292.15(2)(at)
(at)
Discharges discovered after environmental investigations. Except as provided in
sub. (6) or
(7), a voluntary party is exempt from
ss. 289.05 (1),
(2),
(3) and
(4),
289.42 (1),
289.67,
291.25 (1) to
(5),
291.29,
291.37,
292.11 (3),
(4) and
(7) (b) and
(c) and
292.31 (8), and rules promulgated under those provisions, with respect to a discharge of a hazardous substance on or originating from a property if the discharge occurred before the environmental investigation under
subd. 1. is completed and if all of the following apply:
292.15(2)(at)1.
1. An environmental investigation of the property and of any discharges of hazardous substances originating from the property is conducted and is approved by the department.
292.15(2)(at)2.
2. If required by the department, the voluntary party enters into an agreement with the department under which the voluntary party agrees to conduct a cleanup approved by the department.
292.15(2)(at)3.
3. The voluntary party obtains and maintains insurance to cover the costs of complying with
s. 292.11 (3) with respect to hazardous substance discharges that occurred before the investigation under
subd. 1. is completed and that are discovered in the course of conducting a cleanup of the property, the insurance complies with rules promulgated by the department and the insurance names the voluntary party and this state as insureds.
292.15(2)(at)3m.
3m. If the department requires the voluntary party to enter into an agreement under
subd. 2., the voluntary party conducts the agreed upon cleanup.
292.15(2)(at)4.
4. A hazardous substance discharge that occurred before the investigation under
subd. 1. is completed is discovered after the investigation under
subd. 1. is approved and before the cleanup is completed.
292.15(2)(at)6.
6. The voluntary party has not obtained approval of the investigation under
subd. 1. or the agreement under
subd. 2. by fraud or misrepresentation, by the knowing failure to disclose material information or under circumstances in which the voluntary party knew or should have known about more discharges of hazardous substances than were revealed by the investigation conducted under
subd. 1.
292.15(2)(b)
(b)
Extent of exemptions. The exemptions provided in
pars. (a),
(ae),
(ag) and
(am) continue to apply after the date of certification by the department under
par. (a) 3.,
(ae) 3. or
(ag) 2., or approval by the department under
par. (am), notwithstanding the occurrence of any of the following:
292.15(2)(b)1.
1. Statutes, rules or regulations are created or amended that would impose greater responsibilities on the voluntary party than those imposed under
par. (a) 2.,
(ae) 2. or
(ag) 1.
292.15(2)(b)2.
2. The voluntary party fully complies with the rules promulgated by the department and any contract entered into under those rules under
par. (a) 2.,
(ae) 2. or
(ag) 1. but it is discovered that the cleanup fails to fully restore the environment and minimize the effects from a discharge of a hazardous substance.
292.15(2)(b)3.
3. The contamination from a hazardous substance that is the subject of the cleanup under
par. (a) 2.,
(ae) 2. or
(ag) 1. is discovered to be more extensive than anticipated by the voluntary party and the department.
292.15(2)(c)
(c)
Prohibition on action. The department of justice may not commence an action under
42 USC 9607 against any voluntary party meeting the criteria of this subsection to recover costs for which the voluntary party is exempt under
pars. (a),
(ae),
(ag),
(am),
(at) and
(b).
292.15(2)(d)
(d)
Exception. This subsection does not apply to a municipal waste landfill, as defined in
s. 289.01 (22), or to an approved facility.
292.15(2)(e)
(e)
Contract with insurer. If the department requires insurance under
par. (ae) 3m. or
(at) 3., the department may contract with an insurer to provide insurance required under
par. (ae) 3m. or
(at) 3. and may require voluntary parties to obtain coverage under the contract.
292.15(3)
(3) Successors and assigns. An exemption provided in
sub. (2) applies to any successor or assignee of the voluntary party if the successor or assignee complies with the provisions of
sub. (2) (a) 4. and
5. or
(ae) 3m.,
4. and
5. and, if applicable,
sub. (2) (ag) 4. or
(am) as though the successor or assignee were the voluntary party except that the exemption in
sub. (2) does not apply if the successor or assignee knows that a certificate under
sub. (2) (a) 3.,
(ae) 3.,
(ag)2. or
(am) was obtained by any of the means or under any of the circumstances specified in
sub. (2) (a) 6.
