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292.13 Cross-reference Cross-reference: See also ch. NR 749, Wis. adm. code.
292.15 292.15 Voluntary party remediation and exemption from liability.
292.15(1)(1) Definitions. In this section:
292.15(1)(a) (a) "Enforcement standard" has the meaning given in s. 160.01 (2).
292.15(1)(am) (am) "Natural attenuation" means the reduction in the mass and concentration in groundwater of a substance, and the products into which the substance breaks down, due to naturally occurring physical, chemical and biological processes, without human intervention.
292.15(1)(b) (b) "Owner of a business or entity" means any person who owns or who receives direct or indirect consideration from the operation of a business or entity regardless of whether the business or entity remains in operation and regardless of whether the person owns or receives consideration at the time any discharge of a hazardous substance occurs. "Owner of a business or entity" includes a subsidiary or parent corporation.
292.15(1)(d) (d) "Release" means the original discharge.
292.15(1)(e) (e) "Subsidiary or parent corporation" means any business entity, including a subsidiary, parent corporation or other business arrangement that has elements of common ownership or control or uses a long-term contractual arrangement with any person that has the effect of avoiding direct responsibility for conditions on a parcel of property.
292.15(1)(f) (f) "Voluntary party" means a person who submits an application to obtain an exemption under this section and pays any fees required under sub. (5).
292.15(2) (2)Exemption from liability.
292.15(2)(a)(a) General. Except as provided in sub. (6) or (7), 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 a 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)(a)1. 1. An environmental investigation of the property is conducted that is approved by the department.
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)3. 3. The voluntary party obtains a certificate of completion from the department that the environment has been satisfactorily restored to the extent practicable with respect to the discharges and that the harmful effects from the discharges have been minimized.
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)5. 5. The voluntary party does not engage in activities that are inconsistent with the maintenance of the property.
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)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, except that this requirement does not apply with respect to the hazardous substance in groundwater that the department has determined will be brought into compliance with rules promulgated by the department through natural attenuation.
292.15(2)(ae)3. 3. The voluntary party obtains a certificate of completion from the department stating that the environment has been satisfactorily restored to the extent practicable with respect to the discharges and that the harmful effects from the discharges have been minimized, except with respect to the hazardous substance in groundwater that the department has determined will be brought into compliance with rules promulgated by the department through natural attenuation.
292.15(2)(ae)3m. 3m. If required by the department, the voluntary party obtains and maintains insurance to cover the costs of complying with s. 292.11 (3) with respect to the hazardous substance that the department has determined will be brought into compliance with rules promulgated by the department through natural attenuation, in case natural attenuation fails, and the insurance complies with rules promulgated by the department and names this state as the insured.
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)5. 5. The voluntary party does not engage in activities that are inconsistent with the maintenance of the property.
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)(ag)2. 2. The voluntary party obtains a certificate of completion from the department stating that the environment has been satisfactorily restored to the extent practicable with respect to the discharges and that the harmful effects from the discharges have been minimized, except 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)(ag)3. 3. The voluntary party obtains a written determination from the department under s. 292.13 (2) 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)(ag)4. 4. The voluntary party continues to satisfy the conditions under s. 292.13 (1) (d) to (g) or (1m) (d) to (g).
292.15(2)(am) (am) Partial cleanup. The department may approve a partial cleanup and issue a certificate of completion as provided in par. (a), (ae) or (ag) 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), (ae) or (ag), a certificate for a partial cleanup under this paragraph may be issued only if:
292.15(2)(am)1. 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.
292.15(2)(am)2. 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.
292.15(2)(am)3. 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.
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)1.1. If at any time after a voluntary party submits an application to obtain an exemption under this section the voluntary party fails to make reasonable progress toward completion of an environmental investigation and environmental restoration of the property identified in the application, the department may withdraw the voluntary party from the process of obtaining an exemption under this section.
292.15(2)(av)2. 2. If a voluntary party fails to provide to the department requested reports or updates on the status of an environmental investigation and environmental restoration of the property identified in the voluntary party's application for one year or longer, the department may request a written status update from the applicant. If the voluntary party does not submit the status update within 60 days or submits a status update that does not show that reasonable progress is being made, the department may withdraw the voluntary party from the process of obtaining an exemption under this section.
