292.11 Annotation
Owner of property from which hazardous substance seeped into neighboring properties was required to take remedial action. Seepage was "discharge" even though not related to current human activity. State v. Mauthe,
123 Wis. 2d 288,
366 N.W.2d 871 (1985).
292.11 Annotation
Sub. (11) (b) allows the imposition of both a monetary penalty and an administrative clean-up order against a violator of this section. Where another regulatory statute is implicated the penalty imposed may be the penalty under this section or the other section, but not both. State v. Block Iron & Supply Co.
183 Wis. 2d 357,
515 N.W.2d 332 (Ct. App. 1994).
292.11 Annotation
Sub. (3) is not a safety statute. A violation of it is not negligence
per se. Grube v. Daun,
210 Wis. 2d 682,
563 N.W.2d 523 (1997).
292.11 Annotation
This section is applicable in actions by the state to compel remediation of, and to impose penalties for, hazardous waste spills, which although initially caused by actions preceding the 1978 effective date of this section, continue to discharge after that date. State v. Chrysler Outboard Corp.
219 Wis. 2d 130,
580 N.W.2d 203 (1998).
292.13
292.13
Property affected by off-site discharge. 292.13(1)(1)
Exemption from liability for groundwater contamination. A person is exempt from
s. 292.11 (3),
(4) and
(7) (b) and
(c) with respect to the existence of a hazardous substance in the groundwater on property possessed or controlled by the person if all of the following apply:
292.13(1)(a)
(a) The discharge of the hazardous substance originated from a source on property that is not possessed or controlled by the person.
292.13(1)(b)
(b) The person did not possess or control the hazardous substance on the property on which the discharge originated or cause the original discharge.
292.13(1)(c)
(c) The person conducts an investigation or submits other information, that the department determines is adequate, to substantiate that
pars. (a) and
(b) are satisfied.
292.13(1)(d)
(d) The person agrees to allow the department, any authorized representatives of the department, any party that possessed or controlled the hazardous substance or caused the discharge of the hazardous substance and any consultant or contractor of such a party to enter the property to take action to respond to the discharge.
292.13(1)(f)
(f) The person agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge.
292.13(1)(g)
(g) The person agrees to any other condition that the department determines is reasonable and necessary to ensure that the department or other person described in
par. (d) can adequately respond to the discharge.
292.13(1m)
(1m) Exemption from liability for soil contamination. A person is exempt from
s. 292.11 (3),
(4) and
(7) (b) and
(c) with respect to the existence of a hazardous substance in the soil on property possessed or controlled by the person if all of the following apply:
292.13(1m)(a)
(a) The discharge of the hazardous substance originated from a source on property that is not possessed or controlled by the person.
292.13(1m)(b)
(b) The person did not possess or control the hazardous substance on the property on which the discharge originated or cause the original discharge.
292.13(1m)(c)
(c) The person conducts an investigation or submits other information, that the department determines is adequate, to substantiate that
pars. (a) and
(b) are satisfied.
292.13(1m)(d)
(d) The person agrees to allow the department, any authorized representatives of the department, any party that possessed or controlled the hazardous substance or caused the discharge of the hazardous substance and any consultant or contractor of such a party to enter the property to take action to respond to the discharge.
292.13(1m)(e)
(e) The person agrees to take one or more of the following actions at the direction of the department if, after the department has made a reasonable attempt to notify the party who caused the discharge of the hazardous substance about the party's responsibilities under
s. 292.11, the department determines that the action or actions are necessary to prevent an imminent threat to human health, safety or welfare or to the environment:
292.13(1m)(e)2.
2. Identify, monitor and mitigate fire, explosion and vapor hazards on the property.
292.13(1m)(e)3.
3. Visually inspect the property and install appropriate containment barriers.
292.13(1m)(f)
(f) The person agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge.
292.13(1m)(g)
(g) The person agrees to any other condition that the department determines is reasonable and necessary to ensure that the department or other person described in
par. (d) can adequately respond to the discharge.
