AB999: Bill Text

LRB-4532/1

RCT&MES:cjs:pg

2005 - 2006 LEGISLATURE

2005 Assembly BILL 999

February 7, 2006 - Introduced by Representatives Gunderson, Freese, Staskunas, Albers, Fields, Hines, Jeskewitz, Musser, Nischke, Ott, Owens, Petrowski, Townsend, Vos and Zepnick, cosponsored by Senators Roessler, Kedzie, Cowles, Schultz, Darling, Grothman, Harsdorf and Wirch. Referred to Committee on Natural Resources.

AB999,2,8 An Act to repeal 292.15 (2) (at), 292.15 (2) (d), 292.15 (6) (b), 292.31 (1) (a) 2., 292.31 (1) (c), 292.31 (3) (cm) and 292.31 (5); to renumber 292.15 (6) (a); to renumber and amend 66.1106 (13); to amend 66.1106 (1) (c), 66.1106 (1) (e), 66.1106 (1) (f), 66.1106 (1) (g), 66.1106 (1) (i), 66.1106 (1) (k), 66.1106 (2) (a), 66.1106 (4) (intro.), 66.1106 (4) (b), 66.1106 (7) (a), 66.1106 (7) (d) 1., 66.1106 (9), 66.1106 (10) (title), 66.1106 (10) (a), 66.1106 (10) (b), 66.1106 (13) (title), 74.23 (1) (b), 74.25 (1) (b) 1., 74.25 (1) (b) 2., 74.30 (1) (i), 74.30 (1) (j), 74.30 (2) (b), 79.095 (1) (c), 79.095 (2) (b), 227.01 (13) (zc), 234.01 (4n) (a) 3m. a., 292.15 (2) (c), 292.15 (2) (e), 292.15 (3), 292.21 (1) (c) 2. g., 292.31 (1) (title), 292.31 (1) (a) 3., 292.31 (1) (a) 4., 292.31 (1) (b) 1., 292.31 (2) (intro.), 292.31 (2) (a), 292.31 (3) (c), 292.31 (3) (d), 292.31 (4), 292.57 (title) and 292.57 (2) (a); to repeal and recreate 292.31 (1) (a) (title) and 292.31 (1) (a) 1.; and to create 66.1106 (1) (fm), 66.1106 (1) (je), 66.1106 (1m), 66.1106 (10) (c), 66.1106 (10) (d), 66.1106 (10) (e), 66.1106 (11), 66.1106 (12), 66.1106 (13) (b), 292.12, 292.15 (2) (ae) 7., 292.15 (2) (b) 5., 292.15 (7) (d), 292.15 (7) (e) and 292.23 of the statutes; relating to: identification and cleanup of properties that are environmentally contaminated; properties with residual contamination; modifying the environmental remediation tax incremental financing program; exempting local governmental units from solid waste management standards with respect to certain properties; the liability of certain persons for environmental contamination on property on which a cleanup has been conducted; and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Property with residual contamination after a cleanup

Current law generally requires a person who possess or controls a hazardous substance that is discharged into the environment, including the person who owns the property on which the discharge occurred, or who causes a discharge to restore the environment to the extent practicable and to minimize the harmful effects of the discharge on the environment. The Department of Natural Resources (DNR) usually has jurisdiction over the cleanup of hazardous substance discharges. The Department of Commerce has jurisdiction over the cleanup of some petroleum product discharges and the Department of Agriculture, Trade and Consumer Protection (DATCP) has jurisdiction over the cleanup of some discharges of agricultural chemicals.

This bill authorizes the agency with administrative authority over the site of a discharge of a hazardous substance (DNR, the Department of Commerce, or DATCP, depending on the type of site) to impose requirements as a condition of approving a cleanup if residual contamination remains on the site. The agency may do any of the following:

1. Require maintenance of an engineering control, such as a soil cover, that is needed to prevent or minimize the spread of the contamination.

2. Require an investigation and the performance of any needed cleanup if a building is removed that prevented a complete investigation or cleanup of contamination on the site.

3. Impose limitations or other conditions related to property to ensure the continued protection of public health, safety, and welfare and the environment and to promote economic development.

The bill requires DNR to maintain a database of sites for which a cleanup has been approved but that have residual contamination. DNR must list each of those sites in the database and must include any requirements imposed by the agency with jurisdiction over a site. A person requesting approval of a cleanup must pay a fee to have the site listed in the database.

The bill also requires a person who applies for approval of a cleanup that leaves residual contamination on property that is not owned by the person to notify the owner of the property about the residual contamination.

A person who violates the requirements imposed under this bill is subject to a civil forfeiture of $10 to $5,000 for each day of violation.

