292.11(9) (9)Exemptions.
292.11(9)(a)(a) Any person holding a valid permit under ch. 283 is exempted from the reporting and penalty requirements of this section with respect to substances discharged within the limits authorized by the permit.
292.11(9)(b) (b) Law enforcement officers or members of a fire department using hazardous substances in carrying out their responsibility to protect public health, safety and welfare are exempted from the penalty requirements of this section, but shall report to the department any discharges of a hazardous substance occurring within the performance of their duties.
292.11(9)(c) (c) Any person discharging in conformity with a permit or program approved under chs. 281, 285 or 289 to 299 is exempted from the reporting and penalty requirements of this section.
292.11(9)(d)1.1. In this paragraph:
292.11(9)(d)1.a. a. "Fertilizer" has the meaning given in s. 94.64 (1) (e).
292.11(9)(d)1.b. b. "Label" has the meaning given in s. 94.67 (19).
292.11(9)(d)1.c. c. "Pesticide" has the meaning given in s. 94.67 (25).
292.11(9)(d)1.d. d. "Registered" means registered under the federal insecticide, fungicide, and rodenticide act, as amended (7 USC 136 et. seq.), and regulations issued under that act or registered under the rules of the department of agriculture, trade and consumer protection.
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)1.1. In this paragraph, "municipality" includes a redevelopment authority under s. 66.431 or a public body designated by a municipality under s. 66.435 (4).
292.11(9)(e)1m. 1m. A municipality is exempt from subs. (3), (4) and (7) (b) and (c) with respect to property acquired by the municipality before, on or after May 13, 1994, in any of the following ways:
292.11(9)(e)1m.a. a. Through tax delinquency proceedings or as the result of an order by a bankruptcy court.
292.11(9)(e)1m.b. b. From a municipality that acquired the property under a method described in subd. 1m. a.
292.11(9)(e)2. 2. Subdivision 1. does not apply to a discharge of a hazardous substance caused by any of the following:
292.11(9)(e)2.a. a. An action taken by the municipality.
292.11(9)(e)2.b. b. A failure of the municipality to take appropriate action to restrict access to the property in order to minimize costs or damages that may result from unauthorized persons entering the property.
292.11(9)(e)2.c. c. A failure of the municipality to sample and analyze unidentified substances in containers stored aboveground on the property.
292.11(9)(e)2.d. d. A failure of the municipality to remove and properly dispose of, or to place in a different container and properly store, any hazardous substance stored aboveground on the property in a container that is leaking or is likely to leak.
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(10) (10)Waiver. The department may waive compliance with any requirement of this section to the extent necessary to prevent an emergency condition threatening public health, safety or welfare.
292.11(11) (11)Enforcement exclusions.
292.11(11)(a)(a) Any person proceeded against for a violation of this section shall not be subject to penalties under s. 291.97 for the same act or omission.
292.11(11)(b) (b) Any person who discharges a hazardous substance, where the responsibilities for such a discharge are prescribed by statute other than ch. 291, shall be subject to the penalty under either this section or the other section but not both.
292.11(12) (12)Applicability.
292.11(12)(a)(a) Action by the department under this section is not subject to s. 292.31.
292.11(12)(b) (b) This section applies to all releases of hazardous substances for which a notification must be made under s. 166.20 (5) (a) 2.
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 History History: 1995 a. 227 ss. 700, 703 to 707, 710, 993.
292.11 Annotation Owner of property from which hazardous substance seeped into neighboring properties was required to take remedial action. Seepage was "discharge" even though not related to current human activity. State v. Mauthe, 123 W (2d) 288, 366 NW (2d) 871 (1985).
292.11 Annotation Section 144.76 (11) (b) allows the imposition of both a monetary penalty and an administrative clean-up order against a violator of this section. Where 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 W (2d) 357, 515 NW (2d) 332 (Ct. App. 1994).
292.15 292.15 Remediated property; purchaser liability.
292.15(1)(1)Definitions. In this section:
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)(c) (c) "Purchaser" means a person who acquires property in an arm's-length, good faith transaction and to whom all of the following apply:
292.15(1)(c)1. 1. The person did not participate in the management of, and was not the owner of, a business or entity that caused the release of a hazardous substance on the property.
292.15(1)(c)2. 2. The person did not own the property at the time a hazardous substance was released.
292.15(1)(c)3. 3. The person did not otherwise cause the release of a hazardous substance on the property.
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(2) (2)Exemption from liability.
292.15(2)(a)(a) A purchaser is exempt from the provisions of s. 292.11 (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:
292.15(2)(a)1. 1. The purchaser conducts a thorough environmental investigation of the property 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.
