Chapter 292

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).

292.53 History History: 2003 a. 315.

292.55 292.55 Requests for liability clarification and technical assistance.

292.55(1) (1) 

292.55(1)(a) (a) The department may, upon request, assist a person to determine whether the person is or may become liable for the environmental pollution of a property.

292.55(1)(b) (b) The department may, upon request, assist in, or provide comments on, the planning and implementation of an environmental investigation of a property or the environmental cleanup of a property.

292.55(1)(c) (c) The department may determine whether further action is necessary to remedy environmental pollution of a property.

292.55(1)(d) (d) The department may issue a letter to a person seeking assistance under this subsection concerning any of the following:

292.55(1)(d)1. 1. The liability of a person owning or leasing a property for environmental pollution of the property.

292.55(1)(d)2. 2. The type and extent of environmental pollution of a property.

292.55(1)(d)3. 3. The adequacy of an environmental investigation.

292.55(1)(d)4. 4. Any other matter related to the request for assistance under this subsection.

292.55(2) (2) The department may assess and collect fees from a person to offset the costs of providing assistance under sub. (1). The department shall promulgate rules for the assessment and collection of fees under this subsection. Fees collected under this subsection shall be credited to the appropriation account under s. 20.370 (4) (dh).

292.55 History History: 1997 a. 27; 2017 a. 59.

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

292.57 292.57 Database of properties with residual contamination.

292.57(1) (1) In this section, “groundwater standard” means an enforcement standard, as defined in s. 160.01 (2), or a preventive action limit, as defined in s. 160.01 (6).

292.57(2) (2) 

292.57(2)(a) (a) The department may promulgate a rule specifying a fee for placing information into a database concerning a property on which a groundwater standard is exceeded, a property on which residual contamination is present in soil, or a property that is subject to s. 292.12 (3) (b). The department may also specify a fee for modifying information in the database.

292.57(2)(b) (b) Any moneys collected under this subsection shall be credited to the appropriation account under s. 20.370 (4) (dh).

292.57 History History: 1999 a. 9; 2005 a. 25, 418; 2017 a. 59.

292.63 292.63 Petroleum storage remedial action; financial assistance.

292.63(1) (1) Definitions. In this section:

292.63(1)(ad) (ad) “Bodily injury” does not include those liabilities which are excluded from coverage in liability insurance policies for bodily injury other than liabilities excluded because they are caused by a petroleum product discharge from a petroleum product storage system.

292.63(1)(bm) (bm) “Enforcement standard” has the meaning given in s. 160.01 (2).

292.63(1)(c) (c) “Groundwater” has the meaning designated under s. 281.75 (1) (c).

292.63(1)(cm) (cm) “Home oil tank system” means an underground home heating oil tank used for consumptive use on the premises together with any on-site integral piping or dispensing system.

292.63(1)(cq) (cq) “Natural attenuation” means the reduction in the concentration and mass of a substance, and the products into which the substance breaks down, due to naturally occurring physical, chemical and biological processes.

292.63(1)(cs) (cs) “Occurrence” means a contiguous contaminated area resulting from one or more petroleum products discharges.

292.63(1)(d) (d) “Operator” means any of the following:

292.63(1)(d)1. 1. A person who operates a petroleum product storage system, regardless of whether the system remains in operation and regardless of whether the person operates or permits the use of the system at the time environmental pollution occurs.

292.63(1)(d)2. 2. A subsidiary or parent corporation of the person specified under subd. 1.

292.63(1)(e) (e) “Owner” means any of the following:

292.63(1)(e)1. 1. A person who owns, or has possession or control of, a petroleum product storage system, or who receives direct or indirect consideration from the operation of a system regardless of whether the system remains in operation and regardless of whether the person owns or receives consideration at the time environmental pollution occurs.

292.63(1)(e)2. 2. A subsidiary or parent corporation of the person specified under subd. 1.