292.21
292.21
Responsibility of lenders and representatives. 292.21(1)(1)
Responsibility of lenders; lending activities; acquisition of property. 292.21(1)(a)1.1. Subject to
subd. 2. and
par. (b), for purposes of this chapter, a lender does not possess or control a hazardous substance or cause the discharge of a hazardous substance as a result of engaging in lending activities.
292.21(1)(a)2.
2. Subdivision 1. does not apply in any of the following situations:
292.21(1)(a)2.b.
b. The lender through tortious conduct with respect to lending activities causes a discharge of a hazardous substance or exacerbates an existing discharge of a hazardous substance.
292.21(1)(a)3.
3. The department may, by rule, designate as lending activities other activities, in addition to those listed in
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.
292.21(1)(b)
(b)
Preacquisition inspections of real property. For purposes of this chapter, a lender does not possess or control a hazardous substance or cause the discharge of a hazardous substance as the result of inspecting real property for compliance with environmental laws, conducting any portion of an environmental assessment of the property in the manner specified in
par. (c) 2., conducting an investigation to determine the degree and extent of contamination or performing remedial action to clean the discharge of a hazardous substance. This paragraph applies to a lender only if all of the following conditions are satisfied:
292.21(1)(b)1.
1. The activities described in this paragraph occur before the date on which the lender acquires title to, or possession or control of, real property through enforcement of a security interest.
292.21(1)(b)2.
2. The lender notifies the department, in accordance with
s. 292.11 (2), of any discharge of a hazardous substance identified as the result of activities described in this paragraph.
292.21(1)(b)3.
3. If the lender conducts an investigation or performs remedial action, the lender does so in accordance with department rules.
292.21(1)(b)5.
5. The lender through tortious conduct with respect to the activities described in this paragraph does not cause a new discharge of a hazardous substance or exacerbate an existing discharge of a hazardous substance.
292.21(1)(c)1.1. A lender that acquires title to, or possession or control of, real property through enforcement of a security interest is not subject to
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:
292.21(1)(c)1.a.
a. The lender, through action or inaction, does not intentionally or negligently cause a new discharge of a hazardous substance or exacerbate an existing discharge of a hazardous substance.
292.21(1)(c)1.c.
c. The lender notifies the department, in accordance with
s. 292.11 (2), of any known discharge of a hazardous substance.
292.21(1)(c)1.d.
d. The lender conducts an environmental assessment of the real property in accordance with
subd. 2. at any time, but not more than 90 days after the date the lender acquires title to, or possession or control of, the real property. The lender shall file a complete copy of the environmental assessment with the department not more than 180 days after the date the lender acquires title to, or possession or control of, the real property. If an environmental assessment is conducted more than one year before the date on which the lender acquires title to, or possession or control of, the real property, the exemption under this
subd. 1. d. applies only if the lender does all of the following: visually inspects the property in accordance with
subd. 2. a. and
b. after the date on which the lender acquires title to, or possession or control of, the real property to verify the environmental assessment; submits a complete copy of the environmental assessment and the results of the visual inspection to the department not later than 90 days after the lender acquires title to, or possession or control of, the real property; receives notice from the department that the department determines that the environmental assessment is adequate or that the department directs the lender to address any inadequacies in the environmental assessment; corrects, to the satisfaction of the department, any inadequacies of an environmental assessment; and reimburses the department for the cost to the department of reviewing materials submitted under this
subd. 1. d.
292.21(1)(c)1.e.
e. For a hazardous substance released on or after the date on which the lender acquires title to, or possession or control of, the real property, the lender is not engaged in the operation of a business at the property, completion of work in progress or other actions associated with conducting the conclusion of the borrower's business.
292.21(1)(c)1.f.
f. If the discharge of a hazardous substance occurs on or after the date on which the lender acquires title to, or possession or control of, the real property, the lender implements an emergency response action in response to the discharge of the hazardous substance.
292.21(1)(c)2.
2. The environmental assessment under
subd. 1. d. shall be performed by a qualified environmental technician or consultant and shall include all of the following:
292.21(1)(c)2.b.
b. A visual inspection and description of the personal property located on the real property that may constitute a hazardous waste or hazardous substance or that has a significant risk of being discharged.
292.21(1)(c)2.c.
c. A review of the ownership and use history of the real property, including a search of title records showing prior ownership of the real property for a period of 80 years previous to the date of the visual inspection under
subd. 2. b.
292.21(1)(c)2.d.
d. A review of historic and recent aerial photographs of the real property, if available.
292.21(1)(c)2.e.
e. A review of the environmental licenses, permits or orders issued with respect to the real property.
292.21(1)(c)2.f.
f. An evaluation of the results of any environmental sampling and analysis that has been conducted.
292.21(1)(c)2.g.
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. 292.31 (1) (a); and the department's registry of abandoned landfills.
292.21(1)(c)2.h.
h. The collection and analysis of representative samples of soil or other materials in the ground that are suspected of being contaminated based on observations made during a visual inspection of the real property or based on aerial photographs, or other information available to the lender, including stained or discolored soil or other materials in the ground and including soil or materials in the ground in areas with dead or distressed vegetation. The collection and analysis shall identify contaminants in the soil or other materials in the ground and shall quantify concentrations.
292.21(1)(c)2.i.
i. The collection and analysis of representative samples of unknown wastes or potentially hazardous substances found on the real property and the determination of concentrations of hazardous waste and hazardous substances found in tanks, drums or other containers or in piles or lagoons on the real property.
292.21(1)(d)
(d)
Personal property and fixtures. 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
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:
292.21(1)(d)1.
1. Not more than 30 days after entry onto the real property where the personal property or fixtures are located, the lender notifies the department and the borrower of any decision not to accept specific personal property or fixtures.
292.21(1)(d)2.
2. Not more than 30 days after entry onto the real property where the personal property or fixtures are located, the lender provides the department with a written general description of the personal property or fixtures, the location of the personal property or fixtures on the real property and the location of the real property by street address.
292.21(1)(d)3.
3. The lender, within its ability to do so, permits reasonable access to the personal property or fixtures to the department or the borrower or others acting on the borrower's behalf.
292.21(1)(d)4.
4. The lender does not engage in the operation of a business at the location of the personal property or fixtures, completion of work in progress or other actions associated with conducting the conclusion of the borrower's business except for actions that are undertaken to protect the property and are approved by the department in writing.
292.21(1)(e)
(e)
Rules; approvals. The department may promulgate rules further specifying the activities to be carried out by a lender for the environmental assessment required under
par. (c) 1. d. The department may not, by rule, require a lender to undertake sampling and analysis beyond that required under
par. (c) 2. h. and
i. in order to determine the degree and extent of contamination or require a lender to perform any remedial action to clean any discharge. The department may approve, by rule or in a site-specific approval, the use of reliable methods of identification other than the collection and laboratory analysis of samples.
292.21(2)
(2) Responsibility of representatives. 292.21(2)(a)(a) A representative who acquires title to, or possession or control of, real or personal property is not personally liable under this chapter for a discharge of a hazardous substance if all of the following circumstances apply:
292.21(2)(a)1.
1. The representative acquires title to, or possession or control of, the real or personal property in the capacity of a representative.
292.21(2)(a)2.
2. The representative, through action or inaction, does not knowingly, wilfully or recklessly cause a discharge of a hazardous substance.
292.21(2)(a)3.
3. The representative does not physically cause a discharge of a hazardous substance.
292.21(2)(a)4.
4. The representative does not have a beneficial interest in a trust, estate or similar entity that owns, possesses or controls the real or personal property.
292.21(2)(a)5.
