Wisconsin Legislature: 27,3696

292.26 Civil immunity; local governmental units. (1) In this section, “local governmental unit" has the meaning given in s. 292.11 (9) (e) 1.

(2) Except as provided in sub. (3), a local governmental unit is immune from civil liability related to the discharge of a hazardous substance on or from property formerly owned or controlled by the local governmental unit if the property is no longer owned by the local governmental unit at the time that the discharge is discovered and if any of the following applies:

(a) The local governmental unit acquired the property through tax delinquency proceedings or as the result of an order by a bankruptcy court.

(b) The local governmental unit acquired the property from a local governmental unit that acquired the property under a method described in par. (a).

(d) The local governmental unit acquired the property for the purpose of slum clearance or blight elimination.

(3) Subsection (2) does not apply with respect to a discharge of a hazardous substance caused by an activity conducted by the local governmental unit while the local governmental unit owned or controlled the property.

27,3684 Section 3684. 292.31 (2) (f) of the statutes is repealed.

27,3685 Section 3685 . 292.31 (7) (c) 4. of the statutes is amended to read:

292.31 (7) (c) 4. All moneys received under this paragraph shall be credited to the environmental fund for environmental repair management.

27,3686 Section 3686 . 292.31 (8) (g) of the statutes is amended to read:

292.31 (8) (g) Disposition of funds. If the original expenditure was made from the environmental repair fund, under s. 25.46, 1987 stats., or the environmental fund, the net proceeds of the recovery shall be paid into the environmental fund for environmental repair management. If the original expenditure was made from the investment and local impact fund, the net proceeds of the recovery shall be paid into the investment and local impact fund.

27,3687 Section 3687 . 292.35 (title) of the statutes is amended to read:

292.35 (title) Political subdivision Local governmental unit negotiation and cost recovery.

27,3688 Section 3688 . 292.35 (1) (bm) of the statutes is created to read:

292.35 (1) (bm) “Local governmental unit" means a municipality, a redevelopment authority created under s. 66.431 or a public body designated by a municipality under s. 66.435 (4).

27,3689 Section 3689 . 292.35 (1) (d) of the statutes is repealed.

27,3690 Section 3690 . 292.35 (1) (f) of the statutes is amended to read:

292.35 (1) (f) “Site or facility" has the meaning given in s. 292.61 (1) (b) means an approved facility, an approved mining facility, a nonapproved facility, a waste site or any site where a hazardous substance is discharged on or after May 21, 1978.

27,3691 Section 3691 . 292.35 (2) of the statutes is amended to read:

292.35 (2) Applicability. This section only applies to a site or facility if the site or facility is owned by a political subdivision local governmental unit. This section does not apply to a landfill until January 1, 1996.

27,3692 Section 3692 . 292.35 (2g) (a) of the statutes is amended to read:

292.35 (2g) (a) A political subdivision local governmental unit that intends to use the cost recovery procedures in this section shall attempt to identify all responsible parties. All information obtained by the political subdivision local governmental unit regarding responsible parties is a public record and may be inspected and copied under s. 19.35.

27,3693 Section 3693 . 292.35 (2g) (b) (intro.) of the statutes is amended to read:

292.35 (2g) (b) (intro.) Upon the request of an employe or authorized representative of the political subdivision local governmental unit, or pursuant to a special inspection warrant under s. 66.122, any person who generated, transported, treated, stored or disposed of a hazardous substance that may have been disposed of or discharged at the site or facility or who is or was an owner or operator shall provide the employe or authorized representative access to any records or documents in that person's custody, possession or control that relate to all of the following:

27,3694 Section 3694 . 292.35 (2g) (c) of the statutes is amended to read:

292.35 (2g) (c) The political subdivision local governmental unit shall maintain a single repository that is readily accessible to the public for all documents related to responsible parties, the investigation, the remedial action and plans for redevelopment of the property.

27,3695 Section 3695 . 292.35 (2r) (a) of the statutes is amended to read:

292.35 (2r) (a) The political subdivision local governmental unit shall, in consultation with the department, prepare a draft remedial action plan.

