Chapter 323

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.

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.