1997 Wisconsin Act 27

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.

(c) The department may determine whether further action is necessary to remedy environmental pollution 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.

(b) “Case closure letter" means a letter provided by the department that states that, based on information available to the department, no further remedial action is necessary with respect to a dry cleaning solvent discharge.

(d) “Dry cleaning facility" means a facility for dry cleaning apparel or household fabrics for the general public other than a facility that is one of the following:

1. A coin-operated facility.

2. A facility that is located on a U.S. military installation.

3. An industrial laundry.

4. A commercial laundry.

5. A linen supply facility.

6. A facility that is located at a prison or other penal institution.

7. A facility that is located at a nonprofit hospital or at another nonprofit health care institution.

8. A facility that is located on property that is owned by the federal government or by this state or that is located on property that was owned by the federal government or by this state when the facility was operating.

(e) “Dry cleaning solvent" means a chlorine-based or hydrocarbon-based formulation or product that is used as a primary cleaning agent in dry cleaning facilities.

(g) “Groundwater" has the meaning given in s. 281.75 (1) (c).

(gm) “Immediate action" means a remedial action that is taken within a short time after a discharge of dry cleaning solvent occurs, or after the discovery of a discharge of dry cleaning solvent, to halt the discharge, contain or remove discharged dry cleaning solvent or remove contaminated soil or water in order to restore the environment to the extent practicable and to minimize the harmful effects of the discharge to air, lands and waters of the state and to eliminate any imminent threat to public health, safety or welfare.

(h) “Operator" means any of the following:

1. A person who holds the license under s. 77.9961 (2) for a dry cleaning facility.

2. A subsidiary or parent corporation of the person specified under subd. 1.

(i) “Owner" means any of the following:

1. A person who owns, or has possession or control of, a dry cleaning facility, or who receives direct or indirect consideration from the operation of a dry cleaning facility regardless of whether the dry cleaning facility remains in operation and regardless of whether the person owns or receives consideration at the time that environmental pollution occurs.

2. A subsidiary or parent corporation of the person specified under subd. 1.

(j) “Program year" means the period beginning on July 1, and ending on the following June 30.

(k) “Property damage" does not include those liabilities that are excluded from coverage in liability insurance policies for property damage, other than liability for remedial action associated with dry cleaning solvent discharges from affected dry cleaning facilities. “Property damage" does not include the loss of fair market value resulting from a discharge.

(L) “Service provider" means a consultant, testing laboratory, monitoring well installer, soil boring contractor, other contractor, lender or any other person who provides a product or service for which an application for reimbursement has been or will be filed under this section, or a subcontractor of such a person.

(m) “Subsidiary or parent corporation" means a business entity, including a subsidiary, parent corporation or other business arrangement, that has elements of common ownership or control or that uses a long-term contractual arrangement with a person to avoid direct responsibility for conditions at a dry cleaning facility.

(2) Rules concerning 3rd-party compensation. The commissioner of insurance shall promulgate rules defining “liabilities that are excluded from coverage in liability insurance policies for bodily injury" and “liabilities that are excluded from coverage in liability insurance policies for property damage" for the purposes of sub. (1) (a) and (k). The definitions shall be consistent with standard insurance industry practices.

(3) Duties of the department. (a) The department shall promulgate rules for the administration of the program under this section.

(am) 1. The department shall establish a method for determining the order in which it pays awards under this section. Except as provided in subds. 2. and 3., the method shall be based on environmental factors and on the order in which applications are received.

2. The department shall pay an award for immediate action activities within 2 working days of receipt of the application. For the purposes of this subdivision, removal of contaminated soils and recovery of free dry cleaning solvent are not considered immediate action activities.

3. After awards for immediate action activities, the department shall give highest priority to paying awards for eligible costs incurred before the effective date of this subdivision .... [revisor inserts date].

(b) The department shall promote the program under this section to persons who may be eligible for awards.

(c) The department shall allocate 9.7% of the funds appropriated under s. 20.370 (6) (eq) in each fiscal year for awards for immediate action activities and applications that exceed the amount anticipated.

(cm) 1. If the department determines that immediate action is necessary in response to a discharge of dry cleaning solvent, the owner or operator of the dry cleaning facility conducts the immediate action and is eligible for an award under this section and the amounts appropriated under s. 20.370 (6) (eq) are not sufficient to pay the award, the department shall pay the award using funds under s. 20.370 (2) (dv). Awards under this subdivision have priority over other payments under s. 20.370 (2) (dv) except for payments under s. 292.31 (4) and (5).

