Chapter 323

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.

323.60(9)(b)1.b. b. If the department of justice has commenced and is diligently prosecuting a civil action against the alleged violator, but in any such action any resident of this state may intervene as a matter of right.

323.60(9)(b)2. 2. No action may be commenced against the division under this subsection if fewer than 60 days have elapsed since the plaintiff gave notice of the action to the division.

323.60(9)(c) (c) In addition to any other relief granted, the court may grant injunctive relief to restrain the violations alleged in the pleadings.

323.60(10) (10) Venue. A proceeding under sub. (8) or (9) may be brought in the circuit court for Dane County, for the county in which the defendant is located or for the county in which the violation is alleged to have occurred.

323.60(11) (11) Penalties.

323.60(11)(a) (a) Any person who violates sub. (5) (a), (b), or (d), or the emergency and hazardous chemical inventory form requirements of 42 USC 11022, as applied under sub. (5) (c), or any rule promulgated under sub. (5) (a), (b), or (d), or concerning emergency and hazardous chemical inventory form requirements shall forfeit not less than $100 nor more than $25,000. Total forfeitures for the failure of a facility to report multiple releases of hazardous substances covered under 42 USC 11004, as applied under sub. (5), shall not exceed $75,000 per day of offense.

323.60(11)(b) (b) Any person who knowingly and willfully fails to report the release of a hazardous substance covered under 42 USC 11004 as required under sub. (5) (b) or any rule promulgated under sub. (5) (b) is subject to the following penalties:

323.60(11)(b)1. 1. For the first offense, the person is guilty of a Class I felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (i), the person may be fined not more than $25,000.

323.60(11)(b)2. 2. For the 2nd and subsequent offenses, the person is guilty of a Class I felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (i), the person may be fined not more than $50,000.

323.60(11)(c) (c) Any person who violates sub. (5) (e) or (f) or the safety data sheet requirements of 42 USC 11021, as applied under sub. (5) (c), or any rule promulgated under sub. (5) (e) or (f) or concerning safety data sheet requirements shall forfeit not less than $50 nor more than $10,000.

323.60(11)(d) (d) Any person who knowingly and willfully releases a trade secret entitled to protection under 42 USC 11042, as applied under sub. (5) (e), shall be fined not less than $100 nor more than $20,000 or imprisoned for not more than one year in the county jail or both.

323.60(11)(dg) (dg) Except as provided in this paragraph, any person who negligently makes a false statement or representation in any document provided by the operator of a facility or required to be maintained by the operator of a facility under the federal act, this section or rules promulgated under this section shall forfeit not less than $100 nor more than $25,000. This penalty does not apply to the division, a committee or a member of the division or a committee.

323.60(11)(dr) (dr) Any person who violates any provision of this section or any rule promulgated under this section for which no penalty is provided under pars. (a) to (dg) shall forfeit not more than $20,000.

323.60(11)(e) (e) For the purposes of this subsection, each day of continued violation constitutes a separate offense.

323.60 History History: 1987 a. 342; 1989 a. 31, 115, 359; 1991 a. 39, 104, 189; 1993 a. 240, 253; 1995 a. 13, 113, 201, 227, 247; 1997 a. 27, 283; 1999 a. 9, 185; 2001 a. 16, 109; 2009 a. 42 ss. 157 to 161, 163, 168, 170 to 175, 179 to 192, 193 to 203, 205, 206; Stats. 2009 s. 323.60; 2013 a. 1; 2021 a. 243.

323.60 Cross-reference Cross-reference: See also chs. WEM 1, 2, 3, and 5, Wis. adm. code.

323.60 Annotation State Emergency Response Board committee members are entitled to indemnity for damage liability under s. 895.46 and legal representation by the attorney general under s. 165.25. 81 Atty. Gen. 17.

323.60 Annotation The authority and responsibility of local units of government to respond to Level B hazardous substance releases is discussed. OAG 1-99.

323.61 323.61 Emergency planning grants.

323.61(1) (1) General.

323.61(1)(a) (a) There is created an emergency planning grant program for the purpose of assisting committees to comply with the requirements of s. 323.60 and the federal act.

323.61(1)(b) (b) Any committee may apply annually to the division for an emergency planning grant. Applications shall be made in the manner specified by the division.

323.61(2) (2) Eligible costs. Eligible costs for emergency planning grants are limited to the cost of all of the following:

323.61(2)(a) (a) Maintaining emergency response plans required under 42 USC 11003, including the cost of maintaining facility plans.

323.61(2)(b) (b) Reviewing, exercising and implementing emergency response plans required under 42 USC 11003.

323.61(2)(br) (br) Subject to sub. (2m), 80 percent of the costs of computers and emergency response equipment, but not to exceed $10,000. In-kind contributions may be used to meet the committee’s contribution under this paragraph.

323.61(2)(c) (c) Committee operation and administration, including the cost of supplies and equipment reasonably necessary for committee operation and administration, but excluding the cost of computers and emergency response equipment.

323.61(2)(d) (d) Any other activity of the committee required under s. 323.60 or the federal act.

323.61(2)(dm) (dm) Hazardous materials response supplies.

323.61(2)(e) (e) The portion of a previous year’s costs that was approved by the division but not paid because of insufficient funds.

323.61(2m) (2m) Strategic plan. A committee is eligible for grant funds under sub. (2) (br) for emergency response equipment only if it submits to the division a strategic plan for emergency response to hazardous substance releases that includes all of the following:

323.61(2m)(a) (a) An analysis of the risks of hazardous substance releases in the county.

323.61(2m)(b) (b) Identification of the existing capability for emergency response to hazardous substance releases in the county.

323.61(2m)(c) (c) An assessment of needs, including equipment and training needs, related to emergency response to hazardous substance releases in the county.

323.61(2m)(d) (d) A process to maintain or increase the capability for emergency response to hazardous substance releases in the county.

323.61(2m)(e) (e) Identification of a local emergency response team that is capable of responding to a level B release that occurs at any place in the county and whose members meet the standards for hazardous materials technicians in 29 CFR 1910.120 (q) (6) (iii) and national fire protection association standards NFPA 471 and 472.

323.61(2m)(f) (f) Procedures for local emergency response team actions that are consistent with local emergency response plans developed under s. 323.60 (3) and the state contingency plan established under s. 292.11 (5).

323.61(3) (3) Grant amount.

323.61(3)(a) (a) Emergency planning grants shall not exceed the sum of the following amounts:

323.61(3)(a)1. 1. The costs of each new facility plan completed by the committee and approved by the division in the period covered by the grant.

323.61(3)(a)2. 2. All costs incurred by the committee in the period covered by the grant related to subs. (2) (b) to (dm) and (2m).

323.61(3)(a)3. 3. The portion of a previous year’s costs that was approved by the division but not paid because of insufficient funds.

323.61(3)(b) (b) The division shall reduce the grant amount calculated under par. (a) by the amount of any other gifts or grants received by the committee in the period covered by the grant for costs incurred by the committee related to sub. (2).

323.61(3)(c) (c) Notwithstanding sub. (2), the division shall deny that portion of a grant calculated under par. (a) 2. if the division determines that the committee has failed to meet grant obligations, including the development, review, exercise or implementation of local emergency response plans as required under s. 323.60 or the federal act.

323.61(3)(e) (e) Annually, the division shall establish a formula to determine the amount of emergency planning grant funds available to each county.

323.61(4) (4) Payment of grants. Annually, the division shall review all applications received under this section and make grants to committees from the appropriations under s. 20.465 (3) (jm) and (r). If insufficient funds are available to pay all approved grants, the division shall prorate the available funds among the eligible applicants in proportion to the approved grant amounts. A prorated payment shall be deemed full payment of the grant.

323.61(5) (5) Payment in advance.

323.61(5)(a) (a) The division may pay a portion of a grant before the end of the period covered by the grant if a committee requests the advance payment and if the division determines that the necessary funds are available and that the advance payment will not result in insufficient funds to pay other grants.

323.61(5)(b) (b) The division may pay an amount up to 50 percent of anticipated eligible costs covered by a grant up to 12 months before the end of the period covered by the grant. The division may pay an additional amount up to 25 percent of anticipated eligible costs up to 6 months before the end of the period covered by the grant. The division shall determine anticipated eligible costs from a budget submitted by the committee at the time that the committee requests payment in advance.

323.61(5)(c) (c) If a committee receives advance payments under this subsection which exceed the total grant amount calculated under sub. (3), the division shall subtract the amount of the overpayment from the amount of a grant paid to that committee in the next year that the committee receives a grant.

323.61 History History: 1987 a. 342; 1989 a. 31, 115; 1991 a. 104; 1993 a. 16; 1995 a. 13, 227; 1997 a. 27; 2001 a. 16; 2009 a. 42 ss. 207 to 213; Stats. 2009 s. 323.61.

323.62 323.62 Mobile field force grants. From the appropriation under s. 20.465 (3) (dm), the division may award grants to Wisconsin law enforcement agencies, as defined in s. 165.77 (1) (c), to fund crowd-control training and equipment used for crowd control.

323.62 History History: 2017 a. 59.

323.63 323.63 Pre-disaster flood resilience grant program.

323.63(1) (1) Definitions. In this section:

323.63(1)(a) (a) “Assessment grant” means a grant awarded under sub. (3).

323.63(1)(b) (b) “Implementation grant” means a grant awarded under sub. (4).

323.63(1)(c) (c) “Local governmental unit” means any city, village, town, county, regional planning commission, or federally recognized American Indian tribe or band in this state.

323.63(1)(d) (d) “Program” means the pre-disaster flood resilience grant program described in sub. (2) (a).

323.63(2) (2) Creation and administration.

323.63(2)(a) (a) The division shall create and administer a pre-disaster flood resilience grant program to provide grants to applicants for the purpose of identifying flood vulnerabilities, identifying options to improve flood resiliency, and restoring hydrology in order to reduce flood risk and damages in flood-prone communities.

323.63(2)(b) (b) The program shall provide grants as described in subs. (3) and (4), and shall establish an annual grant cycle.

323.63(2)(c) (c) In each fiscal biennium, for each dollar the program awards for an assessment grant under sub. (3), the program may award no more than 67 percent of a dollar for an implementation grant under sub. (4).

323.63(3) (3) Assessment grants.

323.63(3)(a) (a) Assessment grants awarded under this subsection shall support applicants’ generation and gathering of information on vulnerabilities and identification of flood resilience priorities on a watershed, catchment, or stream reach-scale through one or more of the following activities:

323.63(3)(a)1. 1. Assessments aimed at understanding flood flows and erosion hazards and vulnerabilities and identifying opportunities to increase flood resilience, including opportunities to restore wetland, stream, and floodplain hydrology.

323.63(3)(a)2. 2. Development of culvert inventories using the Great Lakes Stream Crossing Inventory, or using another road-stream crossing inventory method that considers structural risk factors, aquatic organism passage, and upstream hydrologic conditions, and that is at least as effective as the Great Lakes Stream Crossing Inventory.