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)(b)2. 2. The voluntary party fully complies with the rules promulgated by the department and any contract entered into under those rules under par. (a) 2., (ae) 2. or (ag) 1. but it is discovered that the cleanup fails to fully restore the environment and minimize the effects from a discharge of a hazardous substance.
292.15(2)(b)3. 3. The contamination from a hazardous substance that is the subject of the cleanup under par. (a) 2., (ae) 2. or (ag) 1. is discovered to be more extensive than anticipated by the voluntary party and the department.
292.15(2)(b)4. 4. If the voluntary party does not own or control the property, the person who owns or controls the property fails to maintain and monitor the property as required under rules promulgated by the department or any contract entered into under those rules.
292.15(2)(b)5. 5. If the voluntary party does not own or control the property, the person who owns or controls the property fails to allow the department, any authorized representative of the department, any representative of a company that has issued insurance required under par. (ae) 3m., any party that possessed or controlled the hazardous substance or caused the discharge of the hazardous substance, or 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)(c) (c) Prohibition on action. The department of justice may not commence an action under 42 USC 9607 against any voluntary party meeting the criteria of this subsection to recover costs for which the voluntary party is exempt under pars. (a), (ae), (ag), (am), and (b).
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(3) (3)Successors and assigns. An exemption provided in sub. (2) applies to any successor or assignee of the voluntary party if the successor or assignee complies with the provisions of sub. (2) (a) 4. and 5. or (ae) 3m., 4., 5., and 7. and, if applicable, sub. (2) (ag) 4. or (am) as though the successor or assignee were the voluntary party except that the exemption in sub. (2) does not apply if the successor or assignee knows that a certificate under sub. (2) (a) 3., (ae) 3., (ag) 2. or (am) was obtained by any of the means or under any of the circumstances specified in sub. (2) (a) 6.
292.15(5) (5)Fees. The department may, in accordance with rules that it promulgates, assess and collect fees from a voluntary party to offset the cost of the department's activities under sub. (2). 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 sub. (2).
292.15(6) (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., (ae) 3. or (ag) 2.
292.15(7) (7)Applicability. This section does not apply to any of the following:
292.15(7)(a) (a) A hazardous waste treatment, storage or disposal facility that first begins operation after the date on which the voluntary party acquired the property.
292.15(7)(b) (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.
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)(d) (d) A solid waste facility that is an approved 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.
292.15 Annotation The Land Recycling Act. Borchert & Burke. Wis. Law. Aug. 1994.
292.15 Cross-reference Cross-reference: See also chs. NR 714, 716, 718, 720, 722, 724, 726, 750, and 754, Wis. adm. code.
292.16 292.16 Responsibility of certain municipalities acquiring closed landfills.
292.16(1) (1) Definition. In this section:
292.16(1)(a) (a) "Generator" has the meaning given in s. 292.35 (1) (b).
292.16(1)(b) (b) "Transporter" has the meaning given in s. 292.35 (1) (g).
292.16(2) (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 October 14, 1997.
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)(a) (a) The landfill is closed when the municipality acquires the property.
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)(f) (f) The landfill was privately owned while it was in operation.
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(3)(i) (i) The remedial action approved by the department authorized a recreational use for the property and was completed by December 31, 1995.
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) (5)Requirements. If the department approves a municipality's application under sub. (3), the municipality shall do all of the following:
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(5)(b) (b) Allow access to the property by any person who is required to conduct monitoring, to operate and maintain equipment or to undertake remedial action in connection with the closed landfill.
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.
292.19(1)(1) For purposes of this chapter, a person who conducts an investigation of property to determine the existence of, or to obtain information about, a discharge of a hazardous substance does not possess or control the hazardous substance or cause the discharge of the hazardous substance as the result of conducting the investigation.
292.19(2) (2) If the person who conducts the investigation physically causes a discharge, sub. (1) does not apply with respect to the portion of the property on which the person causes the discharge.
292.19 History History: 1997 a. 27.
292.21 292.21 Responsibility of lenders and representatives.
292.21(1)(1) Responsibility of lenders; lending activities; acquisition of property.
292.21(1)(a)(a) Lending.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 18, 2014. Published and certified under s. 35.18. Changes effective after April 18, 2014 are designated by NOTES. (Published 4-18-14)