292.15(4)
(4) Limited responsibility. The responsibility of a voluntary party under
sub. (2) (a) 2. may be monetarily limited by agreement between the voluntary party and the department if the voluntary party purchased the property from a local governmental unit that acquired the property in a way or for a purpose described in
s. 292.11 (9) (e) 1m. The agreement shall stipulate all of the following:
292.15(4)(a)
(a) That the voluntary party may cease the cleanup when the cost of the cleanup equals 125% of the anticipated expense of the cleanup.
292.15(4)(b)
(b) That the voluntary party will continue to receive the benefit of the exemption under
sub. (2) (a) after cessation of the cleanup if the voluntary party complies with
sub. (2) (a) 4. and
5.
292.15(4)(c)
(c) That, if the voluntary party ceases the cleanup, the voluntary party shall use reasonable efforts to sell the property in accordance with rules of the department that define "reasonable efforts" in a manner substantively equivalent to
40 CFR 300.1100 (d) (2) (i).
292.15(5)
(5) Fees. The department may, in accordance with rules that it promulgates, assess and collect fees from a voluntary party to offset the cost of the department's activities under
subs. (2) and
(4). 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
subs. (2) and
(4).
292.15(6)(b)
(b) This section does not exempt property from any lien filed under
s. 292.81 (3) for costs that are incurred by the department with respect to a hazardous substance discharge described in
sub. (2) (at) 3. and that are not covered by insurance required by
sub. (2) (at) 3.
292.15(7)
(7) Applicability. This section does not apply to any of the following:
292.15(7)(a)
(a) A hazardous waste treatment, storage or disposal facility that first begins operation after the date on which the voluntary party acquired the property.
292.15(7)(b)
(b) A licensed hazardous waste treatment, storage or disposal facility operated on the property before the date on which the voluntary party acquired the property and that is operated after the date on which the voluntary party acquired the property.
292.15(7)(c)
(c) Any hazardous waste disposal facility that has been issued a license under s.
144.441 (2), 1995 stats., or
s. 289.41 (1m), or rules promulgated under those sections, for a period of long-term care following closure of the facility.
292.15 Annotation
The Land Recycling Act. Borchert & Burke. Wis. Law. Aug. 1994.
292.16
292.16
Responsibility of certain municipalities acquiring closed landfills. 292.16(2)
(2) Application. A municipality may apply to the department for an exemption from liability with respect to property that contains a closed landfill and that is acquired by the municipality before, on or after the effective date of this subsection.
292.16(3)
(3) Conditions for approval. The department shall approve an application under
sub. (2) if all of the following apply:
292.16(3)(a)
(a) The landfill is closed when the municipality acquires the property.
292.16(3)(b)
(b) The landfill closure complies with all rules of the department at the time of the application under
sub. (2).
292.16(3)(c)
(c) The municipality did not have an ownership interest in the landfill while the landfill was in operation.
292.16(3)(d)
(d) The municipality enters into an agreement with the department that contains requirements for the municipality to maintain the property.
292.16(3)(e)
(e) The department determines that an exemption from liability under this section is in the public interest.
292.16(3)(f)
(f) The landfill was privately owned while it was in operation.
292.16(3)(g)
(g) The landfill has caused groundwater contamination.
292.16(3)(h)
(h) A steering committee of local public and private representatives was formed to address the contamination caused by the landfill in a cooperative effort with the department that prevented the landfill from being listed on the national priority list under
42 USC 9605 (a) (8) (B).
292.16(3)(i)
(i) The remedial action approved by the department authorized a recreational use for the property and was completed by December 31, 1995.
292.16(4)
(4) Scope of exemption. An approval by the department under
sub. (3) exempts the municipality from liability imposed under
ss. 289.05,
289.41,
289.46,
289.95,
291.37,
291.85 (2),
292.11 (3),
(4) and
(7) (b) and
(c) and
292.31 (8), and rules promulgated under those provisions, based on the municipality's ownership of the property. The exemption does not apply to any liability based on hazardous substances for which the municipality is responsible as a generator or transporter.
