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)(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(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)(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)(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)(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 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)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.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)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)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.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.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.
292.21(1)(c)2.d.
d. A review of historic and recent aerial photographs of the real property, if available.
292.21(1)(c)2.e.
e. A review of the environmental licenses, permits or orders issued with respect to the real property.
292.21(1)(c)2.f.
f. An evaluation of the results of any environmental sampling and analysis that has been conducted.
292.21(1)(c)2.g.
g. A review to determine if the real property is listed in any of the written compilations of sites or facilities considered to pose a threat to human health or the environment, including the national priorities list under
42 USC 9605 (a) (8) (B); the federal environmental protection agency's information system for the comprehensive environmental response, compensation and liability act,
42 USC 9601 to
9675, (CERCLIS); the department's most recent Wisconsin remedial response site evaluation report, including the inventory of sites or facilities which may cause or threaten to cause environmental pollution required by
s. 292.31 (1) (a); and the department's registry of abandoned landfills.
292.21(1)(c)2.h.
h. The collection and analysis of representative samples of soil or other materials in the ground that are suspected of being contaminated based on observations made during a visual inspection of the real property or based on aerial photographs, or other information available to the lender, including stained or discolored soil or other materials in the ground and including soil or materials in the ground in areas with dead or distressed vegetation. The collection and analysis shall identify contaminants in the soil or other materials in the ground and shall quantify concentrations.
292.21(1)(c)2.i.
i. The collection and analysis of representative samples of unknown wastes or potentially hazardous substances found on the real property and the determination of concentrations of hazardous waste and hazardous substances found in tanks, drums or other containers or in piles or lagoons on the real property.
292.21(1)(d)
(d)
Personal property and fixtures. A lender that enforces a security interest in personal property or fixtures at a particular location, filed under
ch. 409, and that does not acquire title to, or possession or control of, the real property at that location, except for purposes of protecting and removing personal property or fixtures, is not subject to
s. 292.11 (3),
(4) and
(7) (b) and
(c) and is not liable under this chapter for a discharge of a hazardous substance on that real property if all of the following conditions are satisfied:
292.21(1)(d)1.
1. Not more than 30 days after entry onto the real property where the personal property or fixtures are located, the lender notifies the department and the borrower of any decision not to accept specific personal property or fixtures.
292.21(1)(d)2.
2. Not more than 30 days after entry onto the real property where the personal property or fixtures are located, the lender provides the department with a written general description of the personal property or fixtures, the location of the personal property or fixtures on the real property and the location of the real property by street address.
292.21(1)(d)3.
3. The lender, within its ability to do so, permits reasonable access to the personal property or fixtures to the department or the borrower or others acting on the borrower's behalf.
292.21(1)(d)4.
4. The lender does not engage in the operation of a business at the location of the personal property or fixtures, completion of work in progress or other actions associated with conducting the conclusion of the borrower's business except for actions that are undertaken to protect the property and are approved by the department in writing.
292.21(1)(e)
(e)
Rules; approvals. The department may promulgate rules further specifying the activities to be carried out by a lender for the environmental assessment required under
par. (c) 1. d. The department may not, by rule, require a lender to undertake sampling and analysis beyond that required under
par. (c) 2. h. and
i. in order to determine the degree and extent of contamination or require a lender to perform any remedial action to clean any discharge. The department may approve, by rule or in a site-specific approval, the use of reliable methods of identification other than the collection and laboratory analysis of samples.
292.21(2)
(2) Responsibility of representatives. 292.21(2)(a)(a) A representative who acquires title to, or possession or control of, real or personal property is not personally liable under this chapter for a discharge of a hazardous substance if all of the following circumstances apply:
292.21(2)(a)1.
1. The representative acquires title to, or possession or control of, the real or personal property in the capacity of a representative.
292.21(2)(a)2.
2. The representative, through action or inaction, does not knowingly, wilfully or recklessly cause a discharge of a hazardous substance.
