1995 Wisconsin Act 227

291.31 Variance. If the department determines that the application for or compliance with any license required under sub. (1) or (2) s. 291.23 or 291.25 would cause undue or unreasonable hardship to any person, the department may issue a variance from the requirements of this section s. 291.23, 291.25, 291.29 or 291.87 but the variance may not result in undue harm to public health or the environment and the duration of the variance may not exceed 5 years. The department may renew or extend a variance only after opportunity for a public hearing.

227,685 Section 685 . 144.64 (4) (title) of the statutes is repealed.

227,686 Section 686 . 144.64 (4) (a) of the statutes is renumbered 291.05 (7), and 291.05 (7) (a) and (b), as renumbered, are amended to read:

291.05 (7) (a) The department shall promulgate by rule a graduated schedule of reasonable license, plan approval and review fees to be charged for hazardous waste activities under this section ss. 291.23, 291.25, 291.29, 291.31 and 291.87.

(b) Hazardous waste activities under this section ss. 291.23, 291.25, 291.29, 291.31 and 291.87 consist of reviewing feasibility reports, plans of operation, closure plans and license applications, issuing determinations of feasibility, plan of operation approvals, operating licenses, interim licenses and variances, inspecting construction projects, approving closure plans and taking other actions in administering this section ss. 291.23, 291.25, 291.29, 291.31 and 291.87.

227,687 Section 687 . 144.64 (4) (b) of the statutes is renumbered 291.33 and amended to read:

291.33 (title) Tonnage fees. A person who operates a licensed hazardous waste disposal facility shall pay the fees imposed and specified under s. 144.441 (3) and (4) 289.62.

227,688 Section 688 . 144.645 of the statutes is renumbered 291.87 and 291.87, (1) to (3), as renumbered, are amended to read:

291.87 (1) If the department proposes to deny, suspend or revoke a license for the reasons stated under s. 144.64 (2) (e) 2. to 6. sub. (1m) (b) to (f), the department shall comply with the procedures specified under this section.

(2) If the department determines that a person licensed under s. 144.64 (2) 291.25 failed to comply with the rules promulgated under ss. 144.60 to 144.74 this chapter or failed to comply with the approved plan of operation under s. 144.44 (3) 289.30, the department shall give written notice to the person. The notice shall state that the department proposes to deny, suspend or revoke the license and shall inform the person that a hearing may be requested within 45 days after the notice is issued.

(3) If the licensee requests a hearing within 45 days after receiving the notice under sub. (2), the department shall schedule a hearing and give notice of the hearing by publishing a class 1 notice, under ch. 985, at least 45 days prior to the date scheduled for the hearing. If the licensee requests a contested case hearing and if the conditions specified under s. 227.42 (1) (a) to (d) are satisfied, the department shall conduct the hearing as a contested case; otherwise, the department shall conduct the hearing as an informational hearing. There is no statutory right to any hearing concerning the denial, suspension or revocation of a license for the reasons stated under s. 144.64 (2) (e) 2. to 6. sub. (1m) (b) to (f) except as provided under this subsection.

227,689 Section 689 . 144.68 of the statutes is renumbered 291.27, and 291.27 (2), as renumbered, is amended to read:

291.27 (2) This section does not apply to hazardous waste disposal facilities granted an interim license under s. 144.64 (2) (c) 291.25 (4) or a variance under s. 144.64 (3) 291.31 or a facility subject to s. 144.64 (2m) 291.29.

227,690 Section 690 . 144.69 (title) of the statutes is renumbered 291.91 (title).

227,691 Section 691 . 144.69 of the statutes is renumbered 291.91 (2).

227,692 Section 692 . 144.70 of the statutes is renumbered 291.15, and 291.15 (1) and (2) (a) and (d), as renumbered, are amended to read:

291.15 (1) Records. Except as provided under sub. (2), any records or other information furnished to or obtained by the department in the administration of ss. 144.60 to 144.74 this chapter are public records subject to s. 19.21.