292.16(5)
(5) Requirements. If the department approves a municipality's application under
sub. (3), the municipality shall do all of the following:
292.16(5)(a)
(a) Obtain the prior approval of the department for any proposed uses of the property, for any physical disturbance of the soil and for any construction on the property.
292.16(5)(b)
(b) Allow access to the property by any person who is required to conduct monitoring, to operate and maintain equipment or to undertake remedial action in connection with the closed landfill.
292.16 History
History: 1997 a. 27.
292.19
292.19
Responsibility of persons conducting investigations. 292.19(1)(1) For purposes of this chapter, a person who conducts an investigation of property to determine the existence of, or to obtain information about, a discharge of a hazardous substance does not possess or control the hazardous substance or cause the discharge of the hazardous substance as the result of conducting the investigation.
292.19(2)
(2) If the person who conducts the investigation physically causes a discharge,
sub. (1) does not apply with respect to the portion of the property on which the person causes the discharge.
292.19 History
History: 1997 a. 27.
292.21
292.21
Responsibility of lenders and representatives. 292.21(1)(1)
Responsibility of lenders; lending activities; acquisition of property. 292.21(1)(a)1.1. Subject to
subd. 2. and
par. (b), for purposes of this chapter, a lender does not possess or control a hazardous substance or cause the discharge of a hazardous substance as a result of engaging in lending activities.
292.21(1)(a)2.
2. Subdivision 1. does not apply in any of the following situations:
292.21(1)(a)2.b.
b. The lender through tortious conduct with respect to lending activities causes a discharge of a hazardous substance or exacerbates an existing discharge of a hazardous substance.
292.21(1)(a)3.
3. The department may, by rule, designate as lending activities other activities, in addition to those listed in
s. 292.01 (9), that are related to undertaking appropriate actions to preserve and protect property or are related to the advancing of funds or credit or the collecting of funds.
292.21(1)(b)
(b)
Preacquisition inspections of real property. For purposes of this chapter, a lender does not possess or control a hazardous substance or cause the discharge of a hazardous substance as the result of inspecting real property for compliance with environmental laws, conducting any portion of an environmental assessment of the property in the manner specified in
par. (c) 2., conducting an investigation to determine the degree and extent of contamination or performing remedial action to clean the discharge of a hazardous substance. This paragraph applies to a lender only if all of the following conditions are satisfied:
292.21(1)(b)1.
1. The activities described in this paragraph occur before the date on which the lender acquires title to, or possession or control of, real property through enforcement of a security interest.
292.21(1)(b)2.
2. The lender notifies the department, in accordance with
s. 292.11 (2), of any discharge of a hazardous substance identified as the result of activities described in this paragraph.
292.21(1)(b)3.
3. If the lender conducts an investigation or performs remedial action, the lender does so in accordance with department rules.
292.21(1)(b)5.
5. The lender through tortious conduct with respect to the activities described in this paragraph does not cause a new discharge of a hazardous substance or exacerbate an existing discharge of a hazardous substance.
292.21(1)(c)1.1. A lender that acquires title to, or possession or control of, real property through enforcement of a security interest is not subject to
s. 292.11 (3),
(4) and
(7) (b) and
(c) and is not liable under this chapter or
chs. 281,
285,
289,
291 or
293 to
299 for a discharge of a hazardous substance on that real property if all of the following conditions are satisfied:
292.21(1)(c)1.a.
a. The lender, through action or inaction, does not intentionally or negligently cause a new discharge of a hazardous substance or exacerbate an existing discharge of a hazardous substance.
292.21(1)(c)1.c.
c. The lender notifies the department, in accordance with
s. 292.11 (2), of any known discharge of a hazardous substance.