292.15(2)(a)2. 2. Except as provided in sub. (4), the purchaser cleans up the property by restoring the environment and minimizing the harmful effects from a release of a hazardous substance in accordance with rules promulgated by the department and any contract entered into under those rules.
292.15(2)(a)3. 3. The purchaser obtains a certification from the department that the property has been satisfactorily restored and that the harmful effects from a release of a hazardous substance have been minimized.
292.15(2)(a)4. 4. The purchaser 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 purchaser does not engage in activities that are inconsistent with the maintenance of the property.
292.15(2)(a)6. 6. The purchaser 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 knew or should have known about more environmental pollution than was revealed by the investigation conducted under subd. 1.
292.15(2)(b) (b) The exemption provided in par. (a) continues to apply after the date of certification by the department under par. (a) 3. 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 purchaser than those imposed under par. (a) 2.
292.15(2)(b)2. 2. The purchaser 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 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. is discovered to be more extensive than anticipated by the purchaser and the department.
292.15(2)(c) (c) The department of justice may not commence an action under 42 USC 9607 against any purchaser meeting the criteria of this subsection to recover costs for which the purchaser is exempt under pars. (a) and (b).
292.15(3) (3)Successors and assigns. The exemption provided in sub. (2) applies to any successor or assignee of the purchaser who complies with the provisions of sub. (2) (a) 4. and 5. unless the successor or assignee knows that a certification under sub. (2) (a) 3. was obtained by any of the means or under any of the circumstances specified in sub. (2) (a) 6.
292.15(4) (4)Limited responsibility. The responsibility of a purchaser under sub. (2) (a) 2. may be monetarily limited by agreement between the purchaser and the department if the purchaser 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:
292.15(4)(a) (a) That the purchaser may cease the cleanup when the cost of the cleanup equals 125% of the anticipated expense of the cleanup.
292.15(4)(b) (b) That the purchaser will continue to receive the benefit of the exemption under sub. (2) (a) after cessation of the cleanup if the purchaser complies with sub. (2) (a) 4. and 5.
292.15(4)(c) (c) That, if the purchaser ceases the cleanup, the purchaser 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).
292.15(5) (5)Fees. The department may, in accordance with rules that it promulgates, assess and collect fees from a purchaser 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).
292.15 History History: 1993 a. 453; 1995 a. 225; 1995 a. 227 s. 712, 714, 715.
292.15 Annotation The Land Recycling Act. Borchert & Burke. Wis. Law. Aug. 1994.
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.
292.21(1)(a)1.1. Subject to subd. 2. and par. (b), for purposes of this chapter, a lender does not possess or control a hazardous substance or cause the discharge of a hazardous substance as a result of engaging in lending activities.
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)2. 2. The lender notifies the department, in accordance with s. 292.11 (2), of any discharge of a hazardous substance identified as the result of activities described in this paragraph.
292.21(1)(b)3. 3. If the lender conducts an investigation or performs remedial action, the lender does so in accordance with department rules.
292.21(1)(b)4. 4. The lender does not physically cause a discharge.
292.21(1)(b)5. 5. The lender through tortious conduct with respect to the activities described in this paragraph does not cause a new discharge of a hazardous substance or exacerbate an existing discharge of a hazardous substance.
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.a. a. The lender, through action or inaction, does not intentionally or negligently cause a new discharge of a hazardous substance or exacerbate an existing discharge of a hazardous substance.
292.21(1)(c)1.b. b. Any discharge of a hazardous substance was not from an underground storage tank regulated under 42 USC 6991 to 6991i.
292.21(1)(c)1.c. c. The lender notifies the department, in accordance with s. 292.11 (2), of any known discharge of a hazardous substance.
292.21(1)(c)1.d. d. The lender conducts an environmental assessment of the real property in accordance with subd. 2. 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.
292.21(1)(c)1.e. e. For a hazardous substance released on or after the date on which the lender acquires title to, or possession or control of, the real property, the lender is not engaged in the operation of a business at the property, completion of work in progress or other actions associated with conducting the conclusion of the borrower's business.
292.21(1)(c)1.f. f. If the discharge of a hazardous substance occurs on or after the date on which the lender acquires title to, or possession or control of, the real property, the lender implements an emergency response action in response to the discharge of the hazardous substance.
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.a. a. A visual inspection of the real property.
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.
292.21(1)(c)2.c. c. A review of the ownership and use history of the real property, including a search of title records showing prior ownership of the real property for a period of 80 years previous to the date of the visual inspection under subd. 2. b.
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