292.11(3) (3)Responsibility. A person who possesses or controls a hazardous substance which is discharged or who causes the discharge of a hazardous substance shall take the actions necessary to restore the environment to the extent practicable and minimize the harmful effects from the discharge to the air, lands or waters of this state.
292.11(4) (4)Prevention of discharge.
292.11(4)(a)(a) The department may require that preventive measures be taken by any person possessing or having control over a hazardous substance if the department finds that existing control measures are inadequate to prevent discharges.
292.11(4)(b) (b) The department shall specify necessary preventive measures by order. The order shall be effective 10 days after issuance, unless the person named requests a hearing, in which case no order may become effective until the conclusion of the hearing.
292.11(5) (5)Contingency plan.
292.11(5)(a)(a) After consultation with other affected federal, state and local agencies and private organizations, the department shall establish by rule criteria and procedures for the development, establishment and amendment of a contingency plan for the undertaking of emergency actions in response to the discharge of hazardous substances.
292.11(5)(b) (b) The contingency plan shall:
292.11(5)(b)1. 1. Provide for efficient, coordinated and effective action to minimize damage to the air, land and waters of the state caused by the discharge of hazardous substances;
292.11(5)(b)2. 2. Include containment, clean-up and disposal procedures;
292.11(5)(b)3. 3. Provide for restoration of the lands or waters affected to the satisfaction of the department;
292.11(5)(b)4. 4. Assign duties and responsibilities among state departments and agencies, in coordination with federal and local agencies;
292.11(5)(b)5. 5. Provide for the identification, procurement, maintenance and storage of necessary equipment and supplies;
292.11(5)(b)6. 6. Provide for designation of persons trained, prepared and available to provide the necessary services to carry out the plan; and
292.11(5)(b)7. 7. Establish procedures and techniques for identifying, locating, monitoring, containing, removing and disposing of discharged hazardous substances.
292.11(6) (6)Hazardous substances spills; appropriations and related provisions.
292.11(6)(a)(a) Contingency plan; activities resulting from discharges. The department may utilize moneys appropriated under s. 20.370 (2) (dv) and (my) in implementing and carrying out the contingency plan developed under sub. (5) and to provide for the procurement, maintenance and storage of necessary equipment and supplies, personnel training and expenses incurred in identifying, locating, monitoring, containing, removing and disposing of discharged substances.
292.11(6)(b) (b) Limitation on equipment expenses. No more than 25% of the moneys available under the appropriation under s. 20.370 (2) (dv) or (my) during any fiscal year may be used for the procurement and maintenance of necessary equipment during that fiscal year.
292.11(6)(c) (c) Reimbursements.
292.11(6)(c)1.1. Reimbursements to the department under sub. (7) (b) shall be credited to the environmental fund for environmental repair.
292.11(6)(c)2. 2. Reimbursements to the department under section 311, federal water pollution control act amendments of 1972, P.L. 92-500, shall be credited to the appropriation under s. 20.370 (2) (my).
292.11(7) (7)Removal or other emergency action.
292.11(7)(a)(a) Subject to ss. 94.73 (2m) and 101.144 (3), in any case where action required under sub. (3) is not being adequately taken or the identity of the person responsible for the discharge is unknown, the department or its authorized representative may identify, locate, monitor, contain, remove or dispose of the hazardous substance or take any other emergency action which it deems appropriate under the circumstances.
292.11(7)(b) (b) The person who possessed or controlled a hazardous substance which was discharged or who caused the discharge of a hazardous substance shall reimburse the department for actual and necessary expenses incurred in carrying out its duties under this subsection.
292.11(7)(c) (c) Subject to ss. 94.73 (2m) and 101.144 (3), the department, for the protection of public health, safety or welfare, may issue an emergency order or a special order to the person possessing, controlling or responsible for the discharge of hazardous substances to fulfill the duty imposed by sub. (3).
292.11(8) (8)Access to property and records. Any officer, employe or authorized representative of the department, upon notice to the owner or occupant, may enter any property, premises or place at any time for the purposes of sub. (7) if the entry is necessary to prevent increased damage to the air, land or waters of the state, or may inspect any record relating to a hazardous substance for the purpose of ascertaining the state of compliance with this section and the management rules promulgated under this section. Notice to the owner or occupant is not required if the delay attendant upon providing it will result in imminent risk to public health or safety or the environment.
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.
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