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, employee 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)(am)1.1. The department may accept the transfer of an interest in property that was acquired by the federal environmental protection agency as part of a remedial action under the federal Comprehensive Environmental Response, Compensation, and Liability Act,
42 USC 9601 to
9675.
292.31(7)(am)2.
2. The department may acquire an interest in property from any person as part of a remedial action conducted in cooperation with the federal environmental protection agency if the acquisition is necessary to implement the remedy. Under this subdivision, the department may acquire an interest in property that is necessary to ensure that restrictions on the use of land or groundwater are enforceable. The department may expend moneys from the appropriations under
ss. 20.370 (2) (dv) and
20.866 (2) (tg) if necessary to compensate a person for an interest in property acquired by the department under this subdivision.
292.31(7)(am)3.
3. The department may enforce the terms of any interest in property that it acquires under this paragraph.
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.
292.33
292.33
Local government cost recovery cause of action. 292.33(2)
(2) Cause of action. Except as provided in
sub. (6), a local governmental unit may recover costs as provided in
sub. (4) from a responsible person described in
sub. (3) if the costs are incurred in connection with a property acquired as provided in
s. 292.11 (9) (e) 1m. on which a hazardous substance has been discharged.
292.33(3)(a)(a) Except as provided in
par. (b), a local governmental unit may recover costs in an action under this section from any of the following:
292.33(3)(a)1.
1. A person who, at the time that the local governmental unit acquired the property, possessed or controlled the hazardous substance that was discharged on the property.
292.33(3)(a)2.
2. A person who caused the discharge of the hazardous substance on the property.
292.33(3)(b)
(b) A local governmental unit may not recover costs in an action under
sub. (2) from a person listed in
par. (a) if any of the following applies:
292.33(3)(b)2.
2. The person has entered into a consent order under this chapter or
ch. 289 or
291 or an agreement under
s. 292.11 (7) (d) or
292.31 (8) (h) with respect to the discharge that is the subject of the action and the person is in compliance with the consent order or agreement.
292.33(3)(b)3.
3. The person is exempt from liability under
s. 292.35 (9) (e) with respect to the discharge that is the subject of the action.
292.33(3)(b)4.
4. The discharge that was caused by the person and that is the subject of the action was in compliance with a permit, license, approval, special order, waiver or variance issued under
ch. 283 or
285 or under corresponding federal statutes or regulations.
292.33(4)(a)(a) Except as provided in
par. (b), in an action under this section a local governmental unit may recover the reasonable and necessary costs that it incurs for all of the following:
292.33(4)(a)1.
1. Investigating environmental contamination on the property and planning remedial activities described in
subd. 2.
292.33(4)(a)2.
2. Conducting remedial activities to restore the property for its intended future use.
292.33(4)(a)3.
3. Administering the activities under
subds. 1. and
2. and bringing the action under this section, including costs, disbursements and engineering fees but excluding attorney fees.
292.33(4)(b)
(b) The costs determined under
par. (a) shall be reduced by the fair market value of the property after completion of the activities under
par. (a) 2.
292.33(4)(c)
(c) Recoverable costs under this subsection may not be reduced by the amount of any state or federal moneys received by the local governmental unit for any of the activities under
par. (a).
292.33(4)(d)1.1. In an action under this section, the liability of a responsible person described in
sub. (3) (a) 2. is limited to the amount that bears the same proportion to the total costs under
par. (a), adjusted as provided in
par. (b), as the amount of the environmental pollution on the property from the discharge caused by the responsible person bears to all of the environmental pollution on the property from discharges of hazardous substances.
292.33(4)(d)2.
2. In an action under this section, the liability of a responsible person described in
sub. (3) (a) 1. is limited to the amount of the total costs under
par. (a), adjusted as provided in
par. (b), that the local governmental unit is unable to recover from responsible parties described in
sub. (3) (a) 2. less the amount that the local governmental unit is unable to recover because of the exemptions in
sub. (3) (b) 3. and
4.
292.33(5)
(5) Repaying state assistance. If a local governmental unit that recovers costs under this section received money from this state, other than under
s. 292.11 (7) or
292.31 (1),
(3) or
(7), for any of the activities under
sub. (4) (a), the local governmental unit shall reimburse to the state an amount that bears the same proportion to the total amount recovered under this section as the amount received from the state, other than under
s. 292.11 (7) or
292.31 (1),
(3) or
(7), bears to the total costs under
sub. (4) (a) adjusted as provided in
sub. (4) (b).
292.33(6)
(6) Exception. A local governmental unit may not recover costs under this section for remedial activities conducted on a property or portion of a property with respect to a discharge after the department of natural resources, the department of commerce or the department of agriculture, trade and consumer protection has indicated that no further remedial activities are necessary on the property or portion of the property with respect to the discharge.
292.33(7)
(7) Limitation of action. An action under this section shall be commenced within 6 years after the date that the local governmental unit completes the activities under
sub. (4) (a) 2. or be barred.
292.33 History
History: 1999 a. 9.
292.35
292.35
Local governmental unit negotiation and cost recovery. 292.35(1)(am)
(am) "Financial assistance" means money, other than a loan, provided by a governmental unit that is not a responsible party to pay a portion of the cost of investigation and remedial action for a site or facility.
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. 66.1333 or a public body designated by a municipality under
s. 66.1337 (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 one of the following criteria is satisfied:
292.35(2)(a)
(a) The site or facility is owned by a local governmental unit.
292.35(2)(b)
(b) A local governmental unit that owns a portion of the site or facility commits itself, by resolution of its governing body, to paying more than 50% of the amount equal to the difference between the cost of investigation and remedial action for the site or facility and any financial assistance received for the site or facility.