292.21(1)(c)1.d.
d. The lender conducts an environmental assessment of the real property in accordance with
subd. 2. at any time, but not more than 90 days after the date the lender acquires title to, or possession or control of, the real property. The lender shall file a complete copy of the environmental assessment with the department not more than 180 days after the date the lender acquires title to, or possession or control of, the real property. If an environmental assessment is conducted more than one year before the date on which the lender acquires title to, or possession or control of, the real property, the exemption under this
subd. 1. d. applies only if the lender does all of the following: visually inspects the property in accordance with
subd. 2. a. and
b. after the date on which the lender acquires title to, or possession or control of, the real property to verify the environmental assessment; submits a complete copy of the environmental assessment and the results of the visual inspection to the department not later than 90 days after the lender acquires title to, or possession or control of, the real property; receives notice from the department that the department determines that the environmental assessment is adequate or that the department directs the lender to address any inadequacies in the environmental assessment; corrects, to the satisfaction of the department, any inadequacies of an environmental assessment; and reimburses the department for the cost to the department of reviewing materials submitted under this
subd. 1. d.
292.21(1)(c)1.e.
e. For a hazardous substance released on or after the date on which the lender acquires title to, or possession or control of, the real property, the lender is not engaged in the operation of a business at the property, completion of work in progress or other actions associated with conducting the conclusion of the borrower's business.
292.21(1)(c)1.f.
f. If the discharge of a hazardous substance occurs on or after the date on which the lender acquires title to, or possession or control of, the real property, the lender implements an emergency response action in response to the discharge of the hazardous substance.
292.21(1)(c)1.g.
g. The lender agrees to allow the department, any authorized representatives of the department, any party that possessed or controlled the hazardous substance or caused the discharge of the hazardous substance and any consultant or contractor of such a party to enter the real property to take action to respond to the discharge.
292.21(1)(c)1.h.
h. The lender agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge.
292.21(1)(c)1.i.
i. The lender agrees to any other condition that the department determines is reasonable and necessary to ensure that the department or other person described in
subd. 1. g. can adequately respond to the discharge.
292.21(1)(c)2.
2. The environmental assessment under
subd. 1. d. shall be performed by a qualified environmental technician or consultant and shall include all of the following:
292.21(1)(c)2.b.
b. A visual inspection and description of the personal property located on the real property that may constitute a hazardous waste or hazardous substance or that has a significant risk of being discharged.
292.21(1)(c)2.c.
c. A review of the ownership and use history of the real property, including a search of title records showing prior ownership of the real property for a period of 80 years previous to the date of the visual inspection under
subd. 2. b.
292.21(1)(c)2.d.
d. A review of historic and recent aerial photographs of the real property, if available.
292.21(1)(c)2.e.
e. A review of the environmental licenses, permits or orders issued with respect to the real property.
292.21(1)(c)2.f.
f. An evaluation of the results of any environmental sampling and analysis that has been conducted.
292.21(1)(c)2.g.
g. A review to determine if the real property is listed in any of the written compilations of sites or facilities considered to pose a threat to human health or the environment, including the national priorities list under
42 USC 9605 (a) (8) (B); the federal environmental protection agency's information system for the comprehensive environmental response, compensation and liability act,
42 USC 9601 to
9675, (CERCLIS); the department's most recent Wisconsin remedial response site evaluation report, including the inventory of sites or facilities which may cause or threaten to cause environmental pollution required by
s. 292.31 (1) (a); and the department's registry of abandoned landfills.
292.21(1)(c)2.h.
h. The collection and analysis of representative samples of soil or other materials in the ground that are suspected of being contaminated based on observations made during a visual inspection of the real property or based on aerial photographs, or other information available to the lender, including stained or discolored soil or other materials in the ground and including soil or materials in the ground in areas with dead or distressed vegetation. The collection and analysis shall identify contaminants in the soil or other materials in the ground and shall quantify concentrations.
292.21(1)(c)2.i.
i. The collection and analysis of representative samples of unknown wastes or potentially hazardous substances found on the real property and the determination of concentrations of hazardous waste and hazardous substances found in tanks, drums or other containers or in piles or lagoons on the real property.
292.21(1)(d)
(d)
Personal property and fixtures. A lender that enforces a security interest in personal property or fixtures at a particular location, filed under
ch. 409, and that does not acquire title to, or possession or control of, the real property at that location, except for purposes of protecting and removing personal property or fixtures, is not subject to
s. 292.11 (3),
(4) and
(7) (b) and
(c) and is not liable under this chapter for a discharge of a hazardous substance on that real property if all of the following conditions are satisfied:
