Chapter 292

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)(a)5. 5. A description of the procedures under this section.

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 employees 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) (4) Negotiation process.

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.

292.35(7) (7) Responsible parties subject to an agreement or recommendation. A responsible party that enters into an agreement under sub. (5) with a local governmental unit or that accepts the umpire’s recommendation under sub. (6), if the local governmental unit does not reject the recommendation, is required to comply with the agreement or recommendation. When the responsible party has complied with the agreement or recommendation, the responsible party is not liable to the state, including under s. 292.11 (7) (b) or 292.31 (8), or to the local governmental unit for any additional costs of the investigation or remedial action; the responsible party is not liable to any other responsible party for contribution to costs incurred by any other responsible party for the investigation or remedial action; and the responsible party is not subject to an order under s. 292.11 (7) (c) for the discharge that is the subject of the agreement or recommendation.

292.35(8) (8) Responsible parties not subject to or not complying with an agreement or recommendation.

292.35(8)(a) (a) In this subsection:

292.35(8)(a)1. 1. “Interest” means interest at the annual rate of 12 percent, commencing on the date of the umpire’s recommendation under sub. (6) or, if there is no umpire’s recommendation, on the date of the agreement under sub. (5).

292.35(8)(a)2. 2. “Litigation expenses” means the sum of the costs, disbursements and expenses, including engineering fees and, notwithstanding s. 814.04 (1), reasonable attorney fees necessary to prepare for or participate in proceedings before any court.

292.35(8)(b) (b) A local governmental unit is entitled to recover litigation expenses and interest on the judgment against a responsible party if any of the following occurs:

292.35(8)(b)1. 1. The local governmental unit accepts the recommendation of an umpire under sub. (6), the responsible party rejects it and the local governmental unit recovers a judgment under sub. (9) against that responsible party that equals or exceeds the amount of the umpire’s recommendation.

292.35(8)(b)2. 2. The local governmental unit and the responsible party enter into an agreement under sub. (5) or accept the umpire’s recommendation under sub. (6), the responsible party does not comply with the requirements of the agreement or recommendation and the local governmental unit recovers a judgment against that responsible party based on the agreement or recommendation.

292.35(8)(c) (c) A responsible party is entitled to recover litigation expenses from a local governmental unit if the responsible party accepts the recommendation of an umpire under sub. (6), the local governmental unit rejects the recommendation of the umpire under sub. (6) with respect to the responsible party, the local governmental unit institutes an action under sub. (9) against the responsible party and the local governmental unit recovers a judgment under sub. (9) against the responsible party that is equal to or less than the amount of the umpire’s recommendation.

292.35(9) (9) Liability for remedial action costs.

292.35(9)(a) (a) This subsection applies only to a site or facility that satisfies the applicability provisions of sub. (2) and for which the remedial action specified in an agreement under sub. (5) or a recommendation under sub. (6) is completed.

292.35(9)(b) (b) Except as provided in pars. (bm), (br) and (e), sub. (7) and s. 292.21, a responsible party is liable for a portion of the costs, as determined under pars. (c) to (e), incurred by a local governmental unit for remedial action in an agreement under sub. (5) or a recommendation under sub. (6) and for any related investigation. A right of action shall accrue to a local governmental unit against the responsible party for costs listed in this paragraph.

292.35(9)(bm) (bm) Paragraph (b) does not apply with respect to a discharge if the discharge 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.

292.35(9)(br) (br) Paragraph (b) applies with respect to a transporter only if the transporter does any of the following:

292.35(9)(br)1. 1. Selects the site or facility where the hazardous substance is disposed of without direction from the generator.

292.35(9)(br)2. 2. Violates an applicable statute, rule, plan approval or special order in effect at the time the disposal occurred and the violation causes or contributes to the condition at the site or facility.

292.35(9)(br)3. 3. Causes or contributes to the condition at the site or facility by an action related to the disposal that would result in liability under common law in effect at the time the disposal occurred, based on standards of conduct for the transporter at the time the disposal occurred.

292.35(9)(c) (c) The liability of each party to the action to recover costs under par. (b) is limited to a percentage of the cost of the remedial action that is determined by dividing the percentage of that party’s contribution to the environmental pollution resulting from the disposal or discharge of a hazardous substance at the site or facility by the percentage of contribution of all responsible parties to the environmental pollution resulting from the disposal or discharge of a hazardous substance at the site or facility. Section 895.045 does not apply to this paragraph.

292.35(9)(cm) (cm) Notwithstanding par. (c), if 2 or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for the total contribution of all parties involved in the common scheme or plan.

