292.21(1)(b)
(b)
Preacquisition inspections of real property. For purposes of this chapter, a lender does not possess or control a hazardous substance or cause the discharge of a hazardous substance as the result of inspecting real property for compliance with environmental laws, conducting any portion of an environmental assessment of the property in the manner specified in
par. (c) 2., conducting an investigation to determine the degree and extent of contamination or performing remedial action to clean the discharge of a hazardous substance. This paragraph applies to a lender only if all of the following conditions are satisfied:
292.21(1)(b)1.
1. The activities described in this paragraph occur before the date on which the lender acquires title to, or possession or control of, real property through enforcement of a security interest.
292.21(1)(b)2.
2. The lender notifies the department, in accordance with
s. 292.11 (2), of any discharge of a hazardous substance identified as the result of activities described in this paragraph.
292.21(1)(b)3.
3. If the lender conducts an investigation or performs remedial action, the lender does so in accordance with department rules.
292.21(1)(b)5.
5. The lender through tortious conduct with respect to the activities described in this paragraph does not cause a new discharge of a hazardous substance or exacerbate an existing discharge of a hazardous substance.
292.21(1)(c)1.1. A lender that acquires title to, or possession or control of, real property through enforcement of a security interest is not subject to
s. 292.11 (3),
(4) and
(7) (b) and
(c) and is not liable under this chapter or
chs. 281,
285,
289,
291 or
293 to
299 for a discharge of a hazardous substance on that real property if all of the following conditions are satisfied:
292.21(1)(c)1.a.
a. The lender, through action or inaction, does not intentionally or negligently cause a new discharge of a hazardous substance or exacerbate an existing discharge of a hazardous substance.
292.21(1)(c)1.c.
c. The lender notifies the department, in accordance with
s. 292.11 (2), of any known discharge of a hazardous substance.
292.21(1)(c)1.d.
d. The lender conducts an environmental assessment of the real property in accordance with
subd. 2. at any time, but not more than 90 days after the date the lender acquires title to, or possession or control of, the real property. The lender shall file a complete copy of the environmental assessment with the department not more than 180 days after the date the lender acquires title to, or possession or control of, the real property. If an environmental assessment is conducted more than one year before the date on which the lender acquires title to, or possession or control of, the real property, the exemption under this
subd. 1. d. applies only if the lender does all of the following: visually inspects the property in accordance with
subd. 2. a. and
b. after the date on which the lender acquires title to, or possession or control of, the real property to verify the environmental assessment; submits a complete copy of the environmental assessment and the results of the visual inspection to the department not later than 90 days after the lender acquires title to, or possession or control of, the real property; receives notice from the department that the department determines that the environmental assessment is adequate or that the department directs the lender to address any inadequacies in the environmental assessment; corrects, to the satisfaction of the department, any inadequacies of an environmental assessment; and reimburses the department for the cost to the department of reviewing materials submitted under this
subd. 1. d.
292.21(1)(c)1.e.
e. For a hazardous substance released on or after the date on which the lender acquires title to, or possession or control of, the real property, the lender is not engaged in the operation of a business at the property, completion of work in progress or other actions associated with conducting the conclusion of the borrower's business.
292.21(1)(c)1.f.
f. If the discharge of a hazardous substance occurs on or after the date on which the lender acquires title to, or possession or control of, the real property, the lender implements an emergency response action in response to the discharge of the hazardous substance.
292.21(1)(c)1.g.
g. The lender 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 real property to take action to respond to the discharge.
292.21(1)(c)1.h.
h. The lender agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge.
292.21(1)(c)1.i.
i. The lender agrees to any other condition that the department determines is reasonable and necessary to ensure that the department or other person described in
subd. 1. g. can adequately respond to the discharge.
292.21(1)(c)2.
2. The environmental assessment under
subd. 1. d. shall be performed by a qualified environmental technician or consultant and shall include all of the following:
292.21(1)(c)2.b.
b. A visual inspection and description of the personal property located on the real property that may constitute a hazardous waste or hazardous substance or that has a significant risk of being discharged.
292.21(1)(c)2.c.
c. A review of the ownership and use history of the real property, including a search of title records showing prior ownership of the real property for a period of 80 years previous to the date of the visual inspection under
subd. 2. b.
292.21(1)(c)2.d.
d. A review of historic and recent aerial photographs of the real property, if available.
292.21(1)(c)2.e.
e. A review of the environmental licenses, permits or orders issued with respect to the real property.
292.21(1)(c)2.f.
f. An evaluation of the results of any environmental sampling and analysis that has been conducted.
292.21(1)(c)2.g.
g. A review to determine if the real property is listed in any of the written compilations of sites or facilities considered to pose a threat to human health or the environment, including the national priorities list under
42 USC 9605 (a) (8) (B); the federal environmental protection agency's information system for the comprehensive environmental response, compensation and liability act,
42 USC 9601 to
9675, (CERCLIS); the department's most recent Wisconsin remedial response site evaluation report, including the inventory of sites or facilities which may cause or threaten to cause environmental pollution required by
s. 292.31 (1) (a); and the department's registry of abandoned landfills.
292.21(1)(c)2.h.
h. The collection and analysis of representative samples of soil or other materials in the ground that are suspected of being contaminated based on observations made during a visual inspection of the real property or based on aerial photographs, or other information available to the lender, including stained or discolored soil or other materials in the ground and including soil or materials in the ground in areas with dead or distressed vegetation. The collection and analysis shall identify contaminants in the soil or other materials in the ground and shall quantify concentrations.
292.21(1)(c)2.i.
i. The collection and analysis of representative samples of unknown wastes or potentially hazardous substances found on the real property and the determination of concentrations of hazardous waste and hazardous substances found in tanks, drums or other containers or in piles or lagoons on the real property.
292.21(1)(d)
(d)
Personal property and fixtures. A lender that enforces a security interest in personal property or fixtures at a particular location, filed under
ch. 409, and that does not acquire title to, or possession or control of, the real property at that location, except for purposes of protecting and removing personal property or fixtures, is not subject to
s. 292.11 (3),
(4) and
(7) (b) and
(c) and is not liable under this chapter for a discharge of a hazardous substance on that real property if all of the following conditions are satisfied:
292.21(1)(d)1.
1. Not more than 30 days after entry onto the real property where the personal property or fixtures are located, the lender notifies the department and the borrower of any decision not to accept specific personal property or fixtures.
292.21(1)(d)2.
2. Not more than 30 days after entry onto the real property where the personal property or fixtures are located, the lender provides the department with a written general description of the personal property or fixtures, the location of the personal property or fixtures on the real property and the location of the real property by street address.
292.21(1)(d)3.
3. The lender, within its ability to do so, permits reasonable access to the personal property or fixtures to the department or the borrower or others acting on the borrower's behalf.
292.21(1)(d)4.
4. The lender does not engage in the operation of a business at the location of the personal property or fixtures, completion of work in progress or other actions associated with conducting the conclusion of the borrower's business except for actions that are undertaken to protect the property and are approved by the department in writing.
292.21(1)(e)
(e)
Rules; approvals. The department may promulgate rules further specifying the activities to be carried out by a lender for the environmental assessment required under
par. (c) 1. d. The department may not, by rule, require a lender to undertake sampling and analysis beyond that required under
par. (c) 2. h. and
i. in order to determine the degree and extent of contamination or require a lender to perform any remedial action to clean any discharge. The department may approve, by rule or in a site-specific approval, the use of reliable methods of identification other than the collection and laboratory analysis of samples.
292.21(2)
(2) Responsibility of representatives. 292.21(2)(a)(a) A representative who acquires title to, or possession or control of, real or personal property is not personally liable under this chapter for a discharge of a hazardous substance if all of the following circumstances apply:
292.21(2)(a)1.
1. The representative acquires title to, or possession or control of, the real or personal property in the capacity of a representative.
