SB45: Bill Text

SB45,1176,2 5. The voluntary party does not engage in activities that are inconsistent with the maintenance of the property.

SB45,1176,7 6. The voluntary party 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 voluntary party knew or should have known about more discharges of hazardous substances than were revealed by the investigation conducted under subd. 1.

SB45, s. 2592 Section 2592. 292.15 (2) (ag) of the statutes is created to read:

SB45,1176,19 292.15 (2) (ag) Property affected by off-site discharge. Except as provided in sub. (6) or (7), for a property on which there exists a hazardous substance for which a voluntary party is exempt from liability under s. 292.13 (1), a voluntary party is exempt from the provisions of ss. 289.05 (1), (2), (3) and (4), 289.42 (1), 289.67, 291.25 (1) to (5), 291.29, 291.37, 292.11 (3), (4) and (7) (b) and (c) and 292.31 (8), and rules promulgated under those provisions, with respect to discharges of hazardous substances on or originating from the property, if the release of those hazardous substances occurred prior to the date on which the department approves the environmental investigation of the property under par. (a) 1., if par. (a) 1. and 4. to 6. apply and all of the following occur at any time before or after the date of acquisition:

SB45,1176,24 1. The environment is restored to the extent practicable with respect to the discharges and the harmful effects from the discharges are minimized in accordance with rules promulgated by the department and any contract entered into under those rules, except that this requirement does not apply with respect to the hazardous substance for which the voluntary party is exempt from liability under s. 292.13 (1).

SB45,1177,5 2. The voluntary party obtains a certificate of completion from the department stating that the environment has been satisfactorily restored to the extent practicable with respect to the discharges and that the harmful effects from the discharges have been minimized, except with respect to the hazardous substance for which the voluntary party is exempt from liability under s. 292.13 (1).

SB45,1177,8 3. The voluntary party obtains a written determination from the department under s. 292.13 (2) with respect to the hazardous substance for which the voluntary party is exempt from liability under s 292.13 (1).

SB45,1177,10 4. The voluntary party continues to satisfy the conditions under s. 292.13 (1) (d) to (g).

SB45, s. 2593 Section 2593. 292.15 (2) (am) (intro.) of the statutes is amended to read:

SB45,1177,20 292.15 (2) (am) Partial cleanup. (intro.) The department may approve a partial cleanup and issue a certificate of completion as provided in par. (a), (ae) or (ag) that states that not all of the property has been satisfactorily restored or that not all of the harmful effects from a discharge of a hazardous substance have been minimized. Approval of a partial cleanup exempts a voluntary party from ss. 291.37 (2) and 292.11 (3), (4) and (7) (b) and (c) with respect to the portion of the property or hazardous substances cleaned up under this paragraph. In addition to meeting the requirements of par. (a), (ae) or (ag), a certificate for a partial cleanup under this paragraph may be issued only if:

SB45, s. 2594 Section 2594. 292.15 (2) (ar) (title) of the statutes is created to read:

SB45,1177,22 292.15 (2) (ar) (title) Condition.

SB45, s. 2595 Section 2595. 292.15 (2) (at) of the statutes is created to read:

SB45,1178,6 292.15 (2) (at) Discharges discovered after environmental investigations. Except as provided in sub. (6) or (7), a voluntary party is exempt from ss. 289.05 (1), (2), (3) and (4), 289.42 (1), 289.67, 291.25 (1) to (5), 291.29, 291.37, 292.11 (3), (4) and (7) (b) and (c) and 292.31 (8), and rules promulgated under those provisions, with respect to a discharge of a hazardous substance on or originating from a property if the discharge occurred before the environmental investigation under subd. 1. is completed and is discovered after the environmental investigation under subd. 5. is approved and if all of the following apply:

SB45,1178,8 1. An initial environmental investigation of the property is conducted and is approved by the department.

SB45,1178,11 2. If required by the department, the voluntary party enters into an agreement with the department under which the voluntary party agrees to conduct a cleanup approved by the department.

SB45,1178,17 3. The voluntary party obtains and maintains insurance to cover the costs of complying with s. 292.11 (3) with respect to a hazardous substance discharges that occurred before the investigation under subd. 1. is completed and that are discovered in the course of conducting a cleanup of the property, the insurance complies with rules promulgated by the department and the insurance names the voluntary party and this state as insureds.

SB45,1178,20 4. A hazardous substance discharge that occurred before the investigation under subd. 1. is completed is discovered after the investigation under subd. 1. is approved and before the cleanup is completed.

SB45,1178,22 5. A 2nd environmental investigation of the property is conducted and is approved by the department.

SB45,1179,2 6. The voluntary party has not obtained approval of the investigation under subd. 1. or 5. or the agreement under subd. 2. by fraud or misrepresentation, by the knowing failure to disclose material information or under circumstances in which the voluntary party knew or should have known about more discharges of hazardous substances than were revealed by the investigation conducted under subd. 1. or 5.

SB45, s. 2596 Section 2596. 292.15 (2) (b) of the statutes is amended to read:

SB45,1179,7 292.15 (2) (b) Extent of exemptions. The exemptions provided in pars. (a), (ae), (ag) and (am) continue to apply after the date of certification by the department under par. (a) 3., (ae) 3. or (ag) 2., or approval by the department under par. (am), notwithstanding the occurrence of any of the following:

SB45,1179,10 1. Statutes, rules or regulations are created or amended that would impose greater responsibilities on the voluntary party than those imposed under par. (a) 2., (ae) 2. or (ag) 1.

SB45,1179,14 2. The voluntary party fully complies with the rules promulgated by the department and any contract entered into under those rules under par. (a) 2., (ae) 2. or (ag) 1. but it is discovered that the cleanup fails to fully restore the environment and minimize the effects from a discharge of a hazardous substance.

SB45,1179,17 3. The contamination from a hazardous substance that is the subject of the cleanup under par. (a) 2., (ae) 2. or (ag) 1. is discovered to be more extensive than anticipated by the voluntary party and the department.

SB45, s. 2597 Section 2597. 292.15 (2) (c) (title) of the statutes is created to read:

SB45,1179,19 292.15 (2) (c) (title) Prohibition on action.

SB45, s. 2598 Section 2598. 292.15 (2) (c) of the statutes is amended to read:

SB45,1179,24 292.15 (2) (c) The department of justice may not commence an action under 42 USC 9607 against any voluntary party meeting the criteria of this subsection to recover costs for which the voluntary party is exempt under pars. (a), (ac), (ag), (am), (at) and (b).

SB45, s. 2599 Section 2599. 292.15 (2) (d) (title) of the statutes is created to read:

SB45,1180,1 292.15 (2) (d) (title) Exception.

SB45, s. 2600 Section 2600. 292.15 (2) (e) of the statutes is created to read:

SB45,1180,6 292.15 (2) (e) Contract with insurer. If the department requires insurance under par. (a) 7. or (ae) 3m., the department may contract with an insurer to provide insurance required under par. (a) 7. or (ae) 3m. and may require voluntary parties to obtain coverage under the contract.

SB45, s. 2601 Section 2601. 292.15 (3) of the statutes is amended to read:

SB45,1180,15 292.15 (3) Successors and assigns. The An exemption provided in sub. (2) applies to any successor or assignee of the voluntary party who qualifies as a voluntary party and who if the successor or assignee complies with the provisions of sub. (2) (a) 4. and 5. unless or (ae) 3m., 4. and 5. and, if applicable, sub. (2) (ag) 4. or (am) as though the successor or assignee were the voluntary party except that the exemption in sub. (2) does not apply if the successor or assignee knows that a certificate under sub. (2) (a) 3., (ae) 3., (ag) 12. or (am) was obtained by any of the means or under any of the circumstances specified in sub. (2) (a) 6.

SB45, s. 2602 Section 2602. 292.15 (4) (intro.) of the statutes is amended to read:

SB45,1180,22 292.15 (4) Limited responsibility. (intro.) The responsibility of a voluntary party under sub. (2) (a) 2. may be monetarily limited by agreement between the voluntary party and the department if the voluntary party purchased the property from a local governmental unit that acquired the property in a way or for a purpose described in s. 292.11 (9) (e) 1m. a., b., c. or d. The agreement shall stipulate all of the following:

SB45, s. 2603 Section 2603. 292.15 (5m) of the statutes is repealed.

SB45, s. 2604 Section 2604. 292.15 (6) of the statutes is renumbered 292.15 (6) (a) and amended to read:

SB45,1181,3 292.15 (6) (a) This section does not exempt property from any lien filed under s. 292.81 (3) for costs incurred by the department prior to the date that certification is issued under sub. (2) (a) 3., (ae) 3. or (ag) 2.

SB45, s. 2605 Section 2605. 292.15 (6) (b) of the statutes is created to read:

SB45,1181,8 292.15 (6) (b) This section does not exempt property from any lien filed under s. 292.81 (3) for costs that are incurred by the department with respect to a hazardous substance discharge described in sub. (2) (at) 3. and that are not covered by insurance required by sub. (2) (at) 3.

SB45, s. 2606 Section 2606. 292.21 (1) (c) 1. b. of the statutes is repealed.

SB45, s. 2607 Section 2607. 292.21 (1) (c) 1. g. of the statutes is created to read:

SB45,1181,15 292.21 (1) (c) 1. g. The lender agrees to allow the department, any authorized representatives of the department, any party that possessed or controlled the hazardous substance or caused the discharge of the hazardous substance and any consultant or contractor of such a party to enter the real property to take action to respond to the discharge.

SB45, s. 2608 Section 2608. 292.21 (1) (c) 1. h. of the statutes is created to read:

SB45,1181,19 292.21 (1) (c) 1. h. The lender agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge.

SB45, s. 2609 Section 2609. 292.21 (1) (c) 1. i. of the statutes is created to read:

SB45,1181,23 292.21 (1) (c) 1. i. The lender agrees to any other condition that the department determines is reasonable and necessary to ensure that the department or other person described in subd. 1. g. can adequately respond to the discharge.

SB45, s. 2610 Section 2610. 292.24 of the statutes is created to read:

SB45,1182,3 292.24 Responsibility of local governmental units; hazardous waste. (1) Definition. In this section, "local governmental unit" has the meaning given in s. 292.11 (9) (e) 1.

SB45,1182,8 (2) Exemption from liability. Except as provided in sub. (3), a local governmental unit is exempt from ss. 291.25 (1) to (5), 291.29 and 291.37, and rules promulgated under those provisions, with respect to the existence of a hazardous waste on property acquired in a way or for a purpose described in s. 292.11 (9) (e) 1m., if all of the following occur at any time before or after the date of acquisition:

SB45,1182,11 (a) An environmental investigation of the property is conducted that is approved by the department and that identifies any hazardous waste discharges that occurred on the property.

SB45,1182,16 (b) The hazardous waste discharges identified by the investigation under par. (a) are cleaned up by restoring the environment to the extent practicable with respect to the discharges and minimizing the harmful effects from the discharges in accordance with rules promulgated by the department and any contract entered into under those rules.

SB45,1182,20 (c) The local governmental unit obtains a certificate of completion from the department stating that the property has been satisfactorily restored to the extent practicable with respect to the hazardous waste discharges and that the harmful effects from the discharges have been minimized.

SB45,1182,23 (d) The local governmental unit maintains and monitors the property as required under rules promulgated by the department and any contract entered into under those rules.

SB45,1182,25 (e) The local governmental unit does not engage in activities that are inconsistent with the maintenance of the property.

SB45,1183,5 (f) The local governmental unit has not obtained the certification under par. (c) by fraud or misrepresentation, by the knowing failure to disclose material information or under circumstances in which the local governmental unit knew or should have known about more discharges of hazardous waste than were revealed by the investigation conducted under par. (a).

SB45,1183,7 (g) The local governmental unit did not cause the discharge of any hazardous waste identified on the property.

SB45,1183,8 (3) Applicability. Subsection (2) does not apply to any of the following:

SB45,1183,10 (a) A hazardous waste treatment, storage or disposal facility that first begins operation after the date on which the local governmental unit acquired the property.

SB45,1183,14 (b) A licensed hazardous waste treatment, storage or disposal facility operated on the property before the date on which the local governmental unit acquired the property and that is operated after the date on which the local governmental unit acquired the property.

SB45,1183,17 (c) Any hazardous waste disposal facility that has been issued a license under s. 144.441 (2), 1995 stats., or s. 289.41 (1m), or rules promulgated under those sections, for a period of long-term care following closure of the facility.

SB45, s. 2611 Section 2611. 292.25 of the statutes is created to read:

SB45,1183,20 292.25 Report on impact of exemptions from liability. (1) The department shall biennially determine all of the following:

SB45,1183,22 (a) The number of sites for which a person is seeking to qualify for an exemption under s. 292.15.

SB45,1183,24 (b) The number of sites for which a certificate of completion was issued under s. 292.15.

SB45,1184,3 (c) The number of sites for which a certificate of completion was issued under s. 292.15 at which it is discovered that the cleanup failed or at which additional hazardous substances are found after the certificate of completion was issued.

SB45,1184,6 (d) The number of sites described in par. (b) at which the department has determined that it is necessary to conduct remedial action using moneys from the environmental fund and the estimated costs of performing that remedial action.

SB45,1184,8 (e) The number of sites for which a claim was made against an insurance policy required under s. 292.15.

SB45,1184,11 (2) No later than September 15 of each even-numbered year, the department shall submit a report describing its determinations under sub. (1) to the legislature under s. 13.172 (2), to the governor and to the department of administration.

SB45,1184,13 (3) The department may require a person to provide information necessary for the department to make the determinations under sub. (1).

SB45, s. 2612 Section 2612. 292.33 of the statutes is created to read:

SB45,1184,17 292.33 Local government cost recovery cause of action. (1) Definition. In this section "local governmental unit" has the meaning given in s. 292.11 (9) (e) 1.

SB45,1184,21 (2) Cause of action. Except as provided in sub. (6), a local governmental unit may recover costs as provided in sub. (4) from a responsible person described in sub. (3) if the costs are incurred in connection with a property acquired as provided in s. 292.11 (9) (e) 1m. on which a hazardous substance has been discharged.

SB45,1184,24 (3) Responsible persons. (a) Except as provided in par. (b), a local governmental unit may recover costs in an action under this section from any of the following:

SB45,1185,3 1. A person who, at the time that the local governmental unit acquired the property, possessed or controlled the hazardous substance that was discharged on the property.

SB45,1185,5 2. A person who caused the discharge of the hazardous substance on the property.

SB45,1185,9 (b) A local governmental unit may not recover costs in an action under sub. (2) from a person described in par. (a) if the person qualifies for an exemption under s. 292.11 (9) (e), 292.13, 292.15, 292.16, 292.19 or 292.21 with respect to the discharge that is the subject of the action.

SB45,1185,12 (4) Recoverable costs. (a) Except as provided in par. (b), in an action under this section a local governmental unit may recover the reasonable and necessary costs that it incurs for all of the following:

SB45,1185,14 1. Investigating environmental contamination on the property and planning remedial activities described in subd. 2.

SB45,1185,16 2. Conducting remedial activities to restore the property for its intended future use.

SB45,1185,19 3. Administering the activities under subds. 1. and 2. and bringing the action under this section, including costs, disbursements, engineering fees and, notwithstanding s. 814.04 (1), reasonable attorney fees.

SB45,1185,21 (b) The costs determined under par. (a) shall be reduced by the fair market value of the property after completion of the activities under par. (a) 2.

SB45,1185,24 (c) Recoverable costs under this subsection may not be reduced by the amount of any state or federal moneys received by the local governmental unit for any of the activities under par. (a).

SB45,1186,7 (5) Repaying state assistance. If a local governmental unit that recovers costs under this section received money from this state, other than under s. 292.11 (7) or 292.31 (1), (3) or (7), for any of the activities under sub. (4) (a), the local governmental unit shall reimburse to the state an amount that bears the same proportion to the total amount recovered under this section as the amount received from the state, other than under s. 292.11 (7) or 292.31 (1), (3) or (7), bears to the total costs under sub. (4) (a) adjusted as provided in sub. (4) (b).

SB45,1186,13 (6) Exception. A local governmental unit may not recover costs under this section for remedial activities conducted on a property or portion of a property with respect to a discharge after the department of natural resources, the department of commerce or the department of agriculture, trade and consumer protection has indicated that no further remedial activities are necessary on the property or portion of the property with respect to the discharge.

SB45,1186,16 (7) Limitation of action. An action under this section shall be commenced within 6 years after the date that the local governmental unit completes the activities under sub. (4) (a) 2. or be barred.

SB45, s. 2613 Section 2613. 292.57 of the statutes is created to read: