292.01 Definitions. In this chapter: (1) “Approved facility” has the meaning given in s. 289.01 (3). (1m) “Approved mining facility” has the meaning given in s. 289.01 (4) and includes a mining waste site, as defined in s. 295.41 (31). (1s) “Contaminated sediment” means sediment that contains a hazardous substance. (2) “Department” means the department of natural resources. (3) “Discharge” means, but is not limited to, spilling, leaking, pumping, pouring, emitting, emptying or dumping. (3m) “Engineering control” means an object or action designed and implemented to contain contamination or to minimize the spread of contamination, including a cap, soil cover, or inplace stabilization, but not including a sediment cover. (4) “Environmental pollution” means the contaminating or rendering unclean or impure the air, land or waters of the state, or making the same injurious to public health, harmful for commercial or recreational use, or deleterious to fish, bird, animal or plant life. (5) “Hazardous substance” means any substance or combination of substances including any waste of a solid, semisolid, liquid or gaseous form which may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or which may pose a substantial present or potential hazard to human health or the environment because of its quantity, concentration or physical, chemical or infectious characteristics. This term includes, but is not limited to, substances which are toxic, corrosive, flammable, irritants, strong sensitizers or explosives as determined by the department. (6) “Hazardous waste” means any solid waste identified by the department as hazardous under s. 291.05. (7) “Landfill” means a solid waste facility for solid waste disposal. (8) “Lender” means a bank, credit union, savings bank, savings and loan association, mortgage banker or similar financial
292.37 292.41 292.51 292.53 292.55 292.57 292.63 292.64 292.65 292.68 292.70 292.72 292.81
292.93 292.94 292.95 292.98 292.99
Confidentiality of records. Abandoned containers. Cooperative remedial action. Availability of environmental insurance. Requests for liability clarification and technical assistance. Database of properties with residual contamination. Petroleum storage remedial action; financial assistance. Removal of abandoned underground petroleum storage tanks. Dry cleaner environmental response program. Reimbursement for disposal of PCB contaminated sediment. Indemnification for disposal of polychlorinated biphenyls. Brownfields revolving loan program. Notice; lien. SUBCHAPTER III ENFORCEMENT; PENALTIES Orders. Fees related to enforcement actions. Review of alleged violations; environmental repair and cost recovery. Violations and enforcement; environmental repair and cost recovery. Penalties.
institution, the primary business of which is to engage in lending activities or an insurance company, pension fund or government agency engaged in secured lending. (9) “Lending activities” means advancing funds or credit to and collecting funds from another person; entering into security agreements, including executing mortgages, liens, factoring agreements, accounts receivable financing arrangements, conditional sales, sale and leaseback arrangements and installment sales contracts; conducting inspections of or monitoring a borrower’s business and collateral; providing financial assistance; restructuring or renegotiating the terms of a loan obligation; requiring payment of additional interest; extending the payment period of a loan obligation; initiating foreclosure or other proceedings to enforce a security interest in property before obtaining title; requesting and obtaining the appointment of a receiver; and making decisions related to extending or refusing to extend credit. (10) “Long-term care” means the routine care, maintenance and monitoring of a solid or hazardous waste facility following closing of the facility. (11) “Municipality” means any city, town, village, county, county utility district, town sanitary district, public inland lake protection and rehabilitation district or metropolitan sewage district. (12) “Nonapproved facility” has the meaning given in s. 289.01 (24). (13) “Person” means an individual, owner, operator, corporation, limited liability company, partnership, association, municipality, interstate agency, state agency or federal agency. (15) “Preventive measures” mean the installation or testing of equipment or devices, a designated way of performing a specified operation or the preparation of an emergency response plan. (16) “Representative” means any person acting in the capacity of a conservator, guardian, court-appointed receiver, personal representative, testamentary trustee of a deceased person, trustee of a living trust, or fiduciary of real or personal property. (17) “Secretary” means the secretary of natural resources. (17g) “Sediment” means particles in the bed of a navigable water up to the ordinary high-water mark that are derived from the erosion of rock, minerals, soil, and biological materials and
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from chemical precipitation from the water column and that are transported or deposited by water. (17m) “Sediment cover” means a layer of uncontaminated sand or similar material that is deposited on top of contaminated sediment. (18) “Site or facility” means, except in s. 292.35, an approved facility, an approved mining facility, a nonapproved facility or a waste site. (19) “Solid waste” has the meaning given under s. 289.01 (33). (21) “Waste site” means any site, other than an approved facility, an approved mining facility or a nonapproved facility, where waste is disposed of regardless of when disposal occurred or where a hazardous substance is discharged before May 21, 1978. History: 1995 a. 227 s. 599, 600, 702, 993; 1997 a. 27; 2001 a. 102; 2013 a. 1; 2015 a. 204 ss. 2 to 4, 6.
SUBCHAPTER II REMEDIAL ACTION 292.11
Hazardous substance spills. (2) NOTICE OF DIS(a) A person who possesses or controls a hazardous substance or who causes the discharge of a hazardous substance shall notify the department immediately of any discharge not exempted under sub. (9). (b) Notification received under this section or information obtained in a notification received under this section may not be used against the person making such a notification in any criminal proceedings. (c) The department shall designate a 24-hour statewide toll free or collect telephone number whereby notice of any hazardous discharge may be made. (d) The department shall report notifications that it receives under this subsection related to discharges of agricultural chemicals, as defined in s. 94.73 (1) (a), to the department of agriculture, trade and consumer protection. The department shall report notifications under this paragraph according to a memorandum of understanding between the department and the department of agriculture, trade and consumer protection under s. 94.73 (12). (3) RESPONSIBILITY. A person who possesses or controls a hazardous substance which is discharged or who causes the discharge of a hazardous substance shall take the actions necessary to restore the environment to the extent practicable and minimize the harmful effects from the discharge to the air, lands or waters of this state. (4) PREVENTION OF DISCHARGE. (a) The department may require that preventive measures be taken by any person possessing or having control over a hazardous substance if the department finds that existing control measures are inadequate to prevent discharges. (b) The department shall specify necessary preventive measures by order. The order shall be effective 10 days after issuance, unless the person named requests a hearing, in which case no order may become effective until the conclusion of the hearing. (5) CONTINGENCY PLAN. (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 undertaking of emergency actions in response to the discharge of hazardous substances. CHARGE.
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(b) The contingency plan shall: 1. Provide for efficient, coordinated and effective action to minimize damage to the air, land and waters of the state caused by the discharge of hazardous substances; 2. Include containment, clean-up and disposal procedures; 3. Provide for restoration of the lands or waters affected to the satisfaction of the department; 4. Assign duties and responsibilities among state departments and agencies, in coordination with federal and local agencies; 5. Provide for the identification, procurement, maintenance and storage of necessary equipment and supplies; 6. Provide for designation of persons trained, prepared and available to provide the necessary services to carry out the plan; and 7. Establish procedures and techniques for identifying, locating, monitoring, containing, removing and disposing of discharged hazardous substances. (6) HAZARDOUS SUBSTANCES SPILLS; APPROPRIATIONS AND RELATED PROVISIONS. (a) Contingency plan; activities resulting from discharges. The department may utilize moneys appropriated under s. 20.370 (4) (dv) and (ms) in implementing and carrying out the contingency plan developed under sub. (5) and to provide for the procurement, maintenance, and storage of necessary equipment and supplies, personnel training, and expenses incurred in identifying, locating, monitoring, containing, removing, and disposing of discharged substances. (b) Limitation on equipment expenses. No more than 25 percent of the moneys available under the appropriation under s. 20.370 (4) (dv) or (ms) during any fiscal year may be used for the procurement and maintenance of necessary equipment during that fiscal year. (c) Reimbursements. 1. Reimbursements to the department under sub. (7) (b) shall be credited to the environmental fund for environmental management. 2. Reimbursements to the department under section 311, federal water pollution control act amendments of 1972, P.L. 92500, shall be credited to the appropriation under s. 20.370 (4) (ms). (7) REMOVAL OR OTHER EMERGENCY ACTION. (a) Subject to s. 94.73 (2m), in any case where action required under sub. (3) is not being adequately taken or the identity of the person responsible for the discharge is unknown, the department or its authorized representative may identify, locate, monitor, contain, remove or dispose of the hazardous substance or take any other emergency action which it deems appropriate under the circumstances. (b) 1. The person who possessed or controlled a hazardous substance which was discharged or who caused the discharge of a hazardous substance shall reimburse the department for actual and necessary expenses incurred in carrying out its duties under this subsection. 2. If the department authorizes reimbursement under subd. 1. to be paid over time, it shall require monthly payments of interest, at a rate determined by the department, on the unpaid balance of the reimbursement. (c) Subject to s. 94.73 (2m), the department, for the protection of public health, safety or welfare, may issue an emergency order or a special order to the person possessing, controlling or responsible for the discharge of hazardous substances to fulfill the duty imposed by sub. (3). (d) 1. The department may negotiate and enter into an agreement containing a schedule for conducting nonemergency actions required under sub. (3) with a person who possesses or controls a hazardous substance that was discharged or who caused the dis-
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charge of a hazardous substance if the discharge does not endanger public health. 1m. The department may negotiate and enter into an agreement containing a schedule for conducting nonemergency actions required under sub. (3) with a local governmental unit, as defined in sub. (9) (e) 1., that is acting on behalf of owners of contaminated property within one of the following: a. A business improvement district, as defined in s. 66.1109 (1) (b). b. An area designated by the local governmental unit if the area consists of 2 or more properties affected by a contiguous region of groundwater contamination or contains 2 or more properties that are brownfields, as defined in s. 238.13 (1) (a). 2. The department may charge fees, in accordance with rules that it promulgates, to offset the costs of negotiating and entering into an agreement under subd. 1. or 1m. (e) If a person violates an order under par. (c) or an agreement under par. (d), the department may refer the matter to the department of justice for enforcement under s. 299.95. (8) ACCESS TO PROPERTY AND RECORDS. Any officer, employee or authorized representative of the department, upon notice to the owner or occupant, may enter any property, premises or place at any time for the purposes of sub. (7) 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 a hazardous substance for the purpose of ascertaining the state of compliance with this section and the management rules promulgated under this section. Notice to the owner or occupant is not required if the delay attendant upon providing it will result in imminent risk to public health or safety or the environment. (9) EXEMPTIONS. (a) Any person holding a valid permit under ch. 283 is exempted from the reporting and penalty requirements of this section with respect to substances discharged within the limits authorized by the permit. (b) Law enforcement officers or members of a fire department using hazardous substances in carrying out their responsibility to protect public health, safety and welfare are exempted from the penalty requirements of this section, but shall report to the department any discharges of a hazardous substance occurring within the performance of their duties. (c) Any person discharging in conformity with a permit or program approved under chs. 281, 285 or 289 to 299 is exempted from the reporting and penalty requirements of this section. (d) 1. In this paragraph: a. “Fertilizer” has the meaning given in s. 94.64 (1) (e). b. “Label” has the meaning given in s. 94.67 (19). c. “Pesticide” has the meaning given in s. 94.67 (25). d. “Registered” means registered under the federal insecticide, fungicide, and rodenticide act, as amended (7 USC 136 et seq.), and regulations issued under that act or registered under the rules of the department of agriculture, trade and consumer protection. 2. Any person applying a registered pesticide according to the label instructions, or applying a fertilizer at or below normal and beneficial agronomic rates, is exempted with respect to the application from the reporting and penalty requirements of this section. (e) 1. In this paragraph, “local governmental unit” means a municipality, a redevelopment authority created under s. 66.1333, a public body designated by a municipality under s. 66.1337 (4), a community development authority or a housing authority. 1m. Except as provided in subds. 2., 4., 6. and 7., a local governmental unit is exempt from subs. (3), (4) and (7) (b) and (c)
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with respect to discharges of hazardous substances on or originating from property acquired by the local government unit before, on or after October 29, 1999, if any of the following applies: a. The local governmental unit acquired the property through tax delinquency proceedings or as the result of an order by a bankruptcy court. b. The local governmental unit acquired the property from a local governmental unit that is exempt under this subdivision with respect to the property. c. The local governmental unit acquired the property through condemnation or other proceeding under ch. 32. d. The local governmental unit acquired the property for the purpose of slum clearance or blight elimination. e. The local governmental unit acquired the property through escheat. f. The local governmental unit acquired the property using funds appropriated under s. 20.866 (2) (ta) or (tz). 1s. Except as provided in subds. 2. and 4. to 6., an economic development corporation described in section 501 (c) of the Internal Revenue Code, as defined in s. 71.22 (4), that is exempt from federal taxation under section 501 (a) of the Internal Revenue Code, or an entity wholly owned and operated by such a corporation, is exempt from subs. (3), (4) and (7) (b) and (c) with respect to property acquired before, on or after October 14, 1997, if the property is acquired to further the economic development purposes that qualify the corporation as exempt from federal taxation. 2. Subdivisions 1m. and 1s. do not apply to a discharge of a hazardous substance caused by any of the following: a. An action taken by the local governmental unit or corporation. b. A failure of the local governmental unit or corporation to take appropriate action to restrict access to the property in order to minimize costs or damages that may result from unauthorized persons entering the property. c. A failure of the local governmental unit or corporation to sample and analyze unidentified substances in containers stored aboveground on the property. d. A failure of the local governmental unit or corporation to remove and properly dispose of, or to place in a different container and properly store, any hazardous substance stored aboveground on the property in a container that is leaking or is likely to leak. 4. Subdivisions 1m. and 1s. do not apply if, after considering the intended development and use of the property, the department determines that action is necessary to reduce to acceptable levels any substantial threat to public health or safety when the property is developed or put to that intended use, the department directs the local governmental unit or corporation to take that necessary action and the local governmental unit or corporation does not take that action as directed. 5. Subdivision 1s. does not apply if the corporation fails to do any of the following: a. Respond to a discharge of a hazardous substance that poses an imminent threat to public health, safety or welfare or to the environment, on or off of the property. b. Enter into an agreement with the department to conduct any necessary investigation and remediation activities at the property no later than 3 years after acquiring the property. 6. Subdivisions 1m. and 1s. only apply if the local governmental unit or the economic development corporation 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
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REMEDIAL ACTION
any consultant or contractor of such a party to enter the property to take action to respond to the discharge. 7. Subdivision 1m. does not apply to property described in subd. 1m. f. unless the local governmental unit enters into an agreement with the department to ensure that the conditions in subds. 2. and 4. are satisfied. (f) Any person discharging high-volume industrial waste used in a highway improvement project under s. 84.078 is exempted from the penalty requirements of this section. (10) WAIVER. The department may waive compliance with any requirement of this section to the extent necessary to prevent an emergency condition threatening public health, safety or welfare. (11) ENFORCEMENT EXCLUSIONS. (a) Any person proceeded against for a violation of this section shall not be subject to penalties under s. 291.97 for the same act or omission. (b) Any person who discharges a hazardous substance, where the responsibilities for such a discharge are prescribed by statute other than ch. 291, shall be subject to the penalty under either this section or the other section but not both. (12) APPLICABILITY. (a) Action by the department under this section is not subject to s. 292.31. (b) This section applies to all releases of hazardous substances for which a notification must be made under s. 323.60 (5) (b). (13) LIEN. Any expenditures made by the department under sub. (4), (6) or (8) shall constitute a lien upon the property for which the expenses are incurred, as provided in s. 292.81. History: 1995 a. 227 ss. 700, 703 to 707, 710, 993; 1997 a. 27, 35; 1999 a. 9; 1999 a. 150 s. 672; 2001 a. 16, 30; 2007 a. 20; 2009 a. 28, 42; 2011 a. 32; 2013 a. 20; 2017 a. 59. Cross-reference: See also chs. NR 702, 706, 708, 714, 716, 718, 720, 722, 724, 726, and 747, Wis. adm. code. The owner of property from which a hazardous substance seeped into neighboring properties was required to take remedial action. The seepage was a “discharge” even though it was not related to current human activity. State v. Mauthe, 123 Wis. 2d 288, 366 N.W.2d 871 (1985). Section 144.76 (3) [now s. 292.11 (3)] is not a safety statute. A violation is not negligence per se. Grube v. Daun, 210 Wis. 2d 681, 563 N.W.2d 523 (1997), 952353. Section 144.76 [now s. 292.11] is applicable in actions by the state to compel remediation of, and to impose penalties for, hazardous waste spills, which although initially caused by actions preceding the 1978 effective date of this section, continue to discharge after that date. State v. Chrysler Outboard Corp. 219 Wis. 2d 130, 580 N.W.2d 203 (1998), 96-1158. The Spills Law under this chapter gives the Department of Natural Resources broad but explicit authority to enforce a threshold for reporting a PFAS discharge without promulgating a rule. Wisconsin Manufacturers & Commerce, Inc. v. Natural Resources Board, 2025 WI 26, 416 Wis. 2d 561, 21 N.W.3d 718, 22-0718. Section 144.76 (11) (b) [now s. 292.11 (11) (b)] allows the imposition of both a monetary penalty and an administrative clean-up order against a violator of this section. When another regulatory statute is implicated, the penalty imposed may be the penalty under this section or the other section, but not both. State v. Block Iron & Supply Co. 183 Wis. 2d 357, 515 N.W.2d 332 (Ct. App. 1994).
292.12 Sites with residual contamination. (1) DEFINITIONS. In this section: (a) “Agency with administrative authority” means the department of agriculture, trade and consumer protection with respect to a site over which it has jurisdiction under s. 94.73 (2) or the department of natural resources with respect to a site over which it has jurisdiction under ch. 289, 291, or 292. (b) “Case closure” means a determination by the agency with administrative authority, based on information available at the time of the review by the agency with administrative authority, that no further remedial action is necessary at a site. (d) “Remedial action” means action that is taken in response to a discharge of a hazardous substance and that is necessary to restore the environment to the extent practicable and to minimize the harmful effects of the discharge to the air, lands, and waters of this state.
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(e) “Site” means a waste site or any area where a hazardous substance has been discharged. (2) AGENCY AUTHORITY. The agency with administrative authority may do any of the following as a condition of approving an interim action, as defined by the agency with administrative authority by rule, or a remedial action or of issuing a case closure letter if residual contamination remains on a site after the conclusion of an interim action or a remedial action at the site: (a) Require maintenance of an engineering control on the site. (b) Require an investigation of the extent of residual contamination and the performance of any necessary remedial action if a building or other structural impediment is removed that had prevented a complete investigation or remedial action at the site. (c) Impose limitations or other conditions related to property, in accordance with rules promulgated by the department, to ensure that conditions at the site remain protective of public health, safety, and welfare and the environment, and, as applicable, to promote economic development. (d) If the site is one for which a person is required to take action under sub. (5m) (a), require submission to the agency with administrative authority of any of the following: 1. A satisfactory plan and compliance schedule for satisfying any requirements imposed under par. (a) or (b). 2. Proof of financial responsibility, as determined by the agency with administrative authority by rule, sufficient to pay the costs of complying with a plan approved under subd. 1. (3) DATABASE. (a) The department shall maintain a database listing sites for which an interim action that includes the use of an engineering control or a remedial action has been approved or a case closure letter has been issued and that have residual contamination and listing sites for which the department has directed that action be taken under s. 292.11 (9) (e) 4. The department shall make the database available to the public. The department shall include any requirements, limitations, or conditions imposed under sub. (2) (a) to (c), and any information required under sub. (2) (d), in the database, subject to modification under sub. (6), and shall include any action that the department has directed to be taken under s. 292.11 (9) (e) 4. (b) 1. If residual contamination remains on a site after the conclusion of an interim action that includes the use of an engineering control or a remedial action at the site, the agency with administrative authority shall request the department to list the site, and any requirements, limitations, or conditions imposed under sub. (2) (a) to (c), and any information required under sub. (2) (d), in the database maintained by the department under par. (a) and, as a condition of approving remedial action or of issuing a case closure letter, shall require the person requesting approval of remedial action or case closure to provide the information necessary for the listing and to pay a fee established by the department for the listing. 2. If the department has directed that a local governmental unit or economic development corporation take action under s. 292.11 (9) (e) 4. for a site, the department shall list the site, and the action that the department has directed, in the database maintained by the department under par. (a) and require the local governmental unit or the corporation to pay a fee established by the department for the listing. (4) NOTIFICATION OF RESIDUAL CONTAMINATION. Before a person applies for case closure for a site that includes any property that has residual contamination and is not owned by the person, the person shall provide written notification of the residual contamination to the owner of that property. The person shall include in the notice, at a minimum, a description of the type of residual contamination and the location and description of any engineering control or sediment cover on the site.
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(5) COMPLIANCE WITH REQUIREMENTS AND LIMITATIONS AND PROHIBITION ON INTERFERENCE. (a) Except as provided in par. (c) and sub. (5m) (a) and (b), a person who owns property, including a property or site that is listed under sub. (3) (b), shall comply with the requirements described in sub. (2) (a) and (b) that are imposed by an agency with administrative authority without regard to when the person obtained the property. (b) Except as provided in par. (c) and sub. (5m) (a) and (b), a person who owns or occupies property, including a property or site that is listed under sub. (3) (b), shall comply with the limitations or conditions described in sub. (2) (c) that are imposed by an agency with administrative authority without regard to when the person obtained or occupied the property. (c) If another person has entered into and is complying with a legally enforceable agreement to comply with any of the requirements, limitations, or conditions described in sub. (2) (a) to (c) that are applicable to the property and the agreement is included in the database maintained under sub. (3), the person who owns or occupies the property is not required to comply with the requirements, limitations, or conditions included in that agreement. (d) A person who owns or occupies property, including a property or site that is listed under sub. (3) (b), may not interfere with another person’s actions on the property that are required under sub. (2) (a) to (c). (5m) COMPLIANCE WITH REQUIREMENTS AND LIMITATIONS RELATED TO CONTAMINATED SEDIMENT AND PROHIBITION ON INTERFERENCE. (a) Notwithstanding the requirements under sub.