(2) (a) Application. An owner or operator of a hazardous waste facility may seek confidential treatment of any records or other information furnished to or obtained by the department in the administration of ss. 144.60 to 144.74 this chapter.

(d) Use of confidential records. Except as provided under par. (c) and this paragraph the department or the department of justice may use records and other information granted confidential status under this subsection only in the administration and enforcement of ss. 144.60 to 144.74 this chapter. The department or the department of justice may release for general distribution records and other information granted confidential status under this subsection if the owner or operator expressly agrees to the release. The department or the department of justice may release on a limited basis records and other information granted confidential status under this subsection if the department or the department of justice is directed to take this action by a judge or hearing examiner under an order which protects the confidentiality of the records or other information. The department or the department of justice may release to the U.S. environmental protection agency or its authorized representative records and other information granted confidential status under this subsection if the department or the department of justice includes in each release of records or other information a request to the U.S. environmental protection agency or its authorized representative to protect the confidentiality of the records or other information.

227,693 Section 693 . 144.72 of the statutes is renumbered 291.85, and 291.85 (1) (intro.), as renumbered, is amended to read:

291.85 (1) Notice required. (intro.) If the department receives evidence that the past or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste may present an imminent and substantial danger to health or the environment, the department shall do all of the following:

Note: This provision is duplicated for solid waste in new s. 289.94.

227,694 Section 694 . 144.725 of the statutes is renumbered 291.89, and 291.89 (intro.) and (2) (b), as renumbered, are amended to read:

291.89 Review of alleged violations. (intro.) Any 6 or more citizens or any municipality may petition for review of an alleged violation of ss. 144.60 to 144.74 this chapter or any rule promulgated or special order, plan approval, license or any term or condition of a license issued under those sections this chapter in the following manner:

(2) (b) Initiate action under s. 144.73 291.95.

227,695 Section 695 . 144.73 of the statutes is renumbered 291.95, and 291.95 (1) (intro.) and (c) and (3), as renumbered, are amended to read:

291.95 (1) Department action. (intro.) If the department determines that any person is in violation of any requirement of ss. 144.60 to 144.74 this chapter or any rule promulgated or special order, plan approval or term or condition of a license or variance issued under those sections this chapter, the department may do one or more of the following:

(c) Refer the matter to the department of justice for enforcement under s. 144.98 299.95.

(3) Assistance of district attorney. In any criminal action commenced under s. 144.74 291.97, the department of justice may request the assistance of the district attorney of any county in which the violation occurred, and the district attorney shall provide the requested assistance.

227,696 Section 696 . 144.735 of the statutes is renumbered 291.37, and 291.37 (1) (c) and (2) (a), as renumbered, are amended to read:

291.37 (1) (c) “Solid waste management unit" means any unit designed or used for the storage, treatment or disposal of solid waste or hazardous waste or both, which is located in a hazardous waste facility required to have a license under s. 144.64 (2) 291.25 or a permit under 42 USC 6925 or required to comply with s. 144.64 (2m) 291.29. “Solid waste management unit" includes but is not limited to a container, tank, surface impoundment, disposal facility, incinerator, wastepile, landfill, underground injection well, land treatment unit or wastewater treatment facility.

(2) (a) If the department determines that a release from a solid waste management unit has occurred the department may, except as provided under par. (b), require the owner or operator of the facility containing the solid waste management unit to take corrective action, including corrective action beyond the facility, if necessary. The department may require an owner or operator to take corrective action regardless of when the hazardous waste or hazardous constituent released was placed in the solid waste management unit. The department may require corrective action by means of a special order under this paragraph or as a condition of licensing or plan approval under s. 144.64 291.25 or 291.29. An order or condition under this paragraph shall state, with reasonable specificity, the nature of the corrective action required, shall include a description of the property on which the corrective action is to be taken and shall specify a period for achieving compliance and a period for the owner or operator to establish proof of financial responsibility for the cost of corrective action.

227,697 Section 697 . 144.737 of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 291.13.