27,3696 Section 3696 . 292.35 (2r) (b) of the statutes is amended to read:

292.35 (2r) (b) Upon completion of the draft remedial action plan, the political subdivision local governmental unit shall send written notice to all responsible parties identified by the political subdivision local governmental unit, provide public notice and conduct a public hearing on the draft remedial action plan. The notice to responsible parties shall offer the person receiving the notice an opportunity to provide information regarding the status of that person or any other person as a responsible party, notice and a description of the public hearing and a description of the procedures in this section. At the public hearing, the political subdivision local governmental unit shall solicit testimony on whether the draft remedial action plan is the least costly method of meeting the standards for remedial action promulgated by the department by rule. The political subdivision local governmental unit shall accept written comments for at least 30 days after the close of the public hearing.

27,3697 Section 3697 . 292.35 (2r) (c) of the statutes is amended to read:

292.35 (2r) (c) Upon the conclusion of the period for written comment, the political subdivision local governmental unit shall prepare a preliminary remedial action plan, taking into account the written comments and comments received at the public hearing and shall submit the preliminary remedial action plan to the department for approval. The department may approve the preliminary remedial action plan as submitted or require modifications.

27,3698 Section 3698 . 292.35 (3) (a) (intro.) of the statutes is amended to read:

292.35 (3) (a) (intro.) Upon receiving the department's approval of the preliminary remedial action plan, the political subdivision local governmental unit shall serve an offer to settle regarding the contribution of funds for investigation and remedial action at the site or facility on each of the responsible parties identified by the political subdivision local governmental unit, using the procedure for service of a summons under s. 801.11 and shall notify the department that the offer to settle has been served. The political subdivision local governmental unit shall include in the offer to settle all of the following information:

27,3699 Section 3699 . 292.35 (3) (a) 2. of the statutes is amended to read:

292.35 (3) (a) 2. The names, addresses and contact persons, to the extent known, for all of the responsible parties identified by the political subdivision local governmental unit.

27,3700 Section 3700 . 292.35 (3) (a) 3. of the statutes is amended to read:

292.35 (3) (a) 3. The location and availability of documents that support the claim of the political subdivision local governmental unit against the responsible party.

27,3701 Section 3701 . 292.35 (3) (b) of the statutes is amended to read:

292.35 (3) (b) The department shall maintain a list of competent and disinterested umpires qualified to perform the duties under subs. (4) to (6). None of the umpires may be employes of the department. Upon receiving notice from a political subdivision local governmental unit under par. (a), the secretary or his or her designee shall select an umpire from the list and inform the political subdivision local governmental unit and responsible parties of the person selected.

27,3702 Section 3702 . 292.35 (3) (c) of the statutes is amended to read:

292.35 (3) (c) Within 10 days after receiving notice of the umpire selected by the department under par. (b), the political subdivision local governmental unit may notify the department that the umpire selected is unacceptable. Within 10 days after receiving notice of the umpire selected by the department under par. (b), a responsible party may notify the department that the umpire selected is unacceptable or that the responsible party does not intend to participate in the negotiation. Failure to notify the department that the umpire is unacceptable shall be considered acceptance. If all responsible parties identified by the political subdivision local governmental unit indicate that they do not intend to participate in the negotiation, the department shall inform the political subdivision local governmental unit and the political subdivision local governmental unit shall cease further action under this section.

27,3703 Section 3703 . 292.35 (3) (d) of the statutes is amended to read:

292.35 (3) (d) Upon receiving notice under par. (c) that the selected umpire is unacceptable, the secretary or his or her designee shall select 5 additional umpires from the list and inform the political subdivision local governmental unit and responsible parties of the persons selected.

27,3704 Section 3704 . 292.35 (3) (e) of the statutes is amended to read:

292.35 (3) (e) Within 10 days after receiving notice of the umpires selected by the department under par. (d), the political subdivision local governmental unit or a responsible party may notify the department that one or more of the umpires selected are unacceptable. Failure to notify the department shall be considered acceptance. The secretary or his or her designee shall select an umpire from among those umpires not identified as unacceptable by the political subdivision local governmental unit or a responsible party or, if all umpires are identified as unacceptable, the secretary or his or her designee shall designate a person to be umpire for the negotiation.