292.13(2)
(2) Determinations concerning liability. The department shall, upon request, issue a written determination that a person who possesses or controls property on which a hazardous substance exists in the soil or groundwater is exempt from
s. 292.11 (3),
(4) and
(7) (b) and
(c) if the person satisfies the applicable requirements in
subs. (1) and
(1m). The department may revoke its determination if it determines that any of the requirements in
sub. (1) or
(1m) cease to be met.
292.13(3)
(3) Fees. The department may, in accordance with rules that it promulgates, assess and collect fees to offset the costs of issuing determinations under
sub. (2).
292.13 History
History: 1997 a. 27;
1999 a. 9.
292.15
292.15
Voluntary party remediation and exemption from liability. 292.15(1)(am)
(am) "Natural attenuation" means the reduction in the mass and concentration in groundwater of a substance, and the products into which the substance breaks down, due to naturally occurring physical, chemical and biological processes, without human intervention.
292.15(1)(b)
(b) "Owner of a business or entity" means any person who owns or who receives direct or indirect consideration from the operation of a business or entity regardless of whether the business or entity remains in operation and regardless of whether the person owns or receives consideration at the time any discharge of a hazardous substance occurs. "Owner of a business or entity" includes a subsidiary or parent corporation.
292.15(1)(e)
(e) "Subsidiary or parent corporation" means any business entity, including a subsidiary, parent corporation or other business arrangement that has elements of common ownership or control or uses a long-term contractual arrangement with any person that has the effect of avoiding direct responsibility for conditions on a parcel of property.
292.15(1)(f)
(f) "Voluntary party" means a person who submits an application to obtain an exemption under this section and pays any fees required under
sub. (5).
292.15(2)(a)(a)
General. Except as provided in
sub. (6) or
(7), a voluntary party is exempt from the provisions of
ss. 289.05 (1),
(2),
(3) and
(4),
289.42 (1),
289.67,
291.25 (1) to
(5),
291.29,
291.37,
292.11 (3),
(4) and
(7) (b) and
(c) and
292.31 (8), and rules promulgated under those provisions, with respect to discharges of hazardous substances on or originating from a property, if the release of those hazardous substances occurred prior to the date on which the department approves the environmental investigation of the property under
subd. 1. and if all of the following occur at any time before or after the date of acquisition:
292.15(2)(a)1.
1. An environmental investigation of the property is conducted that is approved by the department.
292.15(2)(a)2.
2. Except as provided in
sub. (4), the environment is restored to the extent practicable with respect to the discharges and the harmful effects from the discharges are minimized in accordance with rules promulgated by the department and any contract entered into under those rules.
292.15(2)(a)3.
3. The voluntary party obtains a certificate of completion from the department that the environment has been satisfactorily restored to the extent practicable with respect to the discharges and that the harmful effects from the discharges have been minimized.
292.15(2)(a)4.
4. The voluntary party maintains and monitors the property as required under rules promulgated by the department and any contract entered into under those rules.
292.15(2)(a)5.
5. The voluntary party does not engage in activities that are inconsistent with the maintenance of the property.
292.15(2)(a)6.
6. The voluntary party has not obtained the certificate of completion by fraud or misrepresentation, by the knowing failure to disclose material information or under circumstances in which the voluntary party knew or should have known about more discharges of hazardous substances than were revealed by the investigation conducted under
subd. 1.
292.15(2)(ae)
(ae)
Natural attenuation. Except as provided in
sub. (6) or
(7), if there exists a hazardous substance in groundwater on or originating from a property in a concentration that exceeds an enforcement standard and the department determines that natural attenuation will restore groundwater quality in accordance with rules promulgated by the department, a voluntary party is exempt from
ss. 289.05 (1),
(2),
(3) and
(4),
289.42 (1),
289.67,
291.25 (1) to
(5),
291.29,
291.37,
292.11 (3),
(4) and
(7) (b) and
(c) and
292.31 (8), and rules promulgated under those provisions, with respect to discharges of hazardous substances on or originating from the property, if the release of those hazardous substances occurred prior to the date on which the department approves the environmental investigation of the property under
subd. 1. and if all of the following occur at any time before or after the date of acquisition:
292.15(2)(ae)1.
1. An environmental investigation of the property is conducted that is approved by the department.
292.15(2)(ae)2.
2. The environment is restored to the extent practicable with respect to the discharges and the harmful effects from the discharges are minimized in accordance with rules promulgated by the department and any contract entered into under those rules, except that this requirement does not apply with respect to the hazardous substance in groundwater that the department has determined will be brought into compliance with rules promulgated by the department through natural attenuation.
292.15(2)(ae)3.
3. The voluntary party obtains a certificate of completion from the department stating that the environment has been satisfactorily restored to the extent practicable with respect to the discharges and that the harmful effects from the discharges have been minimized, except with respect to the hazardous substance in groundwater that the department has determined will be brought into compliance with rules promulgated by the department through natural attenuation.
292.15(2)(ae)3m.
3m. If required by the department, the voluntary party obtains and maintains insurance to cover the costs of complying with
s. 292.11 (3) with respect to the hazardous substance that the department has determined will be brought into compliance with rules promulgated by the department through natural attenuation, in case natural attenuation fails, and the insurance complies with rules promulgated by the department and names this state as the insured.
292.15(2)(ae)4.
4. The voluntary party maintains and monitors the property as required under rules promulgated by the department and any contract entered into under those rules.
292.15(2)(ae)5.
5. The voluntary party does not engage in activities that are inconsistent with the maintenance of the property.
292.15(2)(ae)6.
6. The voluntary party has not obtained the certification under
subd. 3. by fraud or misrepresentation, by the knowing failure to disclose material information or under circumstances in which the voluntary party knew or should have known about more discharges of hazardous substances than were revealed by the investigation conducted under
subd. 1.
292.15(2)(ag)
(ag)
Property affected by off-site discharge. Except as provided in
sub. (6) or
(7), for a property on which there exists a hazardous substance for which a voluntary party is exempt from liability under
s. 292.13 (1), a voluntary party is exempt from the provisions of
ss. 289.05 (1),
(2),
(3) and
(4),
289.42 (1),
289.67,
291.25 (1) to
(5),
291.29,
291.37,
292.11 (3),
(4) and
(7) (b) and
(c) and
292.31 (8), and rules promulgated under those provisions, with respect to discharges of hazardous substances on or originating from the property, if the release of those hazardous substances occurred prior to the date on which the department approves the environmental investigation of the property under
par. (a) 1., if
par. (a) 1. and
4. to
6. apply and all of the following occur at any time before or after the date of acquisition:
292.15(2)(ag)1.
1. The environment is restored to the extent practicable with respect to the discharges and the harmful effects from the discharges are minimized in accordance with rules promulgated by the department and any contract entered into under those rules, except that this requirement does not apply with respect to the hazardous substance for which the voluntary party is exempt from liability under
s. 292.13 (1).
292.15(2)(ag)2.
2. The voluntary party obtains a certificate of completion from the department stating that the environment has been satisfactorily restored to the extent practicable with respect to the discharges and that the harmful effects from the discharges have been minimized, except with respect to the hazardous substance for which the voluntary party is exempt from liability under
s. 292.13 (1).
292.15(2)(ag)3.
3. The voluntary party obtains a written determination from the department under
s. 292.13 (2) with respect to the hazardous substance for which the voluntary party is exempt from liability under s 292.13 (1).
292.15(2)(am)
(am)
Partial cleanup. The department may approve a partial cleanup and issue a certificate of completion as provided in
par. (a),
(ae) or
(ag) that states that not all of the property has been satisfactorily restored or that not all of the harmful effects from a discharge of a hazardous substance have been minimized. Approval of a partial cleanup exempts a voluntary party from
ss. 291.37 (2) and
292.11 (3),
(4) and
(7) (b) and
(c) with respect to the portion of the property or hazardous substances cleaned up under this paragraph. In addition to meeting the requirements of
par. (a),
(ae) or
(ag), a certificate for a partial cleanup under this paragraph may be issued only if:
292.15(2)(am)1.
1. Public health, safety or the environment will not be endangered by any hazardous substances remaining on or originating from the property after the partial cleanup, given the manner in which the property will be developed and used and any other factors that the department considers relevant to the endangerment of public health, safety or the environment.
292.15(2)(am)2.
2. The activities associated with any proposed use or development of the property will not aggravate or contribute to the discharge of a hazardous substance and will not unduly interfere with, or increase the costs of, restoring the property and minimizing the harmful effects of the discharge of a hazardous substance.
292.15(2)(am)3.
3. The owner of the property agrees to cooperate with the department to address problems caused by hazardous substances remaining on the property. Such cooperation shall include allowing access to the property or allowing the department or its authorized representatives to undertake activities on the property, including placement of borings, equipment and structures on the property.
292.15(2)(ar)
(ar)
Condition. The department may require the owner of the property to grant an easement or other interest in the property for any of the purposes specified in
par. (am) as a condition of issuing a certificate under
par. (am).
292.15(2)(at)
(at)
Discharges discovered after environmental investigations. Except as provided in
sub. (6) or
(7), a voluntary party is exempt from
ss. 289.05 (1),
(2),
(3) and
(4),
289.42 (1),
289.67,
291.25 (1) to
(5),
291.29,
291.37,
292.11 (3),
(4) and
(7) (b) and
(c) and
292.31 (8), and rules promulgated under those provisions, with respect to a discharge of a hazardous substance on or originating from a property if the discharge occurred before the environmental investigation under
subd. 1. is completed and if all of the following apply:
292.15(2)(at)1.
1. An environmental investigation of the property and of any discharges of hazardous substances originating from the property is conducted and is approved by the department.
292.15(2)(at)2.
2. If required by the department, the voluntary party enters into an agreement with the department under which the voluntary party agrees to conduct a cleanup approved by the department.
292.15(2)(at)3.
3. The voluntary party obtains and maintains insurance to cover the costs of complying with
s. 292.11 (3) with respect to hazardous substance discharges that occurred before the investigation under
subd. 1. is completed and that are discovered in the course of conducting a cleanup of the property, the insurance complies with rules promulgated by the department and the insurance names the voluntary party and this state as insureds.
292.15(2)(at)3m.
3m. If the department requires the voluntary party to enter into an agreement under
subd. 2., the voluntary party conducts the agreed upon cleanup.
292.15(2)(at)4.
4. A hazardous substance discharge that occurred before the investigation under
subd. 1. is completed is discovered after the investigation under
subd. 1. is approved and before the cleanup is completed.
292.15(2)(at)6.
6. The voluntary party has not obtained approval of the investigation under
subd. 1. or the agreement under
subd. 2. by fraud or misrepresentation, by the knowing failure to disclose material information or under circumstances in which the voluntary party knew or should have known about more discharges of hazardous substances than were revealed by the investigation conducted under
subd. 1.
292.15(2)(b)
(b)
Extent of exemptions. The exemptions provided in
pars. (a),
(ae),
(ag) and
(am) continue to apply after the date of certification by the department under
par. (a) 3.,
(ae) 3. or
(ag) 2., or approval by the department under
par. (am), notwithstanding the occurrence of any of the following:
292.15(2)(b)1.
1. Statutes, rules or regulations are created or amended that would impose greater responsibilities on the voluntary party than those imposed under
par. (a) 2.,
(ae) 2. or
(ag) 1.
292.15(2)(b)2.
2. The voluntary party fully complies with the rules promulgated by the department and any contract entered into under those rules under
par. (a) 2.,
(ae) 2. or
(ag) 1. but it is discovered that the cleanup fails to fully restore the environment and minimize the effects from a discharge of a hazardous substance.
292.15(2)(b)3.
3. The contamination from a hazardous substance that is the subject of the cleanup under
par. (a) 2.,
(ae) 2. or
(ag) 1. is discovered to be more extensive than anticipated by the voluntary party and the department.
292.15(2)(c)
(c)
Prohibition on action. The department of justice may not commence an action under
42 USC 9607 against any voluntary party meeting the criteria of this subsection to recover costs for which the voluntary party is exempt under
pars. (a),
(ae),
(ag),
(am),
(at) and
(b).
292.15(2)(d)
(d)
Exception. This subsection does not apply to a municipal waste landfill, as defined in
s. 289.01 (22), or to an approved facility.
292.15(2)(e)
(e)
Contract with insurer. If the department requires insurance under
par. (ae) 3m. or
(at) 3., the department may contract with an insurer to provide insurance required under
par. (ae) 3m. or
(at) 3. and may require voluntary parties to obtain coverage under the contract.
292.15(3)
(3) Successors and assigns. An exemption provided in
sub. (2) applies to any successor or assignee of the voluntary party if the successor or assignee complies with the provisions of
sub. (2) (a) 4. and
5. or
(ae) 3m.,
4. and
5. and, if applicable,
sub. (2) (ag) 4. or
(am) as though the successor or assignee were the voluntary party except that the exemption in
sub. (2) does not apply if the successor or assignee knows that a certificate under
sub. (2) (a) 3.,
(ae) 3.,
(ag)2. or
(am) was obtained by any of the means or under any of the circumstances specified in
sub. (2) (a) 6.
292.15(4)
(4) Limited responsibility. The responsibility of a voluntary party under
sub. (2) (a) 2. may be monetarily limited by agreement between the voluntary party and the department if the voluntary party purchased the property from a local governmental unit that acquired the property in a way or for a purpose described in
s. 292.11 (9) (e) 1m. The agreement shall stipulate all of the following:
292.15(4)(a)
(a) That the voluntary party may cease the cleanup when the cost of the cleanup equals 125% of the anticipated expense of the cleanup.
292.15(4)(b)
(b) That the voluntary party will continue to receive the benefit of the exemption under
sub. (2) (a) after cessation of the cleanup if the voluntary party complies with
sub. (2) (a) 4. and
5.
292.15(4)(c)
(c) That, if the voluntary party ceases the cleanup, the voluntary party shall use reasonable efforts to sell the property in accordance with rules of the department that define "reasonable efforts" in a manner substantively equivalent to
40 CFR 300.1100 (d) (2) (i).
292.15(5)
(5) Fees. The department may, in accordance with rules that it promulgates, assess and collect fees from a voluntary party to offset the cost of the department's activities under
subs. (2) and
(4). The fees may include an advance deposit, from which the department shall return the amount in excess of the cost of the department's activities under
subs. (2) and
(4).
292.15(6)(b)
(b) This section does not exempt property from any lien filed under
s. 292.81 (3) for costs that are incurred by the department with respect to a hazardous substance discharge described in
sub. (2) (at) 3. and that are not covered by insurance required by
sub. (2) (at) 3.
292.15(7)
(7) Applicability. This section does not apply to any of the following:
292.15(7)(a)
(a) A hazardous waste treatment, storage or disposal facility that first begins operation after the date on which the voluntary party acquired the property.
292.15(7)(b)
(b) A licensed hazardous waste treatment, storage or disposal facility operated on the property before the date on which the voluntary party acquired the property and that is operated after the date on which the voluntary party acquired the property.
292.15(7)(c)
(c) Any hazardous waste disposal facility that has been issued a license under s.
144.441 (2), 1995 stats., or
s. 289.41 (1m), or rules promulgated under those sections, for a period of long-term care following closure of the facility.