(5) (a) and (b), and except as provided in par. (b), a person who is required to take action under s. 292.11 (3), (4), or (7) (b) with respect to contaminated sediment and who takes action that includes the use of an engineering control shall do all of the following: 1. Except as provided in par. (am), comply with the requirements, limitations, and conditions described in sub. (2) (a) to (d) that are imposed by an agency with administrative authority without regard to whether the person owns or occupies the property on which the engineering control is used. 2. If the person does not own or occupy the property on which the engineering control is used, obtain access to the property that allows for the inspection, maintenance, and reinstallation of the engineering control or the removal of the engineering control and contaminated sediment. (am) If another person has entered into and is complying with a legally enforceable agreement to comply with any of the requirements, limitations, or conditions described in par. (a) 1. and the agreement is included in the database maintained under sub. (3), the person who is required to take action under par. (a) is not required to comply with the requirements, limitations, or conditions included in that agreement. (ar) A person who owns or occupies property on which an engineering control is used may not interfere with another person’s actions on the property that are required under par. (a). (b) A person who owns property from which a hazardous substance was discharged is not required to comply with sub. (2) (a) to (d) with respect to any other property containing contaminated sediment as a result of that discharge if all of the following apply: 1. The agency with administrative authority determines that the environment, including sediment, has been satisfactorily restored to the extent practicable with respect to the discharge and the harmful effects from the discharge have been minimized. 2. The person is a bona fide prospective purchaser under 42 USC 9601 (40). 3. Another person has entered into and is complying with a legally enforceable agreement to comply with any of the require-
REMEDIAL ACTION
292.13
ments, limitations, or conditions described under sub. (2) (a) to (d) with respect to any other property containing contaminated sediment as a result of that discharge. 4. The agreement under subd. 3. is included in the database maintained under sub. (3). 5. The person submits information that the agency with administrative authority determines is adequate to substantiate that subds. 1. to 4. are satisfied. (c) The agency with administrative authority may negotiate and enter into an agreement containing a schedule for conducting actions required under sub. (2) with any person required to take action under sub. (2) with respect to contaminated sediment. (6) MODIFICATION OF REQUIREMENTS. A person may request the agency with administrative authority over a site to change or eliminate a requirement, limitation, or condition that it imposed under sub. (2) (a) to (d) with respect to a site. If the agency with administrative authority agrees to change or eliminate a requirement, limitation, or condition imposed under sub. (2) (a) to (d), it shall provide written approval to the person, shall request the department to change the listing under sub. (3) (b) for the site accordingly, and shall require the person to pay a fee established by the department for changing the listing. History: 2005 a. 418; 2011 a. 32; 2013 a. 20; 2015 a. 204.
292.13 Property affected by off-site discharge. (1) EXEMPTION FROM LIABILITY FOR GROUNDWATER CONTAMINATION. A person is exempt from s. 292.11 (3), (4) and (7) (b) and (c) with respect to the existence of a hazardous substance in the groundwater on property possessed or controlled by the person if all of the following apply: (a) The discharge of the hazardous substance originated from a source on property that is not possessed or controlled by the person. (b) The person did not possess or control the hazardous substance on the property on which the discharge originated or cause the original discharge. (c) The person conducts an investigation or submits other information, that the department determines is adequate, to substantiate that pars. (a) and (b) are satisfied. (d) The person 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 property to take action to respond to the discharge. (f) The person agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge. (g) The person agrees to any other condition that the department determines is reasonable and necessary to ensure that the department or other person described in par. (d) can adequately respond to the discharge. (1m) EXEMPTION FROM LIABILITY FOR SOIL CONTAMINATION. A person is exempt from s. 292.11 (3), (4) and (7) (b) and (c) with respect to the existence of a hazardous substance in the soil, including sediments, or in vapor emitted from the soil or groundwater on property possessed or controlled by the person if all of the following apply: (a) The discharge of the hazardous substance originated from a source on property that is not possessed or controlled by the person. (b) The person did not possess or control the hazardous substance on the property on which the discharge originated or cause the original discharge. (c) The person conducts an investigation or submits other in-
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formation, that the department determines is adequate, to substantiate that pars. (a) and (b) are satisfied. (d) The person 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 property to take action to respond to the discharge. (e) The person agrees to take one or more of the following actions at the direction of the department if, after the department has made a reasonable attempt to notify the party who caused the discharge of the hazardous substance about the party’s responsibilities under s. 292.11, the department determines that the action or actions are necessary to prevent an imminent threat to human health, safety or welfare or to the environment: 1. Limit public access to the property. 2. Identify, monitor and mitigate fire, explosion and vapor hazards on the property. 3. Visually inspect the property and install appropriate containment barriers. (f) The person agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge. (g) The person agrees to any other condition that the department determines is reasonable and necessary to ensure that the department or other person described in par. (d) can adequately respond to the discharge. (2) DETERMINATIONS CONCERNING LIABILITY. The department shall, upon request, issue a written determination that a person who possesses or controls property on which a hazardous substance exists in the soil or groundwater, or in vapor emitted from the soil or groundwater, is exempt from s. 292.11 (3), (4) and (7) (b) and (c) if the person satisfies the applicable requirements in subs. (1) and (1m). The department may revoke its determination if it determines that any of the requirements in sub. (1) or (1m) cease to be met. (3) FEES. The department may, in accordance with rules that it promulgates, assess and collect fees to offset the costs of issuing determinations under sub. (2). History: 1997 a. 27; 1999 a. 9; 2001 a. 16; 2017 a. 70. Cross-reference: See also ch. NR 749, Wis. adm. code.
292.15 Voluntary party remediation and exemption from liability. (1) DEFINITIONS. In this section: (a) “Enforcement standard” has the meaning given in s. 160.01 (2). (am) “Natural attenuation” means the reduction in the mass and concentration in groundwater of a substance, and the products into which the substance breaks down, due to naturally occurring physical, chemical and biological processes, without human intervention. (b) “Owner of a business or entity” means any person who owns or who receives direct or indirect consideration from the operation of a business or entity regardless of whether the business or entity remains in operation and regardless of whether the person owns or receives consideration at the time any discharge of a hazardous substance occurs. “Owner of a business or entity” includes a subsidiary or parent corporation. (c) “Property” means the area of real property that is included in an application to obtain an exemption under this section, made up of a legally identifiable parcel or legally identifiable contiguous parcels created in compliance with applicable laws. (d) “Release” means the original discharge. (e) “Subsidiary or parent corporation” means any business entity, including a subsidiary, parent corporation or other busi-
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ness arrangement that has elements of common ownership or control or uses a long-term contractual arrangement with any person that has the effect of avoiding direct responsibility for conditions on a parcel of property. (f) “Voluntary party” means a person who submits an application to obtain an exemption under this section and pays any fees required under sub. (5). (2) EXEMPTION FROM LIABILITY. (a) General. Except as provided in sub. (6) or (7), and subject to pars. (ae) to (ag), a voluntary party is exempt from the provisions of 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 discharges of hazardous substances on or originating from a property, if the release of those hazardous substances occurred prior to the date on which the department approves the environmental investigation of the property under subd. 1. and if all of the following occur at any time before or after the date of acquisition: 1. An environmental investigation of the property is conducted that is approved by the department. 2. The environment is restored to the extent practicable with respect to the discharges and the harmful effects from the discharges are minimized in accordance with rules promulgated by the department and any contract entered into under those rules. 3. The voluntary party obtains a certificate of completion from the department that the environment has been satisfactorily restored to the extent practicable with respect to the discharges and that the harmful effects from the discharges have been minimized. 4. If the voluntary party owns or controls the property, the voluntary party maintains and monitors the property as required under rules promulgated by the department and any contract entered into under those rules. 5. The voluntary party does not engage in activities that are inconsistent with the maintenance of the property. 6. The voluntary party has not obtained the certificate of completion 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. (ae) Natural attenuation. Except as provided in sub. (6) or (7), if there exists a hazardous substance in groundwater on or originating from a property in a concentration that exceeds an enforcement standard and the department determines that natural attenuation will restore groundwater quality in accordance with rules promulgated by the department, 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 discharges of hazardous substances on or originating from the property, if the release of those hazardous substances occurred prior to the date on which the department approves the environmental investigation of the property under subd. 1. and if all of the following occur at any time before or after the date of acquisition: 1. An environmental investigation of the property is conducted that is approved by the department. 2. The environment is restored to the extent practicable with respect to the discharges and the harmful effects from the discharges are minimized in accordance with rules promulgated by the department and any contract entered into under those rules, except that this requirement does not apply with respect to the hazardous substance in groundwater that the department has de-
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termined will be brought into compliance with rules promulgated by the department through natural attenuation. 3. The voluntary party obtains a certificate of completion from the department stating that the environment has been satisfactorily restored to the extent practicable with respect to the discharges and that the harmful effects from the discharges have been minimized, except with respect to the hazardous substance in groundwater that the department has determined will be brought into compliance with rules promulgated by the department through natural attenuation. 3m. If required by the department, the voluntary party obtains and maintains insurance to cover the costs of complying with s. 292.11 (3) with respect to the hazardous substance that the department has determined will be brought into compliance with rules promulgated by the department through natural attenuation, in case natural attenuation fails, and the insurance complies with rules promulgated by the department and names this state as the insured. 4. If the voluntary party owns or controls the property, the voluntary party maintains and monitors the property as required under rules promulgated by the department and any contract entered into under those rules. 5. The voluntary party does not engage in activities that are inconsistent with the maintenance of the property. 6. The voluntary party has not obtained the certification under subd. 3. 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. 7. If the voluntary party owns or controls the property, the voluntary party allows the department, any authorized representative of the department, a representative of a company that has issued insurance required under subd. 3m., any party that possessed or controlled the hazardous substance or caused the discharge of the hazardous substance, and any consultant or contractor of any of those persons to enter the property to determine whether natural attenuation has failed and to take action to respond to the discharge if natural attenuation has failed. (af) Contaminated sediment. Except as provided in sub. (6), (6m), or (7), if there exists contaminated sediment on a property from a release of a hazardous substance on or originating from a property, the 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 discharges of hazardous substances on or originating from the property, if the release of those hazardous substances occurred before the date on which the department approves the environmental investigation of the property under subd. 1., and if all of the following occur at any time before or after the date of acquisition: 1. An environmental investigation of the property is conducted that is approved by the department. 2. The voluntary party removes all or part of the contaminated sediment and addresses any remaining contaminated sediment in a manner approved by the department, such that the environment is restored to the extent practicable with respect to the discharges and the harmful effects from the discharges are minimized in accordance with rules promulgated by the department and any contract entered into under those rules, except that with respect to contaminated sediment the environment is restored to the extent practicable with respect to the discharges and the harmful effects from the discharges are minimized as determined by the department by monitoring or sampling and in accordance with any contract entered into with the department’s approval.
