144.4422 (8) (b) (intro.) of the statutes is amended to read:

AB1089-ASA2,26,21 144.4422 (8) (b) (intro.) A political subdivision local governmental unit is entitled to recover litigation expenses and interest on the judgment against a responsible party if any of the following occurs:

AB1089-ASA2, s. 74 Section 74. 144.4422 (8) (b) 1. of the statutes is amended to read:

AB1089-ASA2,27,2 144.4422 (8) (b) 1. The political subdivision local governmental unit accepts the recommendation of an umpire under sub. (6), the responsible party rejects it and the political subdivision local governmental unit recovers a judgment under sub. (9) against that responsible party that equals or exceeds the amount of the umpire's recommendation.

AB1089-ASA2, s. 75 Section 75. 144.4422 (8) (b) 2. of the statutes is amended to read:

AB1089-ASA2,27,9 144.4422 (8) (b) 2. The political subdivision local governmental unit and the responsible party enter into an agreement under sub. (5) or accept the umpire's recommendation under sub. (6), the responsible party does not comply with the requirements of the agreement or recommendation and the political subdivision local governmental unit recovers a judgment against that responsible party based on the agreement or recommendation.

AB1089-ASA2, s. 76 Section 76. 144.4422 (8) (c) of the statutes is amended to read:

AB1089-ASA2,27,19 144.4422 (8) (c) A responsible party is entitled to recover litigation expenses from a political subdivision local governmental unit if the responsible party accepts the recommendation of an umpire under sub. (6), the political subdivision local governmental unit rejects the recommendation of the umpire under sub. (6) with respect to the responsible party, the political subdivision local governmental unit institutes an action under sub. (9) against the responsible party and the political subdivision local governmental unit recovers a judgment under sub. (9) against the responsible party that is equal to or less than the amount of the umpire's recommendation.

AB1089-ASA2, s. 77 Section 77. 144.4422 (9) (b) 1. of the statutes is amended to read:

AB1089-ASA2,28,2 144.4422 (9) (b) 1. Except as provided in pars. (bm), (br) and (e), sub. (7) and s. 144.76 (9m) and (9s), a responsible party is liable for a portion of the costs, as determined under pars. (c) to (e), incurred by a political subdivision local governmental unit for remedial action in an agreement under sub. (5) or a recommendation under sub. (6) and for any related investigation. A right of action shall accrue to a political subdivision local governmental unit against the responsible party for costs listed in this subdivision.

AB1089-ASA2, s. 78 Section 78. 144.76 (9) (e) 2. e. of the statutes is created to read:

AB1089-ASA2,28,7 144.76 (9) (e) 2. e. A failure of the municipality to take action, as directed by the department, with respect to public health, safety or welfare concerns associated with the property, if the municipality proposes to use or develop the property without taking the actions required under sub. (3).

AB1089-ASA2, s. 79 Section 79. 144.76 (9m) (c) 1. d. of the statutes is amended to read:

AB1089-ASA2,29,2 144.76 (9m) (c) 1. 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, and files 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 the environmental assessment is conducted before the date that the lender acquires title to, or possession or control of, the real property, the lender shall have a visual inspection of the property performed as provided in subd. 2. a. and b. after that date to verify the environmental assessment, and shall submit the results of both the visual inspection and the environmental assessment to the department. If the environmental assessment is conducted more than one year before the date that the lender acquires title to, or possession or control of, the real property, the department shall review the environmental assessment and shall either determine that the environmental assessment is adequate or direct the lender to address any inadequacies in the environmental assessment. The exemption under this subdivision does not apply unless the department determines that the lender has satisfactorily corrected the inadequacies, if any, of an environmental assessment reviewed under this subd. l. d.

AB1089-ASA2, s. 80 Section 80. 144.76 (13) (b) 1. (intro.), a. and b. and 4. and (c) of the statutes are amended to read:

AB1089-ASA2,29,8 144.76 (13) (b) 1. (intro.) Before incurring expenses under this section or s. 144.442 (4), (6) or (8) or 144.77 (4) 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:

AB1089-ASA2,29,10 a. A brief description of the property for which the department expects to incur expenses under this section or s. 144.442 (4), (6) or (8) or 144.77 (4).

AB1089-ASA2,29,13 b. A brief description of the types of activities that the department expects may be conducted at the property under this section or s. 144.442 (4), (6) or (8) or 144.77 (4).

AB1089-ASA2,29,16 4. No notice under this paragraph is necessary in circumstances in which entry onto the property without prior notice is authorized under sub. (8) or under s. 144.77 (5).

AB1089-ASA2,29,24 (c) Any expenditures made by the department under this section, under or s. 144.442 (4), (6) or (8) or, subject to s. 144.77 (6) (d), under s. 144.77 (4) 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 subsection 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.

AB1089-ASA2, s. 81 Section 81. 144.765 (title) of the statutes is amended to read:

AB1089-ASA2,30,2 144.765 (title) Remediated property; purchaser Voluntary party remediation and exemption from liability.

AB1089-ASA2, s. 82 Section 82. 144.765 (1) (c) (intro.) and 2. of the statutes are repealed.

AB1089-ASA2, s. 83 Section 83. 144.765 (1) (c) 1. of the statutes is renumbered 144.765 (1) (f) 3.