Environmental remediation tax incremental financing

This bill modifies the environmental remediation tax incremental financing program. Under current law, the environmental remediation tax incremental financing program permits a city, village, town, or county (political subdivision) to defray the costs of remediating contaminated property that is owned by the political subdivision. The mechanism for financing costs that are eligible for remediation is very similar to the mechanism under the tax incremental financing (TIF) program. If the remediated property is transferred to another person and is then subject to property taxation, environmental remediation tax incremental financing may be used to allocate some of the property taxes that are levied on the property to the political subdivision to pay for the costs of remediation.

A political subdivision that has incurred "eligible costs" to remediate environmental pollution on a parcel of property may apply to the Department of Revenue (DOR) to certify the "environmental remediation tax incremental base" of the parcel. DOR is required to certify the environmental remediation tax incremental base if the political subdivision submits to DOR all of the following: 1) a statement that the political subdivision has incurred some eligible costs, together with a detailed proposed remedial action plan approved by DNR that contains cost estimates for anticipated eligible costs, a schedule for the design and implementation that is needed to complete the remediation, and certification from DNR that it has approved the site investigation report that relates to the parcel; 2) a statement that all taxing jurisdictions with authority to levy general property taxes on the parcel of property have been notified that the political subdivision intends to recover its environmental remediation costs by using an "environmental remediation tax increment"; and 3) a statement that the political subdivision has attempted to recover its environmental remediation costs from the person who is responsible for the environmental pollution that is being remediated.

This bill makes technical changes to the environmental remediation tax incremental financing program. These changes include the following:

1. Creating a definition of "environmental remediation tax incremental district" (ERTID) that is somewhat similar to the definition of "tax incremental district" under the TIF program and creating a definition of "project expenditures", which means "eligible costs" and other costs incurred by a political subdivision in creating an operating an ERTID.

2. Making changes to the definitions of "environmental remediation tax increment," "environmental remediation tax incremental base," "period of certification," and "taxable property." The bill increases the period of certification, and an ERTID's maximum life, from 16 to 23 years.

3. Adding to the definition of "eligible costs" the cancellation of unrecovered delinquent property taxes.

4. Creating procedures for the termination of an ERTID that are similar to the termination procedures for a tax incremental district under the TIF program.

5. Prohibiting DOR from certifying the environmental remediation tax incremental base of an ERTID if a political subdivision does not send DOR certain required forms within 180 days of the ERTID's termination.

6. Requiring that the final report under the program include an independent certified financial audit.

7. Requiring that DOR be provided with a final accounting of the ERTID's project expenditures and the final amount of eligible costs that have been paid for an ERTID.

8. Modifying certain provisions of the program to apply to contiguous parcels of property or land, as well as a parcel of property or land.

9. Authorizing DOR to charge a $1,000 fee to determine or redetermine the tax incremental base of an ERTID.

Also under the bill, if a city or village annexes property from a town that is using an ERTID to remediate environmental pollution on all or part of the territory that is annexed, the city or village must pay to the town that portion of the eligible costs that are attributable to the annexed territory. The city or village, and the town, must negotiate an agreement on the amount that must be paid.

The ERTID provisions in the bill take effect on October 1, 2006, and first apply to an ERTID that is in existence or that is created on that date.

Local governmental exemption from solid waste management standards

Current law generally requires a person who possesses or controls a hazardous substance that is discharged or who causes the discharge of a hazardous substance to restore the environment to the extent practicable and to minimize the harmful effects of the discharge on the environment. Current law generally exempts a local governmental unit from these clean-up requirements with respect to hazardous substance discharges on property acquired in specified ways, such as through tax delinquency proceedings and condemnation.

This bill provides that a local governmental unit is exempt from solid waste management standards and other legal requirements relating to solid waste for a property that was acquired in a way that would qualify for the exemption from clean-up requirements, with a number of exceptions and conditions. The exemption from solid waste requirements does not apply to a solid waste facility that was operated by the local governmental unit or owned by the local governmental unit while it was operated or to landfills that were once licensed by DNR. The bill requires a local governmental unit to obtain permission from DNR for any construction on the property and requires the local governmental unit to maintain any health or safety system on the property, such as a system to collect landfill gas, that DNR required before the local governmental unit acquired the property.

Voluntary party liability exemption

Under current law, a person, called a voluntary party, who applies for a liability exemption is exempt from absolute requirements to restore the environment and minimize the harmful effects of a discharge, and from the requirements of other laws relating to hazardous substances, if an environmental investigation of the property is conducted, the property is cleaned up, DNR certifies that the cleanup restored the environment and minimized the harmful effects of the discharge, and the voluntary party maintains and monitors the property as required by DNR. Also, under current law, the voluntary party liability exemption is available even if the cleanup does not get rid of a substance in groundwater as long as DNR determines that the substance will naturally break down (attenuate) and, if required by DNR, the voluntary party obtains insurance to cover the costs of cleanup in case natural attenuation fails.