227,698 Section 698 . 144.74 of the statutes is renumbered 291.97, and 291.97 (1) and (2) (a) 1. and 2. and (b) 1. and 2., as renumbered, are amended to read:

291.97 (1) Civil penalties. Any person who violates any provision of ss. 144.60 to 144.735 this chapter or any rule promulgated or special order, plan approval or term or condition of a license or variance issued under those sections this chapter shall forfeit not less than $100 nor more than $25,000 for each violation. Each day of a continuing violation is a separate offense.

(2) (a) 1. In connection with an application, label, manifest, record, report, license or other document relating to ss. 144.60 to 144.735 this chapter, makes an untrue statement of a material fact or fails to state a material fact with the result that the statements made in the document are misleading.

2. Destroys, alters, conceals or fails to submit a record required to be maintained or submitted under ss. 144.60 to 144.735 this chapter or a rule promulgated or special order, plan approval or term or condition of a license or variance issued under any of those sections this chapter.

(b) 1. Transports any hazardous waste to a facility or site that does not have a license as required under s. 144.64 291.25.

2. Stores, treats, transports or disposes of any hazardous waste without a license required under s. 144.64 291.23 or 291.25 or in violation of a rule promulgated or special order, plan approval or term or condition of a license or variance issued under that section s. 291.23, 291.25, 291.29, 291.31 or 291.87.

227,699 Section 699 . 144.75 of the statutes is renumbered 299.41.

227,700 Section 700 . 144.76 (title) of the statutes is renumbered 292.11 (title).

227,701 Section 701 . 144.76 (1) (intro.) of the statutes is repealed.

227,702 Section 702 . 144.76 (1) (a), (b), (bm), (c) and (d) of the statutes are renumbered 292.01 (3), (8), (9), (15) and (16).

227,703 Section 703. 144.76 (2) of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 292.11 (2).

227,704 Section 704 . 144.76 (3) to (5) of the statutes are renumbered 292.11 (3) to (5).

227,705 Section 705 . 144.76 (6) and (7) of the statutes, as affected by 1995 Wisconsin Act 27, are renumbered 292.11 (6) and (7).

227,706 Section 706 . 144.76 (8) of the statutes is renumbered 292.11 (8).

227,707 Section 707 . 144.76 (9) of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 292.11 (9), and 292.11 (9) (a) and (c), as renumbered, are amended to read:

292.11 (9) (a) Any person holding a valid permit under ch. 147 283 is exempted from the reporting and penalty requirements of this section with respect to substances discharged within the limits authorized by the permit.

(c) Any person discharging in conformity with a permit or program approved under this chapter chs. 281, 285 or 289 to 299 is exempted from the reporting and penalty requirements of this section.

227,708 Section 708 . 144.76 (9m) of the statutes is renumbered 292.21 (1), and 292.21 (1) (a) 3., (b) 2., (c) 1. (intro.) and c., 2. g. and 3. and (d) (intro.), as renumbered, are amended to read:

292.21 (1) (a) 3. The department may, by rule, designate as lending activities other activities, in addition to those listed in sub. (1) (bm) s. 292.01 (9), that are related to undertaking appropriate actions to preserve and protect property or are related to the advancing of funds or credit or the collecting of funds.

(b) 2. The lender notifies the department, in accordance with sub. s. 292.11 (2), of any discharge of a hazardous substance identified as the result of activities described in this paragraph.

(c) 1. (intro.) A lender that acquires title to, or possession or control of, real property through enforcement of a security interest is not subject to subs. s. 292.11 (3), (4) and (7) (b) and (c) and is not liable under this chapter or chs. 281, 285, 289, 291 or 293 to 299 for a discharge of a hazardous substance on that real property if all of the following conditions are satisfied:

c. The lender notifies the department, in accordance with sub. s. 292.11 (2), of any known discharge of a hazardous substance.

2. g. A review to determine if the real property is listed in any of the written compilations of sites or facilities considered to pose a threat to human health or the environment, including the national priorities list under 42 USC 9605 (a) (8) (B); the federal environmental protection agency's information system for the comprehensive environmental response, compensation and liability act, 42 USC 9601 to 9675, (CERCLIS); the department's most recent Wisconsin remedial response site evaluation report, including the inventory of sites or facilities which may cause or threaten to cause environmental pollution required by s. 144.442 (4) 292.31 (1) (a); and the department's registry of abandoned landfills.