27,3705 Section 3705 . 292.35 (4) (a) of the statutes is amended to read:

292.35 (4) (a) The umpire, immediately upon being appointed, shall contact the department, the political subdivision local governmental unit and the responsible parties that received the offer to settle and shall schedule the negotiating sessions. The umpire shall schedule the first negotiating session no later than 20 days after being appointed. The umpire may meet with all parties to the negotiation, individual parties or groups of parties. The umpire shall facilitate a discussion between the political subdivision local governmental unit and the responsible parties to attempt to reach an agreement on the design and implementation of the remedial action plan and the contribution of funds by the political subdivision local governmental unit and responsible parties.

27,3706 Section 3706 . 292.35 (4) (d) of the statutes is amended to read:

292.35 (4) (d) The political subdivision local governmental unit and the responsible parties that participate in negotiations shall pay for the costs of the umpire, whether or not an agreement among the parties is reached under sub. (5) or the parties accept the recommendation of the umpire under sub. (6). The umpire shall determine an equitable manner of paying for the costs of the umpire, which is binding.

27,3707 Section 3707 . 292.35 (5) of the statutes is amended to read:

292.35 (5) Agreement in negotiation. The political subdivision local governmental unit and any of the responsible parties may enter into any agreement in negotiation regarding the design and implementation of the remedial action plan and the contribution of funds by the political subdivision local governmental unit and responsible parties for the investigation and remedial action. The portion of the agreement containing the design and implementation of the remedial action plan shall be submitted to the department for approval. The department may approve that portion of the agreement as submitted or require modifications.

27,3708 Section 3708. 292.35 (6) (a) of the statutes is amended to read:

292.35 (6) (a) If the political subdivision local governmental unit and any responsible parties are unable to reach an agreement under sub. (5) by the end of the period of negotiation, the umpire shall make a recommendation regarding the design and implementation of the remedial action plan and the contribution of funds for investigation and remedial action by the political subdivision local governmental unit and all responsible parties that were identified by the political subdivision local governmental unit and that did not reach an agreement under sub. (5), whether or not the responsible parties participated in negotiations under sub. (4). The umpire shall submit the recommendation to the department for its approval within 20 days after the end of the period of negotiation under sub. (4) (c). The department may approve the recommendation as submitted or require modifications. The umpire shall distribute a copy of the approved recommendation to the political subdivision local governmental unit and all responsible parties identified by the political subdivision local governmental unit.

27,3709 Section 3709 . 292.35 (6) (b) of the statutes is amended to read:

292.35 (6) (b) The political subdivision local governmental unit and the responsible parties that did not reach an agreement under sub. (5) shall accept or reject the umpire's recommendation within 60 days after receiving it. Failure to accept or reject the recommendation within 60 days shall be considered rejection of the recommendation. If the political subdivision local governmental unit rejects the recommendation with respect to any responsible party, the recommendation does not apply to that responsible party. If a responsible party rejects the recommendation, it does not apply to that responsible party.

27,3710 Section 3710 . 292.35 (7) of the statutes is amended to read:

292.35 (7) Responsible parties subject to an agreement or recommendation. A responsible party that enters into an agreement under sub. (5) with a political subdivision local governmental unit or that accepts the umpire's recommendation under sub. (6), if the political subdivision local governmental unit does not reject the recommendation, is required to comply with the agreement or recommendation. When the responsible party has complied with the agreement or recommendation, the responsible party is not liable to the state, including under s. 292.11 (7) (b) or 292.31 (8), or to the political subdivision local governmental unit for any additional costs of the investigation or remedial action; the responsible party is not liable to any other responsible party for contribution to costs incurred by any other responsible party for the investigation or remedial action; and the responsible party is not subject to an order under s. 292.11 (7) (c) for the discharge that is the subject of the agreement or recommendation.

27,3711 Section 3711 . 292.35 (8) (b) (intro.) of the statutes is amended to read:

292.35 (8) (b) (intro.) A political subdivision local governmental unit is entitled to recover litigation expenses and interest on the judgment against a responsible party if any of the following occurs:

27,3712 Section 3712 . 292.35 (8) (b) 1. of the statutes is amended to read:

292.35 (8) (b) 1. The political subdivision local governmental unit accepts the recommendation of an umpire under sub. (6), the responsible party rejects it and the political subdivision local governmental unit recovers a judgment under sub. (9) against that responsible party that equals or exceeds the amount of the umpire's recommendation.

27,3713 Section 3713 . 292.35 (8) (b) 2. of the statutes is amended to read:

292.35 (8) (b) 2. The political subdivision local governmental unit and the responsible party enter into an agreement under sub. (5) or accept the umpire's recommendation under sub. (6), the responsible party does not comply with the requirements of the agreement or recommendation and the political subdivision local governmental unit recovers a judgment against that responsible party based on the agreement or recommendation.

27,3714 Section 3714 . 292.35 (8) (c) of the statutes is amended to read:

292.35 (8) (c) A responsible party is entitled to recover litigation expenses from a political subdivision local governmental unit if the responsible party accepts the recommendation of an umpire under sub. (6), the political subdivision local governmental unit rejects the recommendation of the umpire under sub. (6) with respect to the responsible party, the political subdivision local governmental unit institutes an action under sub. (9) against the responsible party and the political subdivision local governmental unit recovers a judgment under sub. (9) against the responsible party that is equal to or less than the amount of the umpire's recommendation.

27,3715 Section 3715 . 292.35 (9) (b) 1. of the statutes is renumbered 292.35 (9) (b) and amended to read:

292.35 (9) (b) Except as provided in pars. (bm), (br) and (e), sub. (7) and s. 292.21, a responsible party is liable for a portion of the costs, as determined under pars. (c) to (e), incurred by a political subdivision local governmental unit for remedial action in an agreement under sub. (5) or a recommendation under sub. (6) and for any related investigation. A right of action shall accrue to a political subdivision local governmental unit against the responsible party for costs listed in this subdivision paragraph.

27,3716 Section 3716 . 292.35 (9) (b) 2. of the statutes is repealed.

27,3717 Section 3717 . 292.41 (6) (c) of the statutes is amended to read:

292.41 (6) (c) The department is entitled to recover moneys expended under this section from any person who caused the containers to be abandoned or is responsible for the containers. The funds recovered under this paragraph shall be deposited into the environmental fund for environmental repair management.

27,3718 Section 3718 . 292.41 (6) (d) of the statutes is repealed.

27,3719 Section 3719 . 292.51 (2) of the statutes is amended to read:

292.51 (2) The department may seek and receive voluntary contributions of funds from a municipality or any other public or private source for all or part of the costs of remedying environmental contamination if the activities being funded are part of a cooperative effort, by the department and the person providing the funds, to remedy that environmental contamination. All contributions received under this subsection shall be deposited in the environmental fund.

27,3720 Section 3720 . 292.55 of the statutes is created to read:

292.55 Requests for liability clarification and technical assistance. (1) (a) The department may, upon request, assist a person to determine whether the person is or may become liable for the environmental pollution of a property.

(b) The department may, upon request, assist in, or provide comments on, the planning and implementation of an environmental investigation of a property or the environmental cleanup of a property.

(d) The department may issue a letter to a person seeking assistance under this subsection concerning any of the following:

1. The liability of a person owning or leasing a property for environmental pollution of the property.

2. The type and extent of environmental pollution of a property.

3. The adequacy of an environmental investigation.

4. Any other matter related to the request for assistance under this subsection.

(2) The department may assess and collect fees from a person to offset the costs of providing assistance under sub. (1). The department shall promulgate rules for the assessment and collection of fees under this subsection. Fees collected under this subsection shall be credited to the appropriation account under s. 20.370 (2) (dh).

27,3721 Section 3721 . 292.61 of the statutes is repealed.

27,3721e Section 3721e. 292.65 of the statutes is created to read:

292.65 Dry cleaner environmental response program. (1) Definitions. In this section and s. 292.66:

(a) “Bodily injury" does not include those liabilities that are excluded from coverage in liability insurance policies for bodily injury other than liabilities excluded be cause they are caused by a dry cleaning solvent discharge from a dry cleaning facility.