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.
292.31(3)(b)1.1. The department may take direct action under
subds. 2. to
9. or may enter into a contract with any person to take the action.
292.31(3)(b)2.
2. The department may take action to avert potential environmental pollution from the site or facility.
292.31(3)(b)3.
3. The department may repair the site or facility or isolate the waste.
292.31(3)(b)4.
4. The department may abate, terminate, remove and remedy the effect of environmental pollution from the site or facility.
292.31(3)(b)5.
5. The department may restore the environment to the extent practicable.
292.31(3)(b)6.
6. The department may establish a program of long-term care, as necessary, for a site or facility which is repaired or isolated.
292.31(3)(b)7.
7. The department may provide temporary or permanent replacements for private water supplies damaged by a site or facility. In this subdivision, "private water supply" means a well which is used as a source of water for humans, livestock, as defined in
s. 95.80 (1) (b), or poultry.
292.31(3)(b)8.
8. The department may assess the potential health effects of the occurrence, not to exceed $10,000 per occurrence.
292.31(3)(b)9.
9. The department may take any other action not specified under
subds. 2. to
8. consistent with this subsection in order to protect public health, safety or welfare or the environment.
292.31(3)(c)
(c)
Sequence of remedial action. In determining the sequence for taking remedial action under this subsection, the department shall consider the hazard ranking of each site or facility, the amount of funds available, the information available about each site or facility, the willingness and ability of an owner, operator or other responsible person to undertake or assist in remedial action, the availability of federal funds under
42 USC 9601, et seq., and other relevant factors. The department shall give the highest priority to remedial action at sites or facilities which have caused contamination of a municipal water system in a town with a population greater than 10,000. If any such site or facility is eligible for federal funds under 42 USC s. 9601 to 9675, but the federal funds will not be available before January 1, 2000, the department shall proceed with remedial action using state funds.
292.31(3)(cm)
(cm)
Remedial action schedule. The department shall commence remedial action as required under this paragraph for sites or facilities which are included on the hazard ranking list and are determined to present a substantial danger to public health or welfare or the environment. The department shall commence remedial action at no less than 2 of the sites or facilities by January 1, 1989. The department shall commence remedial action at all of the sites or facilities by January 1, 2000. After January 1, 1989 and before January 1, 2000, the department shall annually commence remedial action at no less than 2 of the sites or facilities.
292.31(3)(d)
(d)
Emergency responses. Notwithstanding rules promulgated under this section, the hazard ranking list, the considerations for taking action under
par. (c) or the remedial action schedule under
par. (cm), the department may take emergency action under this subsection and
subs. (1) and
(7) at a site or facility if delay will result in imminent risk to public health or safety or the environment. The department is not required to hold a hearing under
par. (f) if emergency action is taken under this paragraph. The decision of the department to take emergency action is a final decision of the agency subject to judicial review under
ch. 227.
292.31(3)(e)
(e)
Access to property. Any officer, employe or authorized representative of the department may enter onto any site or facility and areas surrounding the site or facility at reasonable times and upon notice to the owner or occupant to take action under this section. Notice to the owner or occupant is not required if the delay required to provide this notice is likely to result in an imminent risk to public health or welfare or the environment.
292.31(3)(f)
(f)
Notice; hearing. The department shall publish a class 1 notice, under
ch. 985, prior to taking remedial action under this subsection and
subs. (1) and
(7), which describes the proposed remedial action and the amount and purpose of any proposed expenditure. Except as provided under
par. (d), the department shall provide a hearing to any person who demands a hearing within 30 days after the notice is published for the purpose of determining whether the proposed remedial action and any expenditure is within the scope of this section and is reasonable in relation to the cost of obtaining similar materials and services. The department is not required to conduct more than one hearing for the remedial action proposed at a single site or facility. Notwithstanding
s. 227.42, the hearing shall not be conducted as a contested case. The decision of the department to take remedial action under this section is a final decision of the agency subject to judicial review under
ch. 227.
292.31(4)
(4) Monitoring costs at nonapproved facilities owned or operated by municipalities. Notwithstanding the inventory, analysis and hazard ranking under
sub. (1), the environmental response plan prepared under
sub. (2) or the environmental repair authority, remedial action sequence and emergency response requirements under
sub. (3), the department shall pay that portion of the cost of any monitoring requirement which is to be paid under
s. 289.31 (7) (f) from the appropriation under
s. 20.370 (2) (dv) prior to making other payments from that appropriation.
292.31(5)
(5) Municipal incinerator ash testing. Notwithstanding the inventory, analysis and hazard ranking under
sub. (1), the environmental response plan prepared under
sub. (2), the environmental repair authority, remedial action sequence and emergency response requirements under
sub. (3), or the monitoring costs under
sub. (4), the department shall pay the cost incurred by a municipality after June 30, 1986, and before January 30, 1988, for testing required to determine whether the ash from a municipally owned incinerator is hazardous. The department shall make payments under this subsection from the appropriation under
s. 20.370 (2) (dv) prior to making other payments from that appropriation.
292.31(6)
(6) Payments from the investment and local impact fund. The department may expend moneys received from the investment and local impact fund for the purposes specified under
sub. (3) only for approved mining facilities and only if moneys in the environmental fund that are available for environmental repair are insufficient to make complete payments. The amount expended by the department under this subsection may not exceed the balance in the environmental fund that is available for environmental repair at the beginning of that fiscal year or 50% of the balance in the investment and local impact fund at the beginning of that fiscal year, whichever amount is greater.
292.31(7)
(7) Implementing the federal superfund act. 292.31(7)(a)(a) The department may advise, consult, assist and contract with other interested persons to take action to implement the federal comprehensive environmental response, compensation and liability act of 1980,
42 USC 9601, et seq., in cooperation with the federal environmental protection agency. These actions include all of the actions under
subs. (1) to
(3). The department may enter into agreements with the federal environmental protection agency.
292.31(7)(b)
(b) The department may expend moneys from the appropriations under
ss. 20.370 (2) (dv) and
20.866 (2) (tg) as required under
42 USC 9601, et seq. The department shall promulgate by rule criteria for the expenditure of moneys from the appropriations under
ss. 20.370 (2) (dv) and
20.866 (2) (tg). The criteria shall include consideration of the amount of moneys available in the appropriations under
ss. 20.370 (2) (dv) and
20.866 (2) (tg), the moneys available from other sources for the required sharing of costs, the differences between public and private sites or facilities, the potential for cost recovery from responsible parties and any other appropriate factors.
292.31(7)(c)1.1. The department may require a municipality to pay a reasonable share of the amount expended by the department for a project under
par. (b). The department shall base any share charged to a municipality for a project under
par. (b) on the following factors:
292.31(7)(c)1.a.
a. The municipality's responsibility for the site or facility affected by the project.
292.31(7)(c)1.b.
b. The benefit that the municipality receives from the project.
292.31(7)(c)2.
2. The total amount charged to all municipalities who are charged for the project may not exceed 50% of the amount expended by the department under
par. (b) for the project.
