292.11(9)(d)1.d.
d. "Registered" means registered under the federal insecticide, fungicide, and rodenticide act, as amended (
7 USC 136 et seq.), and regulations issued under that act or registered under the rules of the department of agriculture, trade and consumer protection.
292.11(9)(d)2.
2. Any person applying a registered pesticide according to the label instructions, or applying a fertilizer at or below normal and beneficial agronomic rates, is exempted with respect to the application from the reporting and penalty requirements of this section.
292.11(9)(e)1.1. In this paragraph, "local governmental unit" means a municipality, a redevelopment authority created under
s. 66.1333, a public body designated by a municipality under
s. 66.1337 (4), a community development authority or a housing authority.
292.11(9)(e)1m.
1m. Except as provided in
subds. 2.,
4.,
6. and
7., a local governmental unit is exempt from
subs. (3),
(4) and
(7) (b) and
(c) with respect to discharges of hazardous substances on or originating from property acquired by the local government unit before, on or after October 29, 1999, if any of the following applies:
292.11(9)(e)1m.a.
a. The local governmental unit acquired the property through tax delinquency proceedings or as the result of an order by a bankruptcy court.
292.11(9)(e)1m.b.
b. The local governmental unit acquired the property from a local governmental unit that is exempt under this subdivision with respect to the property.
292.11(9)(e)1m.c.
c. The local governmental unit acquired the property through condemnation or other proceeding under
ch. 32.
292.11(9)(e)1m.d.
d. The local governmental unit acquired the property for the purpose of slum clearance or blight elimination.
292.11(9)(e)1m.e.
e. The local governmental unit acquired the property through escheat.
292.11(9)(e)1s.
1s. Except as provided in
subds. 2. and
4. to
6., an economic development corporation described in section
501 (c) of the Internal Revenue Code, as defined in
s. 71.22 (4), that is exempt from federal taxation under section
501 (a) of the Internal Revenue Code, or an entity wholly owned and operated by such a corporation, is exempt from
subs. (3),
(4) and
(7) (b) and
(c) with respect to property acquired before, on or after October 14, 1997, if the property is acquired to further the economic development purposes that qualify the corporation as exempt from federal taxation.
292.11(9)(e)2.
2. Subdivisions 1m. and
1s. do not apply to a discharge of a hazardous substance caused by any of the following:
292.11(9)(e)2.a.
a. An action taken by the local governmental unit or corporation.
292.11(9)(e)2.b.
b. A failure of the local governmental unit or corporation to take appropriate action to restrict access to the property in order to minimize costs or damages that may result from unauthorized persons entering the property.
292.11(9)(e)2.c.
c. A failure of the local governmental unit or corporation to sample and analyze unidentified substances in containers stored aboveground on the property.
292.11(9)(e)2.d.
d. A failure of the local governmental unit or corporation to remove and properly dispose of, or to place in a different container and properly store, any hazardous substance stored aboveground on the property in a container that is leaking or is likely to leak.
292.11(9)(e)4.
4. Subdivisions 1m. and
1s. do not apply if, after considering the intended development and use of the property, the department determines that action is necessary to reduce to acceptable levels any substantial threat to public health or safety when the property is developed or put to that intended use, the department directs the local governmental unit or corporation to take that necessary action and the local governmental unit or corporation does not take that action as directed.
292.11(9)(e)5.
5. Subdivision 1s. does not apply if the corporation fails to do any of the following:
292.11(9)(e)5.a.
a. Respond to a discharge of a hazardous substance that poses an imminent threat to public health, safety or welfare or to the environment, on or off of the property.
292.11(9)(e)5.b.
b. Enter into an agreement with the department to conduct any necessary investigation and remediation activities at the property no later than 3 years after acquiring the property.
292.11(9)(e)6.
6. Subdivisions 1m. and
1s. only apply if the local governmental unit or the economic development corporation 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.
292.11(9)(e)7.
7. Subdivision 1m. does not apply to property described in
subd. 1m. f. unless the local governmental unit enters into an agreement with the department to ensure that the conditions in
subds. 2. and
4. are satisfied.
292.11(9)(f)
(f) Any person discharging high-volume industrial waste used in a highway improvement project under
s. 84.078 is exempted from the penalty requirements of this section.
292.11(10)
(10) Waiver. The department may waive compliance with any requirement of this section to the extent necessary to prevent an emergency condition threatening public health, safety or welfare.
292.11(11)(a)(a) Any person proceeded against for a violation of this section shall not be subject to penalties under
s. 291.97 for the same act or omission.
292.11(11)(b)
(b) Any person who discharges a hazardous substance, where the responsibilities for such a discharge are prescribed by statute other than
ch. 291, shall be subject to the penalty under either this section or the other section but not both.
292.11(13)
(13) Lien. Any expenditures made by the department under
sub. (4),
(6) or
(8) shall constitute a lien upon the property for which the expenses are incurred, as provided in
s. 292.81.
292.11 Cross-reference
Cross Reference: See also chs.
Comm 46 and
NR 702,
706,
708,
714,
716,
718,
720,
722,
724,
726, and
746, Wis. adm. code.
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, including sediments, 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;
2001 a. 16.
292.13 Cross-reference
Cross Reference: See also ch.
NR 749, Wis. adm. code.
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. If the voluntary party owns or controls the property, 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. If the voluntary party owns or controls the property, 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.
