AB100-engrossed,1783,4
2(2) Application. A municipality may apply to the department for an exemption
3from liability with respect to property that contains a closed landfill and that is
4acquired by the municipality before, on or after the effective date of this subsection.
AB100-engrossed,1783,6
5(3) Conditions for approval. The department shall approve an application
6under sub. (2) if all of the following apply:
AB100-engrossed,1783,77
(a) The landfill is closed when the municipality acquires the property.
AB100-engrossed,1783,98
(b) The landfill closure complies with all rules of the department at the time
9of the application under sub. (2).
AB100-engrossed,1783,1110
(c) The municipality did not have an ownership interest in the landfill while
11the landfill was in operation.
AB100-engrossed,1783,1312
(d) The municipality enters into an agreement with the department that
13contains requirements for the municipality to maintain the property.
AB100-engrossed,1783,1514
(e) The department determines that an exemption from liability under this
15section is in the public interest.
AB100-engrossed,1783,1616
(f) The landfill was privately owned while it was in operation.
AB100-engrossed,1783,1717
(g) The landfill has caused groundwater contamination.
AB100-engrossed,1783,2118
(h) A steering committee of local public and private representatives was formed
19to address the contamination caused by the landfill in a cooperative effort with the
20department that prevented the landfill from being listed on the national priority list
21under
42 USC 9605 (a) (8) (B).
AB100-engrossed,1783,2322
(i) The remedial action approved by the department authorized a recreational
23use for the property and was completed by December 31, 1995.
AB100-engrossed,1784,4
24(4) Scope of exemption. An approval by the department under sub. (3)
25exempts the municipality from liability imposed under ss. 289.05, 289.41, 289.46,
1289.95, 291.37, 291.85 (2), 292.11 (3), (4) and (7) (b) and (c) and 292.31 (8), and rules
2promulgated under those provisions, based on the municipality's ownership of the
3property. The exemption does not apply to any liability based on hazardous
4substances for which the municipality is responsible as a generator or transporter.
AB100-engrossed,1784,6
5(5) Requirements. If the department approves a municipality's application
6under sub. (3), the municipality shall do all of the following:
AB100-engrossed,1784,97
(a) Obtain the prior approval of the department for any proposed uses of the
8property, for any physical disturbance of the soil and for any construction on the
9property.
AB100-engrossed,1784,1210
(b) Allow access to the property by any person who is required to conduct
11monitoring, to operate and maintain equipment or to undertake remedial action in
12connection with the closed landfill.
AB100-engrossed,1784,18
14292.19 Responsibility of persons conducting investigations. (1) For
15purposes of this chapter, a person who conducts an investigation of property to
16determine the existence of, or to obtain information about, a discharge of a hazardous
17substance does not possess or control the hazardous substance or cause the discharge
18of the hazardous substance as the result of conducting the investigation.
AB100-engrossed,1784,21
19(2) If the person who conducts the investigation physically causes a discharge,
20sub. (1) does not apply with respect to the portion of the property on which the person
21causes the discharge.
AB100-engrossed,1784,24
23292.26 Civil immunity; local governmental units. (1) In this section,
24"local governmental unit" has the meaning given in s. 292.11 (9) (e) 1.
AB100-engrossed,1785,5
1(2) Except as provided in sub. (3), a local governmental unit is immune from
2civil liability related to the discharge of a hazardous substance on or from property
3formerly owned or controlled by the local governmental unit if the property is no
4longer owned by the local governmental unit at the time that the discharge is
5discovered and if any of the following applies:
AB100-engrossed,1785,76
(a) The local governmental unit acquired the property through tax delinquency
7proceedings or as the result of an order by a bankruptcy court.
AB100-engrossed,1785,98
(b) The local governmental unit acquired the property from a local
9governmental unit that acquired the property under a method described in par. (a).
AB100-engrossed,1785,1110
(c) The local governmental unit acquired the property through condemnation
11or other proceeding under ch. 32.
AB100-engrossed,1785,1312
(d) The local governmental unit acquired the property for the purpose of slum
13clearance or blight elimination.
AB100-engrossed,1785,16
14(3) Subsection (2) does not apply with respect to a discharge of a hazardous
15substance caused by an activity conducted by the local governmental unit while the
16local governmental unit owned or controlled the property.