Under current law, the voluntary party liability exemption is not available for most sites at which solid waste was disposed of. This bill narrows that exemption so that only solid waste facilities that were once licensed by DNR are excluded from the exemption.

In addition this bill provides that, to qualify for the liability exemption for property on which DNR determines that natural attenuation will successfully complete the cleanup, a voluntary party who owns the property must provide access to the property for the purpose of determining whether natural attenuation has failed and, if so, to allow someone else to clean up the property.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB999, s. 1 Section 1. 66.1106 (1) (c) of the statutes is amended to read:

AB999,6,11 66.1106 (1) (c) "Eligible costs" means capital costs, financing costs, and administrative and professional service costs, incurred or estimated to be incurred by a political subdivision, for the investigation, removal, containment , or monitoring of, or the restoration of soil, air, surface water, sediments, or groundwater affected by, environmental pollution, including monitoring costs incurred within 2 years after the date on which the department of natural resources certifies that environmental pollution on the property has been remediated, cancellation of delinquent taxes if the political subdivision demonstrates that it has not already recovered such costs by any other means, property acquisition costs, demolition costs including asbestos removal, and removing and disposing of underground storage tanks or abandoned containers, as defined in s. 292.41 (1), except that for. For any parcel of land "eligible costs" shall be reduced by any amounts received from persons responsible for the discharge, as defined in s. 292.01 (3), of a hazardous substance on the property to pay for the costs of remediating environmental pollution on the property, by any amounts received, or reasonably expected by the political subdivision to be received, from a local, state, or federal program for the remediation of contamination in the district that do not require reimbursement or repayment, and by the amount of net gain from the sale of the property by the political subdivision. "Eligible costs" associated with groundwater affected by environmental pollution include investigation and remediation costs for groundwater that is located in, and extends beyond, the property that is being remediated.

AB999, s. 2 Section 2. 66.1106 (1) (e) of the statutes is amended to read:

AB999,6,21 66.1106 (1) (e) "Environmental remediation tax increment" means that amount obtained by multiplying the total city, county, school, and other local general property taxes levied on a parcel of real property that is certified under this section taxable property in a year by a fraction having as a numerator the environmental remediation value increment for that year for that parcel in such district and as a denominator that year's equalized value of that parcel taxable property. In any year, an environmental remediation tax increment is "positive" if the environmental remediation value increment is positive; it is "negative" if the environmental remediation value increment is negative.

AB999, s. 3 Section 3. 66.1106 (1) (f) of the statutes is amended to read:

AB999,7,4 66.1106 (1) (f) "Environmental remediation tax incremental base" means the aggregate value, as equalized by the department, of a parcel of real taxable property that is certified under this section as of the January 1 preceding the date on which the department of natural resources issues a certificate certifying that environmental pollution on the property has been remediated in accordance with rules promulgated by the department of natural resources environmental remediation tax incremental district is created, as determined under sub. (1m) (b).

AB999, s. 4 Section 4. 66.1106 (1) (fm) of the statutes is created to read:

AB999,7,16 66.1106 (1) (fm) "Environmental remediation tax incremental district" means a contiguous geographic area within a political subdivision defined and created by resolution of the governing body of the political subdivision consisting solely of whole units of property as are assessed for general property tax purposes, other than railroad rights-of-way, rivers, or highways. Railroad rights-of-way, rivers, or highways may be included in an environmental remediation tax incremental district only if they are continuously bounded on either side, or on both sides, by whole units of property as are assessed for general property tax purposes which are in the environmental remediation tax incremental district. "Environmental remediation tax incremental district" does not include any area identified as a wetland on a map under s. 23.32.

AB999, s. 5 Section 5. 66.1106 (1) (g) of the statutes is amended to read:

AB999,7,24 66.1106 (1) (g) "Environmental remediation value increment" means the equalized value of a parcel of real taxable property that is certified under this section minus the environmental remediation tax incremental base. In any year, the environmental remediation value increment is "positive" if the environmental remediation tax incremental base of the parcel of taxable property is less than the aggregate value of the parcel of taxable property as equalized by the department; it is "negative" if that base exceeds that aggregate value.

AB999, s. 6 Section 6. 66.1106 (1) (i) of the statutes is amended to read:

AB999,8,4 66.1106 (1) (i) "Period of certification" means a period of not more than 16 23 years beginning after the department certifies the environmental remediation tax incremental base of a parcel of property under sub. (4) or a period before all eligible costs have been paid, whichever occurs first.

AB999, s. 7 Section 7. 66.1106 (1) (je) of the statutes is created to read:

AB999,8,8 66.1106 (1) (je) "Project expenditures" means eligible costs and other costs incurred by a political subdivision to create and operate an environmental remediation tax incremental district.

AB999, s. 8 Section 8. 66.1106 (1) (k) of the statutes is amended to read:

AB999,8,11 66.1106 (1) (k) "Taxable property" means all real and personal taxable property located in an environmental remediation tax incremental district.

AB999, s. 9 Section 9. 66.1106 (1m) of the statutes is created to read:

AB999,8,15 66.1106 (1m) Creation of environmental remediation tax incremental districts. In order to implement the provisions of this section, the governing body of the political subdivision shall adopt a resolution which does all of the following:

AB999,8,18 (a) Describes the boundaries of an environmental remediation tax incremental district with sufficient definiteness to identify with ordinary and reasonable certainty the territory included within the district.

AB999,8,21 (b) Creates the district as of January 1 of the same calendar year for a resolution adopted before October 1 or as of January 1 of the next subsequent calendar year for a resolution adopted after September 30.

AB999, s. 10 Section 10. 66.1106 (2) (a) of the statutes is amended to read:

AB999,9,9 66.1106 (2) (a) A political subdivision that develops, and whose governing body approves, a written proposal to remediate environmental pollution may use an environmental remediation tax increment to pay the eligible costs of remediating environmental pollution on contiguous parcels of property that are located in an environmental remediation tax incremental district within the political subdivision and that are not part of a tax incremental district created under s. 66.1105, as provided in this section, except that a political subdivision may use an environmental remediation tax increment to pay the cost of remediating environmental pollution of groundwater without regard to whether the property above the groundwater is owned by the political subdivision. No political subdivision may submit an application to the department under sub. (4) until the joint review board approves the political subdivision's written proposal under sub. (3).

AB999, s. 11 Section 11. 66.1106 (4) (intro.) of the statutes is amended to read:

AB999,9,20 66.1106 (4) Certification. (intro.) Upon written application to the department of revenue by the clerk of a political subdivision on or before April 1 of the year following the year in which the certification described in par. (a) is received from the department of natural resources December 31 of the same calendar year for an environmental remediation tax incremental district created before October, as determined under sub. (1m) (b), or December 31 of the subsequent calendar year for an environmental remediation tax incremental district created after September 30, the department of revenue shall certify to the clerk of the political subdivision the environmental remediation tax incremental base of a parcel of real property if all of the following apply:

AB999, s. 12 Section 12. 66.1106 (4) (b) of the statutes is amended to read:

AB999,9,24 66.1106 (4) (b) The political subdivision submits a statement that all taxing jurisdictions with the authority to levy general property taxes on the parcel or contiguous parcels of property have been notified that the political subdivision intends to recover the costs of remediating environmental pollution on the property and have been provided a statement of the estimated costs to be recovered.

AB999, s. 13 Section 13. 66.1106 (7) (a) of the statutes is amended to read:

AB999,10,9 66.1106 (7) (a) Subject to pars. (b), (c) and (d), the department shall annually authorize the positive environmental remediation tax increment with respect to a parcel or contiguous parcels of property during the period of certification to the political subdivision that incurred the costs to remediate environmental pollution on the property, except that an authorization granted under this paragraph does not apply after the department receives the notice described under sub. (10) (b).

AB999, s. 14 Section 14. 66.1106 (7) (d) 1. of the statutes is amended to read:

AB999,10,17 66.1106 (7) (d) 1. The department may not authorize a positive environmental remediation tax increment under par. (a) to pay otherwise eligible costs that are incurred by the political subdivision after the department of natural resources certifies to the department of revenue that environmental pollution on the parcel or contiguous parcels of property has been remediated unless the costs are associated with activities, as determined by the department of natural resources, that are necessary to close the site described in the site investigation report.

AB999, s. 15 Section 15. 66.1106 (9) of the statutes is amended to read:

AB999,11,4 66.1106 (9) Separate accounting required. An environmental remediation tax increment received with respect to a parcel or contiguous parcels of land that is subject to this section shall be deposited in a separate fund by the treasurer of the political subdivision. No money may be paid out of the fund except to pay eligible costs for a parcel or contiguous parcels of land, or to reimburse the political subdivision for such costs or to satisfy claims of holders of bonds or notes issued to pay eligible costs. If an environmental remediation tax increment that has been collected with respect to a parcel of land remains in the fund after the period of certification has expired, it shall be paid to the treasurers of the taxing jurisdictions in which the parcel is located in proportion to the relative share of those taxing jurisdictions in the most recent levy of general property taxes on the parcel.

AB999, s. 16 Section 16. 66.1106 (10) (title) of the statutes is amended to read:

AB999,11,6 66.1106 (10) (title) Reporting requirements ; notice of district termination.