292.21(2)(a)2.
2. The representative, through action or inaction, does not knowingly, willfully 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, willfully 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 Cross-reference
Cross Reference: See also ch.
NR 749, Wis. adm. code.
292.24
292.24
Responsibility of local governmental units; hazardous waste. 292.24(2)
(2) Exemption from liability. Except as provided in
sub. (3), a local governmental unit is exempt from
ss. 291.25 (1) to
(5),
291.29 and
291.37, and rules promulgated under those provisions, with respect to the existence of a hazardous waste discharge on property acquired in a way or for a purpose described in
s. 292.11 (9) (e) 1m., if all of the following occur at any time before or after the date of acquisition:
292.24(2)(a)
(a) An environmental investigation of the property is conducted that is approved by the department and that identifies any hazardous waste discharges that occurred on the property.
292.24(2)(b)
(b) The hazardous waste discharges identified by the investigation under
par. (a) are cleaned up by restoring the environment to the extent practicable with respect to the discharges and minimizing the harmful effects from the discharges in accordance with rules promulgated by the department and any contract entered into under those rules.
292.24(2)(c)
(c) The local governmental unit obtains an approval from the department stating that the property has been satisfactorily restored to the extent practicable with respect to the hazardous waste discharges and that the harmful effects from the discharges have been minimized.
292.24(2)(d)
(d) The local governmental unit maintains and monitors the property as required under rules promulgated by the department and any contract entered into under those rules.
292.24(2)(e)
(e) The local governmental unit does not engage in activities that are inconsistent with the maintenance of the property.
292.24(2)(f)
(f) The local governmental unit has not obtained the certification under
par. (c) by fraud or misrepresentation, by the knowing failure to disclose material information or under circumstances in which the local governmental unit knew or should have known about more discharges of hazardous waste than were revealed by the investigation conducted under
par. (a).
292.24(2)(g)
(g) The local governmental unit did not cause the discharge of any hazardous waste identified on the property.
292.24(3)
(3) Applicability. Subsection (2) does not apply to any of the following:
292.24(3)(a)
(a) A hazardous waste treatment, storage or disposal facility that first begins operation after the date on which the local governmental unit acquired the property.
292.24(3)(b)
(b) A licensed hazardous waste treatment, storage or disposal facility operated on the property before the date on which the local governmental unit acquired the property and that is operated after the date on which the local governmental unit acquired the property.
292.24(3)(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.
292.24 History
History: 1999 a. 9.
292.25
292.25
Report on impact of exemptions from liability. 292.25(1)(1) The department shall biennially determine all of the following:
292.25(1)(a)
(a) The number of sites for which a person is seeking to qualify for an exemption under
s. 292.15.
292.25(1)(b)
(b) The number of sites for which a certificate of completion was issued under
s. 292.15.
292.25(1)(c)
(c) The number of sites for which a certificate of completion was issued under
s. 292.15 at which it is discovered that the cleanup failed or at which additional hazardous substances are found after the certificate of completion was issued.
292.25(1)(d)
(d) The number of sites described in
par. (b) at which the department has determined that it is necessary to conduct remedial action using moneys from the environmental fund and the estimated costs of performing that remedial action.
292.25(1)(e)
(e) The number of sites for which a claim was made against an insurance policy required under
s. 292.15.
292.25(2)
(2) No later than September 15 of each even-numbered year, the department shall submit a report describing its determinations under
sub. (1) to the legislature under
s. 13.172 (2), to the governor and to the department of administration.
292.25(3)
(3) The department may require a person to provide information necessary for the department to make the determinations under
sub. (1).
292.25 History
History: 1999 a. 9.
292.255
292.255
Report on brownfield efforts. The department of natural resources, the department of administration and the department of commerce shall submit a report evaluating the effectiveness of this state's efforts to remedy the contamination of, and to redevelop, brownfields, as defined in
s. 560.60 (1v).
292.255 History
History: 1999 a. 9,
84.
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.