3. An environmental assessment filed under subd. 1. d. does not constitute notice required under sub. s. 292.11 (2).

(d) Personal property and fixtures. (intro.) A lender that enforces a security interest in personal property or fixtures at a particular location, filed under ch. 409, and that does not acquire title to, or possession or control of, the real property at that location, except for purposes of protecting and removing personal property or fixtures, is not subject to subs. s. 292.11 (3), (4) and (7) (b) and (c) and is not liable under this chapter for a discharge of a hazardous substance on that real property if all of the following conditions are satisfied:

227,709 Section 709 . 144.76 (9s) of the statutes is renumbered 292.21 (2), and 292.21 (2) (a) 5., (b) 2. and (c), as renumbered, are amended to read:

292.21 (2) (a) 5. The representative does not knowingly, wilfully or recklessly fail to notify the department in accordance with sub. s. 292.11 (2) of the discharge of a hazardous substance.

(b) 2. A representative that fails to act in good faith to cause the trust, estate or similar entity for which the representative is acting as a representative to take the actions described in sub. s. 292.11 (3) or to reimburse the department under sub. s. 292.11 (7) (b). It is not a lack of good faith for a representative to resign as representative, to seek a court order directing the representative to act or refrain from acting or to challenge the department by any legal means.

(c) This subsection does not limit the responsibility of any trust, estate or similar entity to take the actions required under sub. s. 292.11 (2), (3), (4) or (7) (c) or any other provision of this chapter or to reimburse the department under sub. s. 292.11 (7) (b).

Note: Current s. 144.76 (9m) and (9s) contains references to “this chapter". This cross-reference is unnecessarily broad. It is apparent from the contexts that the references are to the statutes concerning hazardous substance spills. Therefore, the references have not been changed.

227,710 Section 710 . 144.76 (10), (11) and (12) of the statutes are renumbered 292.11 (10), (11) and (12), and 292.11 (11) and (12) (a), as renumbered, are amended to read:

292.11 (11) Enforcement exclusions. (a) Any person proceeded against for a violation of this section shall not be subject to penalties under s. 144.74 291.97 for the same act or omission.

(b) Any person who discharges a hazardous substance, where the responsibilities for such a discharge are prescribed by statute other than ss. 144.60 to 144.74 ch. 291, shall be subject to the penalty under either this section or the other section but not both.

(12) (a) Action by the department under this section is not subject to s. 144.442 (4) to (9) 292.31.

227,711 Section 711. 144.76 (13) of the statutes is renumbered 292.81, and 292.81 (1), (2) (a) (intro.), 1. and 2., (b), (c) and (d), (3) and (4) (a), (b) (intro.) and (c) to (e), as renumbered, are amended to read:

292.81 (1) In this subsection section, “valid prior lien" means a purchase money real estate mortgage that is recorded before the lien is filed under this paragraph section, including any extension or refinancing of that purchase money mortgage, or an equivalent security interest, or a 2nd or subsequent mortgage for home improvement or repair that is recorded before the lien is filed under this paragraph section, including any extension or refinancing of that 2nd or subsequent mortgage.

(2) (a) (intro.) Before incurring expenses under this section or s. 144.442 (4), (6) or (8) s. 292.11, 292.31 (1), (3) or (7) or 144.77 292.41 (4) with respect to a property, the department shall provide to the current owner of the property and to any mortgagees of record a notice containing all of the following:

1. A brief description of the property for which the department expects to incur expenses under this section or s. 144.442 (4), (6) or (8) s. 292.11, 292.31 (1), (3) or (7) or 144.77 292.41 (4).

2. A brief description of the types of activities that the department expects may be conducted at the property under this section or s. 144.442 (4), (6) or (8) s. 292.11, 292.31 (1), (3) or (7) or 144.77 292.41 (4).