2. Whenever the department of natural resources pays an award under subd. 1., it shall provide a notice to the department of revenue stating the amount of the award.

(d) The department shall keep records and statistics on the program under this section and shall periodically evaluate the effectiveness of the program.

(e) No later than January 1, 2002, the department shall complete a review of the program under this section and shall submit a report on the results of the review to the joint committee on finance and to the appropriate standing committees of the legislature, as determined by the speaker of the house and the president of the senate, under s. 13.172 (3). The report shall include the department's recommendations for changes to the program. The review shall include consideration of whether the program should be expanded or ended, whether the program should be incorporated into a broader program of financial assistance for the remediation of environmental contamination and whether private insurance coverage should be required for any dry cleaning facilities.

(4) Process; eligibility. (a) General requirements. To be eligible for an award under this section, the owner or operator of a dry cleaning facility shall comply with pars. (b), (c), (e), (f) and (j) and the other requirements of this section applicable to the owner or operator.

(b) Report. An owner or operator shall report a dry cleaning solvent discharge to the department in a timely manner, as provided in s. 292.11.

(c) Notification of potential claim. 1. An owner or operator shall notify the department, before conducting a site investigation or any remedial action activity, of the potential for submitting an application for an award under this section, except as provided in subd. 2.

2. Subdivision 1. does not apply to an owner or operator who began a site investigation or remedial action activity before the effective date of this subdivision .... [revisor inserts date].

(d) Information from department. When an owner or operator notifies the department under par. (c) 1., the department shall provide the owner or operator with information on the program under this section and the department's estimate of the eligibility of the owner or operator for an award under this section.

(e) Investigation. After notifying the department under par. (c) 1., if applicable, and before conducting remedial action activities, an owner or operator shall complete an investigation to determine the extent of environmental impact of the dry cleaning solvent discharge, except as provided in pars. (g) and (h).

(f) Remedial action plan. After completing the investigation under par. (e) and before conducting remedial action activities, an owner or operator shall prepare a remedial action plan, based on the investigation under par. (e), that identifies specific remedial action activities proposed to be conducted, except as provided in pars. (g) and (h).

(g) Immediate action. An owner or operator is not required to complete an investigation or prepare a remedial action plan before conducting an immediate action activity if the department determines that an immediate action is necessary.

(h) Interim remedial equipment. An owner or operator may install interim remedial equipment for which the owner or operator would be eligible for reimbursement under s. 292.66 before completing a site investigation or remedial action plan.

(i) Review of site investigation and remedial action plan. The department shall, at the request of an owner or operator, review the site investigation results and the remedial action plan and advise the owner or operator on the adequacy of the proposed remedial action activities in meeting the requirements of this section. The department shall complete the review of the site investigation and remedial action plan within 45 days. The department shall also provide an estimate of when funding will be available to pay an award for remedial action conducted in response to the dry cleaning solvent discharge.

(j) Remedial action. The owner or operator shall conduct all remedial action activities that are required under this section in response to the dry cleaning solvent discharge, including all of the following:

1. Recovering any recoverable dry cleaning solvent from the environment.

2. Managing any residual solid or hazardous waste in a manner consistent with local, state and federal law.

3. Restoring groundwater according to the standards promulgated by the department under ss. 160.07 and 160.09.

(k) Agents. An owner or operator may enter into a written agreement with another person under which that other person acts as an agent for the owner or operator in conducting the activities required under par. (j). The owner or operator and the agent shall jointly submit the application for an award under this section.

(L) Awards for dry cleaning facilities on tribal trust lands. The owner or operator of a dry cleaning facility located on trust lands of an American Indian tribe may be eligible for an award under this section if the owner or operator otherwise satisfies the requirements of this subsection and complies with the rules promulgated under this section and any other rules promulgated by the department concerning dry cleaning facilities.

(5) Enhanced pollution prevention measures. (a) 1. The owner or operator of a dry cleaning facility on which construction begins after the effective date of this subdivision .... [revisor inserts date], is not eligible for an award under this section unless the owner or operator has implemented the enhanced pollution prevention measures described in par. (b).

2. The owner or operator of a dry cleaning facility on which construction began on or before the effective date of this subdivision .... [revisor inserts date], is ineligible for an award under this section with respect to a discharge that occurs on or after the 91st day after the day on which the department issues a case closure letter with respect to an earlier discharge of dry cleaning solvent from the dry cleaning facility, unless the owner or operator has implemented the enhanced pollution prevention measures described in par. (b).

(b) An owner or operator who is required to implement enhanced pollution prevention measures shall demonstrate all of the following: