Chapter 323

323.54 Note NOTE: Sub. (1) is amended by 2009 Wis. Act 42, effective the day after the secretary of state notifies the legislature that an amendment to the Wisconsin Constitution has been approved that requires the legislature to provide for temporary succession to the powers and duties of public offices for the period of an emergency resulting from a cause other than an enemy action, to read as follows:

Effective date text (1) The governing body of any political subdivision may enact ordinances and resolutions to provide a method by which interim appointments to public office are made during periods of emergency to fill vacancies in offices that result from a disaster or the imminent threat of a disaster. The ordinances or resolutions shall define the scope of the powers and duties that interim appointees may exercise, and shall provide for termination of the interim appointments.

323.54(2) (2) Each officer of a political subdivision for whom an interim successor is not determined by ordinance or resolution adopted under sub. (1) shall, subject to such regulations as the executive head of the political subdivision issues, designate by title, if feasible, or by named person, interim successors and specify their order of succession. The officer shall review and revise, as necessary, designations made pursuant to this section to ensure their current status. The officer shall designate a sufficient number of persons so that there will be not fewer than 3 nor more than 7 deputies or interim successors or any combination at any time. If any officer of any political subdivision or his or her deputy provided for pursuant to law is unavailable, the powers of the office shall be exercised and duties shall be discharged by his or her designated interim successors in the order specified. The interim successor shall exercise the powers and discharge the duties of the office to which designated until the vacancy that exists is filled in accordance with the constitution or statutes or until the officer or his or her deputy or a preceding interim successor again becomes available to exercise the powers and discharge the duties of his or her office.

323.54 History History: 2009 a. 42 ss. 130, 131, 144, 315; Stats. 2009 s. 323.54.

323.55 323.55 Interim successors.

323.55(1) (1) Status and qualifications of designees. No person may be designated or serve as an interim successor under this subchapter unless he or she is eligible under the constitution and statutes to hold the office to which powers and duties he or she is designated to succeed, but no statutory provision prohibiting local or state officials from holding another office shall be applicable to an interim successor.

323.55(2) (2) Formalities of taking office. Interim successors shall take any oath required for them to exercise the powers and discharge the duties of the office to which they may succeed. No person, as a prerequisite to the exercise of the powers or discharge of the duties of an office to which he or she succeeds, shall be required to comply with any other provision of law relative to taking office.

323.55(3) (3) Period during which authority may be exercised. An interim successor to an office may discharge the duties of the office only during the continuance of an emergency resulting from enemy action in the form of an attack. The legislature, by joint resolution, may at any time terminate the authority of an interim successor to exercise the powers and discharge the duties of office provided in this subchapter.

323.55 Note NOTE: Sub. (3) is amended by 2009 Wis. Act 42, effective the day after the secretary of state notifies the legislature that an amendment to the Wisconsin Constitution has been approved that requires the legislature to provide for temporary succession to the powers and duties of public offices for the period of an emergency resulting from a cause other than an enemy action, to read as follows:

Effective date text (3) Period during which authority may be exercised. An interim successor to an office may discharge the duties of the office only during the continuance of an emergency resulting from a disaster or the imminent threat of a disaster. The legislature, by joint resolution, may at any time terminate the authority of an interim successor to exercise the powers and discharge the duties of office provided in this subchapter.

323.55(4) (4) Removal of designees. Until such time as the persons designated as interim successors are authorized to exercise the powers and discharge the duties of an office in accordance with this subchapter, those persons shall serve in their designated capacities at the pleasure of the designating authority.

323.55(5) (5) Disputes. Any dispute concerning a question of fact arising under this subchapter with respect to an office in the executive branch of the state government, except a dispute of fact relative to the office of governor, shall be adjudicated by the governor or other official authorized under the constitution or this subchapter to exercise the powers and discharge the duties of the office of governor and his or her decision shall be final.

323.55 History History: 2009 a. 42 ss. 145 to 149, 316, 317; Stats. 2009 s. 323.55.

subch. VI of ch. 323 SUBCHAPTER VI

EMERGENCY PLANNING

323.60 323.60 Hazardous substances information and emergency planning.

323.60(1) (1) Definitions. In this subchapter:

323.60(1)(b) (b) “Committee” means a local emergency planning committee created under s. 59.54 (8) (a).

323.60(1)(c) (c) “Facility” means the buildings and contiguous area of a single location which is owned, operated or controlled by the same person and used for conducting the activities of a public or private agency, or as defined in 42 USC 11049 (4).

323.60(1)(d) (d) “Facility plan” means a plan for response to the release of hazardous substances from a specific facility, prepared as a component of a local emergency response plan under sub. (5) (a) and under 42 USC 11003.

323.60(1)(e) (e) “Federal act” means 42 USC 11000 to 11050.

323.60(1)(f) (f) “Hazardous chemical” means a hazardous chemical covered under 42 USC 11021 and 11022 as defined under 29 CFR 1910.1200 (c).

323.60(1)(g) (g) “Hazardous substance” means an extremely hazardous substance included in the list published by the administrator of the U.S. environmental protection agency under 42 USC 11002 (a) (2) or a hazardous substance as defined under 42 USC 9601 (14) or designated by the administrator of the U.S. environmental protection agency under 42 USC 9602 (a).

323.60(1)(gm) (gm) “Minerals” mean unbeneficiated metallic ore but does not include mineral aggregates such as stone, sand, and gravel.

323.60(1)(h) (h) “Private agency” means a privately owned and operated research facility or educational institution.

323.60(1)(i) (i) “Public agency” means a state or local office, agency, board, commission, committee, council, department, research facility, educational institution or public body corporate or politic created by constitution, law, ordinance, rule or order, or a governmental or quasi-governmental corporation.

323.60(1)(j) (j) “Threshold quantity” means a designated quantity of any of the following:

323.60(1)(j)1. 1. A hazardous chemical which, if used by or present at a facility, makes the facility subject to the requirements of sub. (5) (c).

323.60(1)(j)2. 2. A toxic chemical which, if used by or present at a facility, makes the facility subject to the requirements of sub. (5) (d).

323.60(1)(k) (k) “Toxic chemical” means a toxic chemical covered under 42 USC 11023 (c).

323.60(2) (2) Duties of the division. The division shall do all of the following:

323.60(2)(a) (a) Serve as the state emergency response commission under the federal act.

323.60(2)(b) (b) Promulgate rules necessary for the implementation of the federal act.

323.60(2)(bg) (bg) Promulgate rules establishing an amount not to exceed $6,000 that may be an eligible cost for computers in an emergency planning grant under s. 323.61 (2) (br).

323.60(2)(c) (c) Oversee the implementation of local emergency response plans by committees and provide assistance to committees in executing their duties under sub. (3) (b) to the greatest extent possible.

323.60(2)(d) (d) Administer the grant program under s. 323.61.

323.60(2)(e) (e) At least annually, submit a report to the governor indicating whether each county has a committee and whether the composition of each committee conforms to 42 USC 11001 (c).

323.60(2)(f) (f) If the composition of a county’s committee does not conform to 42 USC 11001 (c), inform the county board of that fact and of the county board’s duty, under s. 59.54 (8) (a) 1., to create a committee with members as specified in 42 USC 11001 (c).

323.60(3) (3) Duties of committees. A committee shall do all of the following:

323.60(3)(a) (a) Carry out all requirements of a committee under the federal act.

323.60(3)(b) (b) Upon receipt by the committee or the committee’s designated community emergency coordinator of a notification under sub. (5) (b) of the release of a hazardous substance, take all actions necessary to ensure the implementation of the local emergency response plan.

323.60(3)(c) (c) Consult and coordinate with the county board, the county and local heads of emergency management designated under s. 323.14 (1) (a) 2. or (b) 2. and the county emergency management committee designated under s. 323.14 (1) (a) 3. in the execution of the local emergency planning committee’s duties under this section.

323.60(4) (4) Duties of the department of natural resources. The department of natural resources shall:

323.60(4)(a) (a) Upon receipt of a notification under sub. (5) (b) or s. 292.11 (2) of the release of a hazardous substance, provide all information contained in the notification to the division.

323.60(4)(b) (b) Have the same powers and duties at the time of a release of a hazardous substance as are given to it under s. 292.11, including the investigation of releases of hazardous substances, the repair of any environmental damage which results from the release and the recovery of costs from responsible parties. The department of natural resources may also, at the time of a release of a hazardous substance, identify and recommend to the division and the committee measures to lessen or mitigate anticipated environmental damage resulting from the release.

323.60(4)(c) (c) Use the information contained in toxic chemical release forms submitted under sub. (5) (d) in the planning and implementation of programs related to the regulation, monitoring, abatement and mitigation of environmental pollution.

323.60(4m) (4m) Cooperation. A state agency, federally recognized American Indian tribe or band, or local governmental unit may assist the division or a committee in the performance of its duties under this section and may enter into an agreement with the division or a committee.

323.60(5) (5) Notification and reporting requirements.

323.60(5)(a) (a) All facilities in this state covered under 42 USC 11002 shall comply with the emergency planning and notification requirements under 42 USC 11002 and 11003.

323.60(5)(b) (b) All facilities in this state covered under 42 USC 11004 shall comply with the notification requirements of 42 USC 11004. Notification of the department of natural resources of the discharge of a hazardous substance under s. 292.11 (2) shall constitute the notification of the division required under 42 USC 11004 if the notification contains the information specified in 42 USC 11004 (b) (2) or (c).

323.60(5)(c) (c) All facilities in this state covered under 42 USC 11021 and all public agencies and private agencies in this state at which a hazardous chemical is present at or above an applicable threshold quantity shall comply with the reporting requirements under 42 USC 11021 and 11022. The division shall implement minimum threshold levels for reporting by retail gas stations that are identical to the minimum threshold levels for reporting under 42 USC 11021 and 11022.

323.60(5)(d) (d) The following facilities shall comply with the toxic chemical release form requirements under 42 USC 11023 and shall submit copies of all toxic chemical release forms to the department of natural resources:

323.60(5)(d)1. 1. All facilities subject to 42 USC 11023.

323.60(5)(d)2. 2. All public agencies and private agencies at which a toxic chemical is used at or above an applicable threshold quantity.

323.60(5)(d)3. 3. All facilities with 10 or more employees in major group classifications 10 to 13 in the standard industrial classification manual, 1987 edition, published by the U.S. office of management and budget, at which a toxic chemical is used at or above an applicable threshold quantity, except that compliance with the toxic chemical release form requirements under this subdivision is not required for the placement of a toxic chemical in a storage or disposal site or facility that is located at a facility with a permit under ch. 293 or a mining permit under subch. III of ch. 295 if the toxic chemical consists of or is contained in merchantable by-products, as defined in s. 293.01 (7) or 295.41 (25), minerals, or refuse, as defined in s. 293.01 (25) or 295.41 (41).

323.60(5)(e) (e) The reporting procedures for trade secrets under 42 USC 11042 shall apply to all facilities in this state subject to the requirements under par. (a), (c), or (d). For the purposes of applying this paragraph to public agencies and private agencies, the division shall have the powers and duties granted to the administrator of the U.S. environmental protection agency under 42 USC 11042.

323.60(5)(f) (f) All facilities in this state subject to the requirements under par. (c) or (d) shall comply with the procedures for providing information under 42 USC 11043.

323.60(5m) (5m) Furnishing information. If the division or a committee requests, in writing, information relating to the federal act or to this section, a facility shall furnish the information in the manner requested.

323.60(6) (6) Threshold quantities. Threshold quantities for the facilities of public agencies and private agencies shall be identical to the threshold quantities established by the federal act or by regulations promulgated under the federal act.

323.60(7) (7) Facility fees.

323.60(7)(a) (a) The division shall establish, by rule, the following fees at levels designed to fund the division’s administrative expenses and the grants under s. 323.61:

323.60(7)(a)1. 1. An emergency planning notification fee to be paid when a facility makes the emergency planning notification required under sub. (5) (a).

323.60(7)(a)2. 2. An inventory form fee to be paid annually when a facility submits the emergency and hazardous chemical inventory forms required under sub. (5) (c).

323.60(7)(b) (b) The operator of a facility subject to the requirements of sub. (5) (a) or (c) shall pay the fees under par. (a). The division may establish, by rule, a surcharge to be paid by the operator of a facility if the operator fails to pay the fees under par. (a) in a timely manner. The surcharge under this paragraph shall not exceed 20 percent of the original fee.

323.60(7)(d) (d) The operator of a facility, including a facility engaged in farming, as defined in s. 102.04 (3), is exempt from the fees under par. (a) if the operator of the facility employs fewer than the equivalent of 10 full-time employees in this state.

323.60(7)(dm) (dm) The operator of a facility at which petroleum products are received by tank truck, tank trailer, or railroad tank car and stored for resale is exempt from the fees under par. (a) 2. with respect to gasoline and diesel fuel present at that facility.

323.60(7)(e) (e) All moneys received under this subsection shall be credited to the appropriations under s. 20.465 (3) (i) and (jm).

323.60(7m) (7m) Inspections.

323.60(7m)(a) (a) An authorized inspector of the division or the committee for the county in which a facility is located may enter and inspect any facility or any pertinent record relating to the facility at any reasonable time for the purpose of determining whether the facility is complying with this section and rules promulgated under this section. The division or committee, if requested, shall furnish to the operator of the facility a report setting forth all facts found which relate to compliance with this section and rules promulgated under this section.

323.60(7m)(b) (b) The division shall promulgate rules to specify how the division or a committee may authorize inspectors for the purposes of par. (a). The rules shall include requirements for experience or training of individuals authorized to conduct inspections.

323.60(8) (8) Enforcement.

323.60(8)(a) (a) The department of justice, at its own discretion or at the request of the division or the committee or district attorney for the county in which the violation is alleged to have occurred, shall enforce subs. (2) to (7) and rules promulgated under subs. (2) to (7). In any action commenced under this paragraph, the department of justice may request the assistance of the district attorney for the county in which the violation is alleged to have occurred and the district attorney shall provide the requested assistance, except that, for a violation that is alleged to have occurred within the boundaries of a federally recognized Indian reservation or on land that is held in trust by the federal government for the benefit of an American Indian tribe or band, only the department of justice may enforce subs. (2) to (7) and rules promulgated under subs. (2) to (7).

323.60(8)(b) (b) In addition to any other relief granted, the court may grant injunctive relief to restrain violations of subs. (2) to (7) and rules promulgated under subs. (2) to (7).

323.60(9) (9) Suits.

323.60(9)(a) (a) Except as provided in par. (b):

323.60(9)(a)1. 1. Any person may commence a civil action on his or her behalf against any of the following:

323.60(9)(a)1.a. a. Any person for failure to submit a follow-up emergency notice under 42 USC 11004 (c), as applied under sub. (5) (b).

323.60(9)(a)1.b. b. Any person for violation of sub. (5) (c) or (d).

323.60(9)(a)1.c. c. The division for failure to render a decision in response to a petition under 42 USC 11042 (d), as applied under sub. (5) (e), within 9 months after receipt of the petition.

323.60(9)(a)1.d. d. The division for failure to provide a mechanism for public availability of information in accordance with 42 USC 11044 (a), as applied under sub. (2) (a).

323.60(9)(a)1.e. e. The division for failure to respond to a request for information under 42 USC 11022 (e) (3), as applied under sub. (2) (a).

323.60(9)(a)2. 2. The division or any local unit of government may commence a civil action against any person for failure to do any of the following:

323.60(9)(a)2.a. a. Provide notification to the division under 42 USC 11002 (c), as applied under sub. (5) (a).

323.60(9)(a)2.b. b. Submit the information required under 42 USC 11021 (a) or 11022 (a), as applied by sub. (5) (c).

323.60(9)(a)2.c. c. Make available information requested under 42 USC 11021 (c), as applied under sub. (5) (c).

323.60(9)(a)3. 3. The division or any committee may commence an action against any person for failure to provide the information required under 42 USC 11003 (d), as applied under sub. (5) (a) or any information required under 42 USC 11022 (e) (1), as applied under sub. (5) (c).

323.60(9)(b) (b)

323.60(9)(b)1. 1. No action may be commenced against any person other than the division under this subsection under any of the following circumstances:

323.60(9)(b)1.a. a. If fewer than 60 days have elapsed since the plaintiff gave notice of the alleged violation to the division and to the alleged violator.