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.
292.31(7)(c)3.
3. The department shall promulgate rules establishing criteria for determining the responsibility, for the purposes of this subsection, of a municipality for a site or facility affected by the project under
par. (b); the benefit a municipality receives from a project under
par. (b); and the ability of a municipality to pay for a project under
par. (b).
292.31(7)(c)4.
4. All moneys received under this paragraph shall be credited to the environmental fund for environmental management.
292.31(8)(a)1.
1. "Operator" means any person who operates a site or facility or who permits the disposal of waste at a site or facility under his or her management or control for consideration, regardless of whether the site or facility remains in operation and regardless of whether the person operates or permits disposal of waste at the time any environmental pollution occurs. This term includes a subsidiary or parent corporation.
292.31(8)(a)2.
2. "Owner" means any person who owns or who receives direct or indirect consideration from the operation of a site or facility regardless of whether the site or facility remains in operation and regardless of whether the person owns or receives consideration at the time any environmental pollution occurs. This term includes a subsidiary or parent corporation.
292.31(8)(a)3.
3. "Subsidiary or parent corporation" means any business entity, including a subsidiary, parent corporation or other business arrangement which has elements of common ownership or control or uses a long-term contractual arrangement with any person to avoid direct responsibility for conditions at a site or facility.
292.31(8)(b)1.1. This subsection does not apply to the release or discharge of a substance which is in compliance with a permit, license, approval, special order, waiver or variance issued under this chapter or
ch. 30,
31 or
283, or under corresponding federal statutes or regulations.
292.31(8)(b)2.
2. This subsection applies to an owner who purchases the land where a site or facility is located only if the owner knew or should have known of the existence of the site or facility at the time of purchase.
292.31(8)(b)3.
3. This subsection does not apply to the release or discharge of high-volume industrial waste used in a highway improvement project under
s. 84.078.
292.31(8)(c)1.1. An owner or operator is responsible for conditions at a site or facility which presents a substantial danger to public health or welfare or the environment if the person knew or should have known at the time the disposal occurred that the disposal was likely to result in or cause the release of a substance into the environment in a manner which would cause a substantial danger to public health or welfare or to the environment.
292.31(8)(c)2.
2. Any person, including an owner or operator and including a subsidiary or parent corporation which is related to the person, is responsible for conditions at a site or facility which present a substantial danger to public health or welfare or the environment if:
292.31(8)(c)2.a.
a. The person violated any applicable statute, rule, plan approval or special order in effect at the time the disposal occurred and the violation caused or contributed to the condition at the site or facility; or
292.31(8)(c)2.b.
b. The person's action related to the disposal caused or contributed to the condition at the site or facility and would result in liability under common law in effect at the time the disposal occurred, based on standards of conduct for that person at the time the disposal occurred.
292.31(8)(d)
(d)
Right of action. A right of action shall accrue to the state against any person responsible under
par. (c) if an expenditure is made for environmental repair at the site or facility or if an expenditure is made under
sub. (7).
292.31(8)(f)
(f)
Action to recover costs. The attorney general shall take action as is appropriate to recover expenditures to which the state is entitled.
292.31(8)(g)
(g)
Disposition of funds. If the original expenditure was made from the environmental repair fund, under s.
25.46, 1987 stats., or the environmental fund, the net proceeds of the recovery shall be paid into the environmental fund for environmental management. If the original expenditure was made from the investment and local impact fund, the net proceeds of the recovery shall be paid into the investment and local impact fund.
292.31(8)(h)
(h)
Cleanup agreements; waiver of cost recovery. The department and any person who is responsible under
par. (c) may enter into an agreement regarding actions which the department is authorized to take under
sub. (3). In the agreement, the department may specify those actions under
sub. (3) which the responsible person may take. As part of the agreement, the department may agree to reduce the amount which the state is entitled to recover under this subsection or to waive part or all of the liability which the responsible person may have under this subsection.
292.31(8)(i)
(i)
Lien. Any expenditures made by the department under
sub. (1),
(3) or
(7) shall constitute a lien upon the property for which the expenses are incurred, as provided in
s. 292.81.
292.31(9)
(9) Relation to other laws. The department shall coordinate its efforts under this section with the federal environmental protection agency acting under the comprehensive environmental response, compensation and liability act,
42 USC 9601, et seq. The department may not duplicate activities or efforts of the federal environmental protection agency if such duplication is prohibited under
42 USC 9601, et seq.
292.31(10)(a)(a) No common law liability, and no statutory liability which is provided in other statutes, for damages resulting from a site or facility is affected in any manner by this section. The authority, power and remedies provided in this section are in addition to any authority, power or remedy provided in any other statutes or provided at common law.
292.31(10)(b)
(b) If a person takes any remedial action at a site or facility, whether or not an agreement is entered into with the department under
sub. (8) (h), any agreement and the action taken are not evidence of liability or an admission of liability for any potential or actual environmental pollution.
292.31 History
History: 1995 a. 227 ss.
605 to
610,
612;
1995 a. 378 s.
45;
1997 a. 27.
292.35
292.35
Local governmental unit negotiation and cost recovery. 292.35(1)(b)
(b) "Generator" means a person who, by contract, agreement or otherwise, either arranges or arranged for disposal or treatment, or arranges or arranged with a transporter for transport for disposal or treatment, of a hazardous substance owned or possessed by the person, if the disposal or treatment is done by another person at a site or facility owned and operated by another person and the site or facility contains the hazardous substance.
292.35(1)(bm)
(bm) "Local governmental unit" means a municipality, a redevelopment authority created under
s. 66.431 or a public body designated by a municipality under
s. 66.435 (4).
292.35(1)(c)
(c) "Owner or operator" means any of the following:
292.35(1)(c)1.
1. If the property is taken for tax delinquency, a person who owns or operates a site or facility at the time that the site or facility is taken for tax delinquency.
292.35(1)(c)2.
2. A person who owns or operates a site or facility at the time that the disposal or discharge of a hazardous substance at the site or facility occurs.
292.35(1)(e)
(e) "Responsible party" means a generator, an owner or operator, a transporter or a person who possesses or controls a hazardous substance that is discharged or disposed of or who causes the discharge or disposal of a hazardous substance.
292.35(1)(f)
(f) "Site or facility" means an approved facility, an approved mining facility, a nonapproved facility, a waste site or any site where a hazardous substance is discharged on or after May 21, 1978.
292.35(1)(g)
(g) "Transporter" means a person who accepts or accepted a hazardous substance for transport to a site or facility.
292.35(2)
(2) Applicability. This section only applies to a site or facility if the site or facility is owned by a local governmental unit. This section does not apply to a landfill until January 1, 1996.
292.35(2g)
(2g) Identification of responsible parties. 292.35(2g)(a)(a) A local governmental unit that intends to use the cost recovery procedures in this section shall attempt to identify all responsible parties. All information obtained by the local governmental unit regarding responsible parties is a public record and may be inspected and copied under
s. 19.35.
292.35(2g)(b)
(b) Upon the request of an employe or authorized representative of the local governmental unit, or pursuant to a special inspection warrant under
s. 66.122, any person who generated, transported, treated, stored or disposed of a hazardous substance that may have been disposed of or discharged at the site or facility or who is or was an owner or operator shall provide the employe or authorized representative access to any records or documents in that person's custody, possession or control that relate to all of the following:
292.35(2g)(b)1.
1. The type and quantity of hazardous substance that was disposed of or discharged at the site or facility and the dates of the disposal or discharge.
292.35(2g)(b)2.
2. The identity of any person who may be a responsible party.
292.35(2g)(c)
(c) The local governmental unit shall maintain a single repository that is readily accessible to the public for all documents related to responsible parties, the investigation, the remedial action and plans for redevelopment of the property.
292.35(2r)(a)(a) The local governmental unit shall, in consultation with the department, prepare a draft remedial action plan.
292.35(2r)(b)
(b) Upon completion of the draft remedial action plan, the local governmental unit shall send written notice to all responsible parties identified by the local governmental unit, provide public notice and conduct a public hearing on the draft remedial action plan. The notice to responsible parties shall offer the person receiving the notice an opportunity to provide information regarding the status of that person or any other person as a responsible party, notice and a description of the public hearing and a description of the procedures in this section. At the public hearing, the local governmental unit shall solicit testimony on whether the draft remedial action plan is the least costly method of meeting the standards for remedial action promulgated by the department by rule. The local governmental unit shall accept written comments for at least 30 days after the close of the public hearing.
292.35(2r)(c)
(c) Upon the conclusion of the period for written comment, the local governmental unit shall prepare a preliminary remedial action plan, taking into account the written comments and comments received at the public hearing and shall submit the preliminary remedial action plan to the department for approval. The department may approve the preliminary remedial action plan as submitted or require modifications.
292.35(3)
(3) Offer to settle; selection of umpire. 292.35(3)(a)(a) Upon receiving the department's approval of the preliminary remedial action plan, the local governmental unit shall serve an offer to settle regarding the contribution of funds for investigation and remedial action at the site or facility on each of the responsible parties identified by the local governmental unit, using the procedure for service of a summons under
s. 801.11 and shall notify the department that the offer to settle has been served. The local governmental unit shall include in the offer to settle all of the following information:
292.35(3)(a)1.
1. The amount of the offer and a rationale for the amount.
292.35(3)(a)2.
2. The names, addresses and contact persons, to the extent known, for all of the responsible parties identified by the local governmental unit.
292.35(3)(a)3.
3. The location and availability of documents that support the claim of the local governmental unit against the responsible party.
292.35(3)(a)4.
4. The location of the public repository where documents relating to the site or facility are maintained, the times during which the repository is open and the name and telephone number of the contact person at the repository.
292.35(3)(b)
(b) The department shall maintain a list of competent and disinterested umpires qualified to perform the duties under
subs. (4) to
(6). None of the umpires may be employes of the department. Upon receiving notice from a local governmental unit under
par. (a), the secretary or his or her designee shall select an umpire from the list and inform the local governmental unit and responsible parties of the person selected.
292.35(3)(c)
(c) Within 10 days after receiving notice of the umpire selected by the department under
par. (b), the local governmental unit may notify the department that the umpire selected is unacceptable. Within 10 days after receiving notice of the umpire selected by the department under
par. (b), a responsible party may notify the department that the umpire selected is unacceptable or that the responsible party does not intend to participate in the negotiation. Failure to notify the department that the umpire is unacceptable shall be considered acceptance. If all responsible parties identified by the local governmental unit indicate that they do not intend to participate in the negotiation, the department shall inform the local governmental unit and the local governmental unit shall cease further action under this section.
292.35(3)(d)
(d) Upon receiving notice under
par. (c) that the selected umpire is unacceptable, the secretary or his or her designee shall select 5 additional umpires from the list and inform the local governmental unit and responsible parties of the persons selected.
292.35(3)(e)
(e) Within 10 days after receiving notice of the umpires selected by the department under
par. (d), the local governmental unit or a responsible party may notify the department that one or more of the umpires selected are unacceptable. Failure to notify the department shall be considered acceptance. The secretary or his or her designee shall select an umpire from among those umpires not identified as unacceptable by the local governmental unit or a responsible party or, if all umpires are identified as unacceptable, the secretary or his or her designee shall designate a person to be umpire for the negotiation.
292.35(4)(a)(a) The umpire, immediately upon being appointed, shall contact the department, the local governmental unit and the responsible parties that received the offer to settle and shall schedule the negotiating sessions. The umpire shall schedule the first negotiating session no later than 20 days after being appointed. The umpire may meet with all parties to the negotiation, individual parties or groups of parties. The umpire shall facilitate a discussion between the local governmental unit and the responsible parties to attempt to reach an agreement on the design and implementation of the remedial action plan and the contribution of funds by the local governmental unit and responsible parties.
292.35(4)(b)
(b) The umpire shall permit the addition to the negotiation, at any time, of any responsible party or any other person who wishes to be a party to the negotiated agreement.
292.35(4)(c)
(c) Negotiations may not continue for more than 60 days after the first negotiating session, unless an extension is approved by the department for cause, at the request of any party to the negotiation. The department shall approve an extension if necessary to settle insurance claims.
292.35(4)(d)
(d) The local governmental unit and the responsible parties that participate in negotiations shall pay for the costs of the umpire, whether or not an agreement among the parties is reached under
sub. (5) or the parties accept the recommendation of the umpire under
sub. (6). The umpire shall determine an equitable manner of paying for the costs of the umpire, which is binding.
292.35(5)
(5) Agreement in negotiation. The local governmental unit and any of the responsible parties may enter into any agreement in negotiation regarding the design and implementation of the remedial action plan and the contribution of funds by the local governmental unit and responsible parties for the investigation and remedial action. The portion of the agreement containing the design and implementation of the remedial action plan shall be submitted to the department for approval. The department may approve that portion of the agreement as submitted or require modifications.
292.35(6)
(6) Failure to reach agreement in negotiation. 292.35(6)(a)(a) If the local governmental unit and any responsible parties are unable to reach an agreement under
sub. (5) by the end of the period of negotiation, the umpire shall make a recommendation regarding the design and implementation of the remedial action plan and the contribution of funds for investigation and remedial action by the local governmental unit and all responsible parties that were identified by the local governmental unit and that did not reach an agreement under
sub. (5), whether or not the responsible parties participated in negotiations under
sub. (4). The umpire shall submit the recommendation to the department for its approval within 20 days after the end of the period of negotiation under
sub. (4) (c). The department may approve the recommendation as submitted or require modifications. The umpire shall distribute a copy of the approved recommendation to the local governmental unit and all responsible parties identified by the local governmental unit.
292.35(6)(b)
(b) The local governmental unit and the responsible parties that did not reach an agreement under
sub. (5) shall accept or reject the umpire's recommendation within 60 days after receiving it. Failure to accept or reject the recommendation within 60 days shall be considered rejection of the recommendation. If the local governmental unit rejects the recommendation with respect to any responsible party, the recommendation does not apply to that responsible party. If a responsible party rejects the recommendation, it does not apply to that responsible party.