292.35(9)(d) (d) The finder of fact shall apportion the contribution of each responsible party to the environmental pollution resulting from the disposal or discharge of hazardous substances at the site or facility for the purposes of par. (c), using the following criteria, and any other appropriate criteria:

292.35(9)(d)1. 1. The ability of the responsible parties to demonstrate that their contribution to the environmental pollution resulting from the disposal or discharge of hazardous substances can be distinguished from the contribution of other responsible parties.

292.35(9)(d)2. 2. The amount of hazardous substances involved.

292.35(9)(d)3. 3. The degree of toxicity of the hazardous substances involved.

292.35(9)(d)4. 4. The degree of involvement by the responsible parties in the generation, transportation, treatment, storage, disposal or discharge of the hazardous substances.

292.35(9)(d)5. 5. The degree of cooperation by the responsible parties with federal, state or local officials to prevent or minimize harm to the public health or the environment.

292.35(9)(d)6. 6. The degree of care exercised by the parties with respect to the hazardous substance, taking into account the characteristics of the hazardous substance.

292.35(9)(e) (e) A responsible party is not liable under par. (b) if the responsible party establishes by a preponderance of the evidence that the responsible party’s contribution to the environmental pollution resulting from the disposal or discharge of hazardous substances was caused solely by any of the following:

292.35(9)(e)1. 1. An act of God.

292.35(9)(e)2. 2. An act of war.

292.35(9)(e)3. 3. An act or omission of a 3rd party, other than an officer, director, employee or agent of the responsible party, or other than a person whose act or omission occurs in connection with a direct or indirect contractual relationship with the responsible party if all of the following apply:

292.35(9)(e)3.a. a. The responsible party establishes by a preponderance of the evidence that the responsible party exercised due care with respect to the hazardous substances that caused environmental pollution.

292.35(9)(e)3.b. b. In exercising due care under subd. 3. a., the responsible party took into consideration the characteristics of the hazardous substances, in light of all relevant facts and circumstances.

292.35(9)(e)3.c. c. The responsible party took precautions against foreseeable acts or omissions of the 3rd party and the consequences that could foreseeably result from those acts or omissions.

292.35(9)(f) (f) Any responsible party may seek contribution from any other responsible party. Such a contribution claim may be brought as a separate action or may be brought in the action commenced against the responsible party under this section.

292.35(10) (10) Technical assistance. The department shall provide technical assistance to an umpire at the request of the umpire. The department may limit the amount of staff time allocated to each negotiation.

292.35(11) (11) Liability. Except as provided in sub. (7), no common law liability, and no statutory liability that 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.

292.35(13) (13) Fees. The department may, by rule, assess and collect fees to offset the cost of the department’s activities under this section. 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 this section.

292.35 History History: 1995 a. 227 s. 613 to 616; 1997 a. 27; 1999 a. 150 s. 672; 2001 a. 16, 103.

292.35 Cross-reference Cross-reference: See also ch. NR 749, Wis. adm. code.

292.37 292.37 Confidentiality of records.

292.37(1) (1) Records. Except as provided under sub. (2), any records or other information furnished to or obtained by the department in the administration of ss. 292.31 and 292.35 are public records subject to s. 19.21.

292.37(2) (2) Confidential records.

292.37(2)(a) (a) Application. An owner or operator of a solid waste facility may seek confidential treatment of any records or other information furnished to or obtained by the department in the administration of ss. 292.31 and 292.35.

292.37(2)(b) (b) Standards for granting confidential status. Except as provided under par. (c), the department shall grant confidential status for any records or information received by the department and certified by the owner or operator of the solid waste facility as relating to production or sales figures or to processes or production unique to the owner or operator of the solid waste facility or which would tend to adversely affect the competitive position of the owner or operator if made public.

292.37(2)(c) (c) Emission data; analyses and summaries. The department may not grant confidential status for emission data. Nothing in this subsection prevents the department from using records and other information in compiling or publishing analyses or summaries relating to the general condition of the environment if the analyses or summaries do not identify a specific owner or operator or the analyses or summaries do not reveal records or other information granted confidential status.

292.37(2)(d) (d) Use of confidential records. Except as provided under par. (c) and this paragraph, the department or the department of justice may use records and other information granted confidential status under this subsection only in the administration and enforcement of ss. 292.31 and 292.35. The department or the department of justice may release for general distribution records and other information granted confidential status under this subsection if the owner or operator expressly agrees to the release. The department or the department of justice may release on a limited basis records and other information granted confidential status under this subsection if the department or the department of justice is directed to take this action by a judge or hearing examiner under an order which protects the confidentiality of the records or other information. The department or the department of justice may release to the U.S. environmental protection agency, or its authorized representative, records and other information granted confidential status under this subsection if the department or the department of justice includes in each release of records or other information a request to the U.S. environmental protection agency, or its authorized representative, to protect the confidentiality of the records or other information.

292.37 History History: 1995 a. 227 s. 993.

292.41 292.41 Abandoned containers.

292.41(1) (1) Definition. In this section, “abandoned container” means any container which contains a hazardous substance and is not being monitored and maintained.

292.41(2) (2) Applicability.

292.41(2)(a) (a) This section does not apply to abandoned containers which are located in an approved facility or a nonapproved facility.

292.41(2)(b) (b) Action by the department under this section is not subject to s. 292.31.

292.41(3) (3) Contingency plan.

292.41(3)(a) (a) After consultation with other affected federal, state and local agencies and private organizations, the department shall establish by rule criteria and procedures for the development, establishment and amendment of a contingency plan for the taking of emergency actions in relation to abandoned containers.

292.41(3)(b) (b) The contingency plan shall establish procedures and techniques for locating, identifying, removing and disposing of abandoned containers.

292.41(4) (4) Removal or other emergency action. The department or its authorized representative may contain, remove or dispose of abandoned containers or take any other emergency action which it deems appropriate under the circumstances.

292.41(5) (5) Access to property and records. Any officer, employee or authorized representative of the department, upon notice to the owner or occupant, may enter onto any property, premises or place at any time for the purposes of sub. (3) if the entry is necessary to prevent increased damage to the air, land or waters of the state, or may inspect any record relating to abandoned container management for the purpose of ascertaining the state of compliance with this section and the rules promulgated under this section. Notice to the owner or occupant is not required if the delay in providing the notice is likely to result in imminent risk to public health or welfare or the environment.

292.41(6) (6) Abandoned containers; appropriations.

292.41(6)(a) (a) The department may utilize moneys appropriated under s. 20.370 (4) (dv) and (ms) in taking action under sub. (4). The department shall utilize these moneys to provide for the procurement, maintenance, and storage of necessary equipment and supplies, personnel training, and expenses incurred in locating, identifying, removing, and disposing of abandoned containers.

292.41(6)(b) (b) No more than 25 percent of the total of all moneys available under the appropriation under s. 20.370 (4) (dv) and (ms) may be used annually for the procurement and maintenance of necessary equipment during that fiscal year.

292.41(6)(c) (c) The department is entitled to recover moneys expended under this section from any person who caused the containers to be abandoned or is responsible for the containers. The funds recovered under this paragraph shall be deposited into the environmental fund for environmental management.

292.41 History History: 1983 a. 410; 1985 a. 29 ss. 1957, 3202 (39); 1987 a. 27, 384; 1989 a. 31; 1991 a. 39; 1993 a. 453; 1995 a. 27; 1995 a. 227 s. 716; Stats. 1995 s. 292.41; 1995 a. 378 s. 46; 1997 a. 27; 2017 a. 59.

292.41 Cross-reference Cross-reference: See also ch. NR 714, Wis. adm. code.

292.51 292.51 Cooperative remedial action.

292.51(1) (1) In this section, “costs of remedying environmental contamination” means costs determined by the department to be necessary to reduce or eliminate environmental contamination and restore the environment, including costs of investigation and of providing public information and education related to reducing or eliminating environmental contamination and restoring the environment.

292.51(2) (2) The department may seek and receive voluntary contributions of funds from a municipality or any other public or private source for all or part of the costs of remedying environmental contamination if the activities being funded are part of a cooperative effort, by the department and the person providing the funds, to remedy that environmental contamination. All contributions received under this subsection shall be deposited in the environmental fund.

292.51(2m) (2m) Any person engaged in a cooperative effort with the department that is described in sub. (2) may seek and receive voluntary contributions of funds on behalf of the effort.

292.51(3) (3) Provision of funding under sub. (2) or (2m) is not evidence of liability or an admission of liability for any environmental contamination.

292.51(4) (4) In carrying out its regulatory and enforcement duties, the department may not base its treatment of a person on whether the person did or did not provide funding under sub. (2).

292.51 History History: 1995 a. 27; 1995 a. 227 s. 824; Stats. 1995 s. 292.51; 1997 a. 27.

292.53 292.53 Availability of environmental insurance. The department, in cooperation with the department of administration, may undertake activities to make private environmental insurance products available to encourage and facilitate the cleanup and redevelopment of contaminated property. The department of natural resources may negotiate with, select, and contract with one or more insurers to provide insurance products under this section, subject to the approval of the department of administration under s. 16.865 (5).