(b) The department shall provide notice under subd. 1. par. (a) by certified mail, return receipt requested, to the property owner and to each mortgagee of record at the addresses listed on the recorded documents. If the property owner is unknown or if a mailed notice is returned undelivered, the department shall provide the notice by publication thereof as a class 3 notice under ch. 985.

(c) The failure to provide the notice or include information required under this paragraph subsection does not impair the department's ability to file a lien or to seek to establish the property owner's liability for the expenses incurred by the department.

(d) No notice under this paragraph subsection is necessary in circumstances in which entry onto the property without prior notice is authorized under sub. s. 292.11 (8) or under s. 144.77 292.41 (5).

(3) Any expenditures made by the department under this section, under s. 144.442 (4), (6) or (8) s. 292.11 or 292.31 (1), (3) or (7) or, subject to s. 144.77 292.41 (6) (d), under s. 144.77 292.41 (4) shall constitute a lien upon the property for which expenses are incurred if the department files the lien with the register of deeds in the county in which the property is located. A lien under this subsection section shall be superior to all other liens that are or have been filed against the property, except that if the property is residential property, as defined in s. 895.52 (1) (i), the lien may not affect any valid prior lien on that residential property.

(4) (a) Before filing a lien under par. (c) sub. (3), the department shall give the owner of the property for which the expenses are incurred a notice of its intent to file the lien, as provided in this paragraph subsection.

(b) (intro.) The notice required under subd. 1. par. (a) shall provide all of the following:

(c) The department shall serve the notice required in subd. 1. par. (a) on the property owner at least 60 days before filing the lien. The notice shall be provided by certified mail, return receipt requested, to the property owner and to each mortgagee of record at the addresses listed on the recorded documents. If the property owner is unknown or if a mailed notice is returned undelivered, the department shall provide the notice by publication thereof as a class 3 notice under ch. 985.

(d) In the foreclosure of any lien filed under this paragraph subsection, ch. 846 shall control as far as applicable unless otherwise provided in this paragraph subsection. All persons who may be liable for the expenses incurred by the department may be joined as defendants. The judgment shall adjudge the amount due the department, and shall direct that the property, or so much of the property as is necessary, be sold to satisfy the judgment, and that the proceeds be brought into court with the report of sale to abide the order of the court. If the sum realized at the sale is insufficient after paying the costs of the action and the costs of making the sale, the court shall determine the liability of the defendants for the remaining unreimbursed expenses and costs.

(e) This paragraph subsection does not apply if the lien is filed after the department obtains a judgment against the property owner and the lien is for the amount of the judgment.

227,712 Section 712 . 144.765 (title) and (1) (intro.) of the statutes are renumbered 292.15 (title) and (1) (intro.).

227,713 Section 713 . 144.765 (1) (a) of the statutes is repealed.

227,714 Section 714 . 144.765 (1) (b), (c), (d) and (e) of the statutes are renumbered 292.15 (1) (b), (c), (d) and (e).

227,715 Section 715 . 144.765 (2), (3), (4) and (5) of the statutes are renumbered 292.15 (2), (3), (4) and (5), and 292.15 (2) (a) (intro.) and (4) (intro.), as renumbered, are amended to read:

292.15 (2) (a) (intro.) A purchaser is exempt from the provisions of s. 144.76 292.11 (3), (4) and (7) (b) and (c) with respect to the existence of a hazardous substance on the property the release of which occurred prior to the date of acquisition of the property, if all of the following occur at any time before or after the date of acquisition:

(4) Limited responsibility. (intro.) The responsibility of a purchaser under sub. (2) (a) 2 may be monetarily limited by agreement between the purchaser and the department if the purchaser purchased the property from a municipality that acquired the property in a way described in s. 144.76 292.11 (9) (e) 1. 1m. a. or b. The agreement shall stipulate all of the following:

227,716 Section 716 . 144.77 of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 292.41, and 292.41 (2) and (6) (d), as renumbered, are amended to read:

292.41 (2) Applicability. (a) This section does not apply to abandoned containers which are located in an approved facility or a nonapproved facility, as defined under s. 144.442 (1).