292.11(9)(d)1.a. a. "Fertilizer" has the meaning given in s. 94.64 (1) (e).
292.11(9)(d)2. 2. Any person applying a registered pesticide according to the label instructions, or applying a fertilizer at or below normal and beneficial agronomic rates, is exempted with respect to the application from the reporting and penalty requirements of this section.
292.11(9)(e)1m. 1m. Except as provided in subds. 2., 4., 6. and 7., a local governmental unit is exempt from subs. (3), (4) and (7) (b) and (c) with respect to discharges of hazardous substances on or originating from property acquired by the local government unit before, on or after October 29, 1999, if any of the following applies:
292.11(9)(e)1m.a. a. The local governmental unit acquired the property through tax delinquency proceedings or as the result of an order by a bankruptcy court.
292.11(9)(e)1m.e. e. The local governmental unit acquired the property through escheat.
292.11(9)(e)1m.f. f. The local governmental unit acquired the property using funds appropriated under s. 20.866 (2) (ta) or (tz).
292.11(9)(e)2.c. c. A failure of the local governmental unit or corporation to sample and analyze unidentified substances in containers stored aboveground on the property.
292.11(9)(e)5. 5. Subdivision 1s. does not apply if the corporation fails to do any of the following:
292.11(9)(e)5.a. a. Respond to a discharge of a hazardous substance that poses an imminent threat to public health, safety or welfare or to the environment, on or off of the property.
292.11(9)(e)7. 7. Subdivision 1m. does not apply to property described in subd. 1m. f. unless the local governmental unit enters into an agreement with the department to ensure that the conditions in subds. 2. and 4. are satisfied.
292.11(9)(f) (f) Any person discharging high-volume industrial waste used in a highway improvement project under s. 84.078 is exempted from the penalty requirements of this section.
292.11(11) (11)Enforcement exclusions.
292.11(12)(a)(a) Action by the department under this section is not subject to s. 292.31.
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 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 Sub. (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 This section 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 s. 292.11 (7).
292.12(2) (2)Agency authority. The agency with administrative authority may do any of the following as a condition of approving remedial action or of issuing a case closure letter if residual contamination remains on a site after the conclusion of remedial action at the site:
292.12(2)(a) (a) Require maintenance of an engineering control on 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(3) (3)Database.
292.12(3)(b)1.1. If residual contamination remains on a site after the conclusion of remedial action at the site, the agency with administrative authority shall request the department to list the site, and any requirements, limitations, or conditions imposed under sub. (2) (a) to (c), in the database maintained by the department under par. (a) and, as a condition of approving remedial action or of issuing a case closure letter, shall require the person requesting approval of remedial action or case closure to provide the information necessary for the listing and to pay a fee established by the department for the listing.
292.12(3)(b)2. 2. If the department has directed that a local governmental unit or economic development corporation take action under s. 292.11 (9) (e) 4. for a site, the department shall list the site, and the action that the department has directed, in the database maintained by the department under par. (a) and require the local governmental unit or the corporation to pay a fee established by the department for the listing.
292.12(4) (4)Notification of residual contamination. Before a person applies for case closure for a site that includes any property that has residual contamination and is not owned by the person, the person shall provide written notification of the residual contamination to the owner of that property. The person shall include in the notice, at a minimum, a description of the type of residual contamination and the location and description of any engineering control on the site.
292.13 292.13 Property affected by off-site discharge.
292.13(1)(1) Exemption from liability for groundwater contamination. A person 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:
292.13(1)(d) (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.
292.13(1)(f) (f) The person agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge.
292.13(1m) (1m)Exemption from liability for soil contamination. A person 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, including sediments, on property possessed or controlled by the person if all of the following apply:
292.13(1m)(a) (a) The discharge of the hazardous substance originated from a source on property that is not possessed or controlled by the person.
292.13(1m)(d) (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.
292.13(1m)(e) (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:
292.13(1m)(e)1. 1. Limit public access to the property.
292.13(1m)(f) (f) The person agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge.