AB1089-ASA2, s. 84 Section 84. 144.765 (1) (c) 3. of the statutes is renumbered 144.765 (1) (f) 1. and amended to read:

AB1089-ASA2,30,8 144.765 (1) (f) 1. The person did not otherwise cause the release of a hazardous substance on the property.

AB1089-ASA2, s. 85 Section 85. 144.765 (1) (f) (intro.) of the statutes is created to read:

AB1089-ASA2,30,12 144.765 (1) (f) (intro.) "Voluntary party" means a person who owns property on which a hazardous substance has been discharged and to whom all of the following apply:

AB1089-ASA2, s. 86 Section 86. 144.765 (1) (f) (intro.) of the statutes, as created by 1995 Wisconsin Act .... (this act), is renumbered 292.15 (1) (f) (intro.).

AB1089-ASA2, s. 87 Section 87. 144.765 (1) (f) 1. of the statutes, as affected by 1995 Wisconsin Act .... (this act), is renumbered 292.15 (1) (f) 1.

AB1089-ASA2, s. 88 Section 88. 144.765 (1) (f) 2. of the statutes is created to read:

AB1089-ASA2,30,20 144.765 (1) (f) 2. The person is not required to possess a license issued under s. 144.64 (2) for any activity at the property, other than environmental response work.

AB1089-ASA2, s. 89 Section 89. 144.765 (1) (f) 2. of the statutes, as created by 1995 Wisconsin Act .... (this act), is renumbered 292.15 (1) (f) 2. and amended to read:

AB1089-ASA2,30,25 292.15 (1) (f) 2. The person is not required to possess a license issued under s. 144.64 (2) 291.25 for any activity at the property, other than environmental response work.

AB1089-ASA2, s. 90 Section 90. 144.765 (1) (f) 3. of the statutes, as affected by 1995 Wisconsin Act .... (this act), is renumbered 292.15 (1) (f) 3.

AB1089-ASA2, s. 91 Section 91. 144.765 (2) (a) of the statutes is amended to read:

AB1089-ASA2,31,8 144.765 (2) (a) A purchaser Except as provided in sub. (6), a voluntary party is exempt from the provisions of s. ss. 144.64 (2m), 144.735 (2) and 144.76 (3), (4) and (7) (b) and (c) 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:

AB1089-ASA2,31,13 1. The purchaser conducts a A thorough 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.

AB1089-ASA2,31,18 2. Except as provided in sub. (4), the purchaser cleans up the 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 identified, by rule, by the department and any contract entered into under those rules.

AB1089-ASA2,31,22 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.

AB1089-ASA2,31,25 4. The purchaser voluntary party maintains and monitors the property as required under rules promulgated identified, by rule, by the department and any contract entered into under those rules.

AB1089-ASA2,32,2 5. The purchaser voluntary party does not engage in activities that are inconsistent with the maintenance of the property.

AB1089-ASA2,32,7 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.

AB1089-ASA2, s. 92 Section 92. 144.765 (2) (am) of the statutes is created to read:

AB1089-ASA2,32,18 144.765 (2) (am) The department may approve a partial cleanup and issue a certificate of partial completion in the manner provided in par. (a). A certificate of partial completion shall state 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 at the time the certificate is issued. Approval of a partial cleanup exempts a voluntary party from the provisions of ss. 144.64 (2m), 144.735 (2) and 144.76 (3), (4) and (7) (b) and (c) only 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:

AB1089-ASA2,32,23 1. Public health, safety, welfare or the environment, on or off the property, will not be endangered by any hazardous substances remaining on 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, welfare or the environment.

AB1089-ASA2,32,25 1m. A thorough environmental investigation of the property is conducted that is approved by the department.

AB1089-ASA2,33,4 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.

AB1089-ASA2, s. 93 Section 93 . 144.765 (2) (am) of the statutes, as created by 1995 Wisconsin Act .... (this act), is renumbered 292.15 (2) (am), and 292.15 (2) (am) (intro.), as renumbered, is amended to read:

AB1089-ASA2,33,16 292.15 (2) (am) (intro.) 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 the provisions of ss. 144.64 (2m), 144.735 291.29, 291.37 (2) and 144.76 292.11 (3), (4) and (7) (b) and (c) only 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:

AB1089-ASA2, s. 94 Section 94. 144.765 (2) (ar) of the statutes is created to read:

AB1089-ASA2,33,21 144.765 (2) (ar) As determined necessary by the department, the department may require the owner of the property to grant access, 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).

AB1089-ASA2, s. 95 Section 95. 144.765 (2) (b) (intro.) of the statutes is amended to read:

AB1089-ASA2,34,2 144.765 (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:

AB1089-ASA2, s. 96 Section 96. 144.765 (2) (b) 1. to 3. and (c) and (3) of the statutes are amended to read:

AB1089-ASA2,34,7 144.765 (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.

AB1089-ASA2,34,12 2. The purchaser voluntary party fully complies with the rules promulgated identified, by rule, 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.

AB1089-ASA2,34,15 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.

AB1089-ASA2,34,19 (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).

AB1089-ASA2,34,25 (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.

AB1089-ASA2, s. 97 Section 97. 144.765 (4) of the statutes, as affected by 1995 Wisconsin Act 225, is amended to read:

AB1089-ASA2,35,8 144.765 (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 purchased voluntary party acquired the property from a municipality that acquired the property in a way described in s. 144.76 (9) (e) 1m. a. or b. The agreement shall stipulate all of the following:

AB1089-ASA2,35,10 (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.