AB100-engrossed,1785,2019
292.31
(7) (c) 4. All moneys received under this paragraph shall be credited to
20the environmental fund for environmental
repair management.
AB100-engrossed,1786,222
292.31
(8) (g)
Disposition of funds. If the original expenditure was made from
23the environmental repair fund, under s. 25.46, 1987 stats., or the environmental
24fund, the net proceeds of the recovery shall be paid into the environmental fund for
25environmental
repair management. If the original expenditure was made from the
1investment and local impact fund, the net proceeds of the recovery shall be paid into
2the investment and local impact fund.
AB100-engrossed,1786,5
4292.35 (title)
Political subdivision Local governmental unit
5negotiation and cost recovery.
AB100-engrossed,1786,97
292.35
(1) (bm) "Local governmental unit" means a municipality, a
8redevelopment authority created under s. 66.431 or a public body designated by a
9municipality under s. 66.435 (4).
AB100-engrossed,1786,1412
292.35
(1) (f) "Site or facility"
has the meaning given in s. 292.61 (1) (b) means
13an approved facility, an approved mining facility, a nonapproved facility, a waste site
14or any site where a hazardous substance is discharged on or after May 21, 1978.
AB100-engrossed,1786,1816
292.35
(2) Applicability. This section only applies to a site or facility if the site
17or facility is owned by a
political subdivision local governmental unit. This section
18does not apply to a landfill until January 1, 1996.
AB100-engrossed,1786,2420
292.35
(2g) (a) A
political subdivision local governmental unit that intends to
21use the cost recovery procedures in this section shall attempt to identify all
22responsible parties. All information obtained by the
political subdivision local
23governmental unit regarding responsible parties is a public record and may be
24inspected and copied under s. 19.35.
AB100-engrossed,1787,7
1292.35
(2g) (b) (intro.) Upon the request of an employe or authorized
2representative of the
political subdivision local governmental unit, or pursuant to a
3special inspection warrant under s. 66.122, any person who generated, transported,
4treated, stored or disposed of a hazardous substance that may have been disposed
5of or discharged at the site or facility or who is or was an owner or operator shall
6provide the employe or authorized representative access to any records or documents
7in that person's custody, possession or control that relate to all of the following:
AB100-engrossed,1787,129
292.35
(2g) (c) The
political subdivision local governmental unit shall maintain
10a single repository that is readily accessible to the public for all documents related
11to responsible parties, the investigation, the remedial action and plans for
12redevelopment of the property.
AB100-engrossed,1787,1514
292.35
(2r) (a) The
political subdivision local governmental unit shall, in
15consultation with the department, prepare a draft remedial action plan.
AB100-engrossed,1788,317
292.35
(2r) (b) Upon completion of the draft remedial action plan, the
political
18subdivision local governmental unit shall send written notice to all responsible
19parties identified by the
political subdivision local governmental unit, provide public
20notice and conduct a public hearing on the draft remedial action plan. The notice to
21responsible parties shall offer the person receiving the notice an opportunity to
22provide information regarding the status of that person or any other person as a
23responsible party, notice and a description of the public hearing and a description of
24the procedures in this section. At the public hearing, the
political subdivision local
25governmental unit shall solicit testimony on whether the draft remedial action plan
1is the least costly method of meeting the standards for remedial action promulgated
2by the department by rule. The
political subdivision
local governmental unit shall
3accept written comments for at least 30 days after the close of the public hearing.
AB100-engrossed,1788,105
292.35
(2r) (c) Upon the conclusion of the period for written comment, the
6political subdivision local governmental unit shall prepare a preliminary remedial
7action plan, taking into account the written comments and comments received at the
8public hearing and shall submit the preliminary remedial action plan to the
9department for approval. The department may approve the preliminary remedial
10action plan as submitted or require modifications.
AB100-engrossed,1788,1912
292.35
(3) (a) (intro.) Upon receiving the department's approval of the
13preliminary remedial action plan, the
political subdivision local governmental unit 14shall serve an offer to settle regarding the contribution of funds for investigation and
15remedial action at the site or facility on each of the responsible parties identified by
16the
political subdivision local governmental unit, using the procedure for service of
17a summons under s. 801.11 and shall notify the department that the offer to settle
18has been served. The
political subdivision local governmental unit shall include in
19the offer to settle all of the following information:
AB100-engrossed,1788,2321
292.35
(3) (a) 2. The names, addresses and contact persons, to the extent
22known, for all of the responsible parties identified by the
political subdivision local
23governmental unit.
AB100-engrossed,1789,3
1292.35
(3) (a) 3. The location and availability of documents that support the
2claim of the
political subdivision local governmental unit against the responsible
3party.
AB100-engrossed,1789,105
292.35
(3) (b) The department shall maintain a list of competent and
6disinterested umpires qualified to perform the duties under subs. (4) to (6). None of
7the umpires may be employes of the department. Upon receiving notice from a
8political subdivision local governmental unit under par. (a), the secretary or his or
9her designee shall select an umpire from the list and inform the
political subdivision 10local governmental unit and responsible parties of the person selected.
AB100-engrossed,1789,2312
292.35
(3) (c) Within 10 days after receiving notice of the umpire selected by
13the department under par. (b), the
political subdivision local governmental unit may
14notify the department that the umpire selected is unacceptable. Within 10 days after
15receiving notice of the umpire selected by the department under par. (b), a
16responsible party may notify the department that the umpire selected is
17unacceptable or that the responsible party does not intend to participate in the
18negotiation. Failure to notify the department that the umpire is unacceptable shall
19be considered acceptance. If all responsible parties identified by the
political
20subdivision local governmental unit indicate that they do not intend to participate
21in the negotiation, the department shall inform the
political subdivision local
22governmental unit and the
political subdivision
local governmental unit shall cease
23further action under this section.
AB100-engrossed,1790,4
1292.35
(3) (d) Upon receiving notice under par. (c) that the selected umpire is
2unacceptable, the secretary or his or her designee shall select 5 additional umpires
3from the list and inform the
political subdivision
local governmental unit and
4responsible parties of the persons selected.
AB100-engrossed,1790,146
292.35
(3) (e) Within 10 days after receiving notice of the umpires selected by
7the department under par. (d), the
political subdivision local governmental unit or
8a responsible party may notify the department that one or more of the umpires
9selected are unacceptable. Failure to notify the department shall be considered
10acceptance. The secretary or his or her designee shall select an umpire from among
11those umpires not identified as unacceptable by the
political subdivision local
12governmental unit or a responsible party or, if all umpires are identified as
13unacceptable, the secretary or his or her designee shall designate a person to be
14umpire for the negotiation.
AB100-engrossed,1790,2516
292.35
(4) (a) The umpire, immediately upon being appointed, shall contact the
17department, the
political subdivision local governmental unit and the responsible
18parties that received the offer to settle and shall schedule the negotiating sessions.
19The umpire shall schedule the first negotiating session no later than 20 days after
20being appointed. The umpire may meet with all parties to the negotiation, individual
21parties or groups of parties. The umpire shall facilitate a discussion between the
22political subdivision local governmental unit and the responsible parties to attempt
23to reach an agreement on the design and implementation of the remedial action plan
24and the contribution of funds by the
political subdivision local governmental unit and
25responsible parties.
AB100-engrossed,1791,72
292.35
(4) (d) The
political subdivision local governmental unit and the
3responsible parties that participate in negotiations shall pay for the costs of the
4umpire, whether or not an agreement among the parties is reached under sub. (5) or
5the parties accept the recommendation of the umpire under sub. (6). The umpire
6shall determine an equitable manner of paying for the costs of the umpire, which is
7binding.
AB100-engrossed,1791,169
292.35
(5) Agreement in negotiation. The
political subdivision local
10governmental unit and any of the responsible parties may enter into any agreement
11in negotiation regarding the design and implementation of the remedial action plan
12and the contribution of funds by the
political subdivision local governmental unit and
13responsible parties for the investigation and remedial action. The portion of the
14agreement containing the design and implementation of the remedial action plan
15shall be submitted to the department for approval. The department may approve
16that portion of the agreement as submitted or require modifications.
AB100-engrossed,1792,618
292.35
(6) (a) If the
political subdivision local governmental unit and any
19responsible parties are unable to reach an agreement under sub. (5) by the end of the
20period of negotiation, the umpire shall make a recommendation regarding the design
21and implementation of the remedial action plan and the contribution of funds for
22investigation and remedial action by the
political subdivision local governmental
23unit and all responsible parties that were identified by the
political subdivision local
24governmental unit and that did not reach an agreement under sub. (5), whether or
25not the responsible parties participated in negotiations under sub. (4). The umpire
1shall submit the recommendation to the department for its approval within 20 days
2after the end of the period of negotiation under sub. (4) (c). The department may
3approve the recommendation as submitted or require modifications. The umpire
4shall distribute a copy of the approved recommendation to the
political subdivision 5local governmental unit and all responsible parties identified by the
political
6subdivision local governmental unit.
AB100-engrossed,1792,158
292.35
(6) (b) The
political subdivision local governmental unit and the
9responsible parties that did not reach an agreement under sub. (5) shall accept or
10reject the umpire's recommendation within 60 days after receiving it. Failure to
11accept or reject the recommendation within 60 days shall be considered rejection of
12the recommendation. If the
political subdivision
local governmental unit rejects the
13recommendation with respect to any responsible party, the recommendation does not
14apply to that responsible party. If a responsible party rejects the recommendation,
15it does not apply to that responsible party.
AB100-engrossed,1793,417
292.35
(7) Responsible parties subject to an agreement or recommendation. 18A responsible party that enters into an agreement under sub. (5) with a
political
19subdivision local governmental unit or that accepts the umpire's recommendation
20under sub. (6), if the
political subdivision local governmental unit does not reject the
21recommendation, is required to comply with the agreement or recommendation.
22When the responsible party has complied with the agreement or recommendation,
23the responsible party is not liable to the state, including under s. 292.11 (7) (b) or
24292.31 (8), or to the
political subdivision local governmental unit for any additional
25costs of the investigation or remedial action; the responsible party is not liable to any
1other responsible party for contribution to costs incurred by any other responsible
2party for the investigation or remedial action; and the responsible party is not subject
3to an order under s. 292.11 (7) (c) for the discharge that is the subject of the agreement
4or recommendation.
AB100-engrossed,1793,86
292.35
(8) (b) (intro.) A
political subdivision local governmental unit is entitled
7to recover litigation expenses and interest on the judgment against a responsible
8party if any of the following occurs:
AB100-engrossed,1793,1410
292.35
(8) (b) 1. The
political subdivision local governmental unit accepts the
11recommendation of an umpire under sub. (6), the responsible party rejects it and the
12political subdivision local governmental unit recovers a judgment under sub. (9)
13against that responsible party that equals or exceeds the amount of the umpire's
14recommendation.
AB100-engrossed,1793,2116
292.35
(8) (b) 2. The
political subdivision local governmental unit and the
17responsible party enter into an agreement under sub. (5) or accept the umpire's
18recommendation under sub. (6), the responsible party does not comply with the
19requirements of the agreement or recommendation and the
political subdivision 20local governmental unit recovers a judgment against that responsible party based
21on the agreement or recommendation.
AB100-engrossed,1794,623
292.35
(8) (c) A responsible party is entitled to recover litigation expenses from
24a
political subdivision local governmental unit if the responsible party accepts the
25recommendation of an umpire under sub. (6), the
political subdivision local
1governmental unit rejects the recommendation of the umpire under sub. (6) with
2respect to the responsible party, the
political subdivision local governmental unit 3institutes an action under sub. (9) against the responsible party and the
political
4subdivision local governmental unit recovers a judgment under sub. (9) against the
5responsible party that is equal to or less than the amount of the umpire's
6recommendation.
AB100-engrossed, s. 3715
7Section
3715. 292.35 (9) (b) 1. of the statutes is renumbered 292.35 (9) (b) and
8amended to read:
AB100-engrossed,1794,159
292.35
(9) (b) Except as provided in pars. (bm), (br) and (e), sub. (7) and s.
10292.21, a responsible party is liable for a portion of the costs, as determined under
11pars. (c) to (e), incurred by a
political subdivision
local governmental unit for
12remedial action in an agreement under sub. (5) or a recommendation under sub. (6)
13and for any related investigation. A right of action shall accrue to a
political
14subdivision local governmental unit against the responsible party for costs listed in
15this
subdivision paragraph.