292.15 292.15 Voluntary party remediation and exemption from liability.
292.15(1)(a) (a) "Enforcement standard" has the meaning given in s. 160.01 (2).
292.15(1)(d) (d) "Release" means the original discharge.
292.15(2) (2)Exemption from liability.
292.15(2)(a)2. 2. The environment is restored to the extent practicable with respect to the discharges and the harmful effects from the discharges are minimized in accordance with rules promulgated by the department and any contract entered into under those rules.
292.15(2)(a)4. 4. If the voluntary party owns or controls the property, the voluntary party maintains and monitors the property as required under rules promulgated by the department and any contract entered into under those rules.
292.15(2)(a)6. 6. The voluntary party has not obtained the certificate of completion by fraud or misrepresentation, by the knowing failure to disclose material information or under circumstances in which the voluntary party knew or should have known about more discharges of hazardous substances than were revealed by the investigation conducted under subd. 1.
292.15(2)(ae) (ae) Natural attenuation. Except as provided in sub. (6) or (7), if there exists a hazardous substance in groundwater on or originating from a property in a concentration that exceeds an enforcement standard and the department determines that natural attenuation will restore groundwater quality in accordance with rules promulgated by the department, a voluntary party is exempt from 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 discharges of hazardous substances on or originating from the property, if the release of those hazardous substances occurred prior to the date on which the department approves the environmental investigation of the property under subd. 1. and if all of the following occur at any time before or after the date of acquisition:
292.15(2)(ae)1. 1. An environmental investigation of the property is conducted that is approved by the department.
292.15(2)(ae)4. 4. If the voluntary party owns or controls the property, the voluntary party maintains and monitors the property as required under rules promulgated by the department and any contract entered into under those rules.
292.15(2)(ae)6. 6. The 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 voluntary party knew or should have known about more discharges of hazardous substances than were revealed by the investigation conducted under subd. 1.
292.15(2)(ae)7. 7. If the voluntary party owns or controls the property, the voluntary party allows the department, any authorized representative of the department, a representative of a company that has issued insurance required under subd. 3m., any party that possessed or controlled the hazardous substance or caused the discharge of the hazardous substance, and any consultant or contractor of any of those persons to enter the property to determine whether natural attenuation has failed and to take action to respond to the discharge if natural attenuation has failed.
292.15(2)(ag) (ag) Property affected by off-site discharge. Except as provided in sub. (6) or (7), for a property on which there exists a hazardous substance for which a voluntary party is exempt from liability under s. 292.13 (1) or (1m), a voluntary party is exempt from the provisions of 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 discharges of hazardous substances on or originating from the property, if the release of those hazardous substances occurred prior to the date on which the department approves the environmental investigation of the property under par. (a) 1., if par. (a) 1. and 4. to 6. apply and all of the following occur at any time before or after the date of acquisition:
292.15(2)(ag)1. 1. The environment is restored to the extent practicable with respect to the discharges and the harmful effects from the discharges are minimized in accordance with rules promulgated by the department and any contract entered into under those rules, except that this requirement does not apply with respect to the hazardous substance for which the voluntary party is exempt from liability under s. 292.13 (1) or (1m).
292.15(2)(ar) (ar) Condition. 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).
292.15(2)(av) (av) Withdrawal by department.
292.15(2)(av)3. 3. If the department decides to withdraw a voluntary party under this paragraph, the department shall provide a written notice of its decision to the voluntary party and shall return any unused portion of any advance deposit made by the voluntary party, unless otherwise directed by the voluntary party.
292.15(2)(av)4. 4. A voluntary party may not reenter the process of obtaining an exemption under this section after being withdrawn under this paragraph unless the voluntary party pays the fees under sub. (5) and enters into an agreement with the department containing a schedule for conducting the environmental investigation and environmental restoration of the property identified in the voluntary party's application.
292.15(2)(b) (b) Extent of exemptions. The exemptions provided in pars. (a), (ae), (ag) and (am) continue to apply after the date of certification by the department under par. (a) 3., (ae) 3. or (ag) 2., or approval by the department under par. (am), notwithstanding the occurrence of any of the following:
292.15(2)(b)1. 1. Statutes, rules or regulations are created or amended that would impose greater responsibilities on the voluntary party than those imposed under par. (a) 2., (ae) 2. or (ag) 1.
292.15(2)(e) (e) Contract with insurer. If the department requires insurance under par. (ae) 3m., the department may contract with an insurer to provide insurance required under par. (ae) 3m. and may require voluntary parties to obtain coverage under the contract.
292.15(7)(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.
292.15(7)(e) (e) A solid waste facility or waste site at which active remedial operation or treatment is required, including a site or facility where groundwater monitoring; leachate or groundwater collection or treatment; or active gas extraction is required as all or part of the remedial action.
292.16(1)(a) (a) "Generator" has the meaning given in s. 292.35 (1) (b).
292.16(3) (3)Conditions for approval. The department shall approve an application under sub. (2) if all of the following apply:
292.16(3)(b) (b) The landfill closure complies with all rules of the department at the time of the application under sub. (2).
292.16(3)(c) (c) The municipality did not have an ownership interest in the landfill while the landfill was in operation.
292.16(3)(d) (d) The municipality enters into an agreement with the department that contains requirements for the municipality to maintain the property.
292.16(3)(e) (e) The department determines that an exemption from liability under this section is in the public interest.
292.16(3)(g) (g) The landfill has caused groundwater contamination.
292.16(3)(h) (h) A steering committee of local public and private representatives was formed to address the contamination caused by the landfill in a cooperative effort with the department that prevented the landfill from being listed on the national priority list under 42 USC 9605 (a) (8) (B).
292.16(4) (4)Scope of exemption. An approval by the department under sub. (3) exempts the municipality from liability imposed under ss. 289.05, 289.41, 289.46, 289.95, 291.37, 291.85 (2), 292.11 (3), (4) and (7) (b) and (c) and 292.31 (8), and rules promulgated under those provisions, based on the municipality's ownership of the property. The exemption does not apply to any liability based on hazardous substances for which the municipality is responsible as a generator or transporter.
292.16(5)(a) (a) Obtain the prior approval of the department for any proposed uses of the property, for any physical disturbance of the soil and for any construction on the property.
292.16 History History: 1997 a. 27; 2013 a. 173 s. 33.
292.16 Cross-reference Cross-reference: See also ch. NR 708, Wis. adm. code.
292.19 292.19 Responsibility of persons conducting investigations.
292.21(1)(a)2. 2. Subdivision 1. does not apply in any of the following situations:
292.21(1)(a)2.a. a. A lender physically causes a discharge.
292.21(1)(a)2.b. b. The lender through tortious conduct with respect to lending activities causes a discharge of a hazardous substance or exacerbates an existing discharge of a hazardous substance.
292.21(1)(a)3. 3. The department may, by rule, designate as lending activities other activities, in addition to those listed in s. 292.01 (9), that are related to undertaking appropriate actions to preserve and protect property or are related to the advancing of funds or credit or the collecting of funds.
292.21(1)(b) (b) Preacquisition inspections of real property. For purposes of this chapter, a lender does not possess or control a hazardous substance or cause the discharge of a hazardous substance as the result of inspecting real property for compliance with environmental laws, conducting any portion of an environmental assessment of the property in the manner specified in par. (c) 2., conducting an investigation to determine the degree and extent of contamination or performing remedial action to clean the discharge of a hazardous substance. This paragraph applies to a lender only if all of the following conditions are satisfied:
292.21(1)(b)1. 1. The activities described in this paragraph occur before the date on which the lender acquires title to, or possession or control of, real property through enforcement of a security interest.
292.21(1)(b)4. 4. The lender does not physically cause a discharge.
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.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.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.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.
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2011-12 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before Dec. 13, 2014. Published and certified under s. 35.18. Changes effective after Dec. 13, 2014 are designated by NOTES. (Published 12-13-14)