5. The representative does not knowingly, wilfully or recklessly fail to notify the department in accordance with
s. 292.11 (2) of the discharge of a hazardous substance.
292.21(2)(b)1.
1. A representative that knew or should have known that the trust, estate or similar entity for which the representative is acting as a representative was established, or that assets were transferred to the trust, estate or similar entity, in order to avoid responsibility for a discharge of a hazardous substance.
292.21(2)(b)2.
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
s. 292.11 (3) or to reimburse the department under
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.
292.21(2)(c)
(c) This subsection does not limit the responsibility of any trust, estate or similar entity to take the actions required under
s. 292.11 (2),
(3),
(4) or
(7) (c) or any other provision of this chapter or to reimburse the department under
s. 292.11 (7) (b).
292.21 History
History: 1995 a. 227 s.
708,
709,
993;
1997 a. 27.
292.26
292.26
Civil immunity; local governmental units. 292.26(2)
(2) Except as provided in
sub. (3), a local governmental unit is immune from civil liability related to the discharge of a hazardous substance on or from property formerly owned or controlled by the local governmental unit if the property is no longer owned by the local governmental unit at the time that the discharge is discovered and if any of the following applies:
292.26(2)(a)
(a) The local governmental unit acquired the property through tax delinquency proceedings or as the result of an order by a bankruptcy court.
292.26(2)(b)
(b) The local governmental unit acquired the property from a local governmental unit that acquired the property under a method described in
par. (a).
292.26(2)(c)
(c) The local governmental unit acquired the property through condemnation or other proceeding under
ch. 32.
292.26(2)(d)
(d) The local governmental unit acquired the property for the purpose of slum clearance or blight elimination.
292.26(3)
(3) Subsection (2) does not apply with respect to a discharge of a hazardous substance caused by an activity conducted by the local governmental unit while the local governmental unit owned or controlled the property.
292.26 History
History: 1997 a. 27.
292.31
292.31
Environmental repair. 292.31(1)
(1)
Inventory; analysis; hazard ranking. 292.31(1)(a)1.1. The department shall compile and maintain an inventory of sites or facilities which may cause or threaten to cause environmental pollution. In compiling the inventory, the department shall collect all relevant information about a site or facility which is or may become available. No later than January 1, 1992, the department shall publish the initial inventory of sites or facilities. Every 4 years, beginning no later than January 1, 1996, the department shall publish a revised inventory of sites or facilities.
292.31(1)(a)2.
2. The department shall publish the initial inventory and each revised inventory as a class 1 notice under
ch. 985 in the official state newspaper under
s. 985.04 or, if none exists, in a major newspaper with statewide circulation. The notice shall include a statement that the list is not subject to judicial review.
292.31(1)(a)3.
3. The decision of the department to include a site or facility on the inventory or exclude a site or facility from the inventory is not subject to judicial review.
292.31(1)(b)1.1. The department may take direct action under
subd. 2. or
3. or may enter into a contract with any person to take the action. The department may take action under
subd. 2. or
3. regardless of whether a site or facility is included on the inventory under
par. (a) or the hazard ranking list under
par. (c).
292.31(1)(b)2.
2. The department may conduct an investigation, analysis and monitoring of a site or facility and areas surrounding the site or facility to determine the existence and extent of actual or potential environmental pollution from the site or facility including, but not limited to, monitoring by means of installing test wells or by testing water supplies. The department may conduct an investigation to identify persons who are potentially responsible for actual or potential environmental pollution from a site or facility. If the department conducts an investigation to identify persons who are potentially responsible for actual or potential environmental pollution from a site or facility, the department shall make a reasonable effort to identify as many persons as possible responsible for the environmental pollution.
292.31(1)(b)3.
3. The department may determine whether a site or facility presents a substantial danger to public health or welfare or the environment and evaluate the magnitude of the danger.
292.31(1)(c)1.1. The department shall promulgate by rule criteria for determining the ranking of sites and facilities which are included in the inventory under
par. (a), based on the degree to which sites or facilities present a substantial danger to public health or welfare or the environment and the potential urgency of taking remedial action. To the extent applicable, the criteria shall be based on the population at risk, the potential for contamination of drinking water supplies, the potential for other direct human contact, the potential for destruction of sensitive ecosystems, the hazard potential of the hazardous substances which may be released and other appropriate factors. The department is not required to use hazard ranking criteria promulgated by the federal environmental protection agency under
42 USC 9601, et seq.
292.31(1)(c)2.
2. From time to time, the department shall issue documents, consistent with the criteria in
subd. 1., which list the hazard ranking of sites and facilities which are included in the inventory under
par. (a). The hazard ranking list shall include in a single category those sites or facilities determined by the department to present a substantial danger to public health or welfare or the environment. The department may include subcategories in the hazard ranking list which group together, without assigning a specific degree of risk and without establishing an individual hazard ranking, sites or facilities which do not present a substantial danger to public health or welfare or the environment. No later than January 1, 1994, the department shall complete the hazard ranking of all sites or facilities which are included in the initial inventory compiled under
par. (a). Notwithstanding
s. 227.01 (13) or
227.10 (1), documents issued under this subdivision are not rules.
292.31(1)(c)3.
3. The department shall publish the hazard ranking list and any amendments to the hazard ranking list as a class 1 notice under
ch. 985 in the official state newspaper under
s. 985.04 or, if none exists, in a major newspaper with statewide circulation. The notice shall invite the submission of written comments within the 30-day period after the notice is published. The notice shall include a description of the procedure for requesting a public hearing and a statement that the list is not subject to judicial review.
292.31(1)(c)4.
4. Within 30 days after the hazard ranking list or any amendments to the hazard ranking list are published, any person may submit to the department a request for a public hearing. If a hearing is requested within the 30-day period, the department shall publish a notice of the hearing, at least 10 days prior to the hearing, as a class 1 notice under
ch. 985 in the official state newspaper under
s. 985.04 or, if none exists, in a major newspaper with statewide circulation. The department shall conduct the public hearing within 90 days after the hearing is requested. The department may publish a notice and conduct a public hearing if a request is received after the 30-day period. Notwithstanding
s. 227.42, the hearing under this paragraph shall not be conducted as a contested case.
292.31(1)(c)5.
5. The decision of the department concerning the hazard ranking assigned to a site or facility is not subject to judicial review.
292.31(1)(d)
(d)
Access to information. Upon the request of any officer, employe or authorized representative of the department, any person who generated, transported, treated, stored or disposed of solid or hazardous waste which may have been disposed of at a site or facility under investigation by the department shall provide the officer, employe or authorized representative access to any records or documents in that person's custody, possession or control which relate to:
292.31(1)(d)1.
1. The type and quantity of waste generated, transported, treated or stored which was disposed of at the site or facility and the dates of these activities.
292.31(1)(d)2.
2. The identity of persons who generated, transported, treated or stored waste which was disposed of at the site or facility.
292.31(1)(d)3.
3. The identity of subsidiary or parent corporations, as defined in 292.31 (8) (a) 3., of persons who generated, transported, treated or stored waste which was disposed of at the site or facility.
292.31(2)
(2) Environmental response plan. The department shall promulgate by rule a waste facility environmental response plan. The plan shall contain the following provisions:
292.31(2)(a)
(a) Methods for preparing the inventory and conducting the analysis under
sub. (1).
292.31(2)(c)
(c) Methods and criteria for determining the appropriate extent of remedial action under
sub. (3).
292.31(2)(d)
(d) Means of ensuring that the costs of remedial action are appropriate in relation to the associated benefits over the period of potential human exposure to substances released by the site or facility.
292.31(2)(e)
(e) Appropriate roles and responsibilities under this section for federal, state and local governments and for interstate and nongovernmental entities.