REMEDIAL ACTION
292.15
3. The voluntary party obtains a certificate of completion from the department stating that the environment has been satisfactorily restored to the extent practicable with respect to the discharges and that the harmful effects from the discharges have been minimized. 3m. The voluntary party obtains and maintains insurance to cover the cost of complying with s. 292.11 (3) with respect to the contaminated sediment in the event that additional remedial action is necessary, unless additional action is not required under par. (b). The insurance shall conform with rules promulgated by the department and shall name the state as the insured. The department may waive the requirement to obtain and maintain insurance or accept a form of financial responsibility other than insurance if the hazardous substance contained in the contaminated sediment is not mercury, PCBs, as defined in s. 299.45 (1) (a), or dioxin and the department determines that insurance is not necessary. 4. If the voluntary party owns or controls the property, the voluntary party maintains and monitors the property in a manner required by the department and any contract entered into with the department’s approval. 5. The voluntary party does not engage in activities that are inconsistent with the maintenance of the property. 6. The voluntary party has not obtained the certificate under subd. 3. 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. 7. If the voluntary party owns or controls the property, the voluntary party allows the department, any authorized representative of the department, a representative of a company that has issued insurance required under subd. 3m., any party that possessed or controlled the hazardous substance or caused the discharge of the hazardous substance, and any consultant or contractor of those persons to enter the property to determine whether additional remedial action is necessary, subject to par. (b), and to take the necessary remedial action. (ag) Property affected by off-site discharge. Except as provided in sub. (6) or (7), for a property on which there exists a hazardous substance for which a voluntary party is exempt from liability under s. 292.13 (1) or (1m), a voluntary party is exempt from the provisions of 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 discharges of hazardous substances on or originating from the property, if the release of those hazardous substances occurred prior to the date on which the department approves the environmental investigation of the property under par. (a) 1., if par. (a) 1. and 4. to 6. apply and all of the following occur at any time before or after the date of acquisition: 1. The environment is restored to the extent practicable with respect to the discharges and the harmful effects from the discharges are minimized in accordance with rules promulgated by the department and any contract entered into under those rules, except that this requirement does not apply with respect to the hazardous substance for which the voluntary party is exempt from liability under s. 292.13 (1) or (1m). 2. The voluntary party obtains a certificate of completion from the department stating that the environment has been satisfactorily restored to the extent practicable with respect to the discharges and that the harmful effects from the discharges have been minimized, except with respect to the hazardous substance for which the voluntary party is exempt from liability under s. 292.13 (1) or (1m).
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REMEDIAL ACTION
3. The voluntary party obtains a written determination from the department under s. 292.13 (2) with respect to the hazardous substance for which the voluntary party is exempt from liability under s. 292.13 (1) or (1m). 4. The voluntary party continues to satisfy the conditions under s. 292.13 (1) (d) to (g) or (1m) (d) to (g). (am) Partial cleanup. 1m. Except as provided in subd. 2m., the department may approve a partial cleanup and issue a certificate of completion as provided in par. (a), (ae), (af), or (ag) that states that not all of the property has been satisfactorily restored or that not all of the harmful effects from a discharge of a hazardous substance have been minimized. Approval of a partial cleanup exempts a voluntary party from ss. 291.37 (2) and 292.11 (3), (4) and (7) (b) and (c) with respect to the portion of the property or hazardous substances cleaned up under this paragraph. In addition to meeting the requirements of par. (a), (ae), (af), or (ag), a certificate for a partial cleanup under this paragraph may be issued only if: a. Public health, safety or the environment will not be endangered by any hazardous substances remaining on or originating from the property after the partial cleanup, given the manner in which the property will be developed and used and any other factors that the department considers relevant to the endangerment of public health, safety or the environment. b. The activities associated with any proposed use or development of the property will not aggravate or contribute to the discharge of a hazardous substance and will not unduly interfere with, or increase the costs of, restoring the property and minimizing the harmful effects of the discharge of a hazardous substance. c. The owner of the property agrees to cooperate with the department to address problems caused by hazardous substances remaining on the property. Such cooperation shall include allowing access to the property or allowing the department or its authorized representatives to undertake activities on the property, including placement of borings, equipment and structures on the property. 2m. If there exists contaminated sediment in addition to a hazardous substance in soil or soil and groundwater on a property from a release of a hazardous substance on or originating from a property, the department may only approve a partial cleanup of the property or discharge with respect to the soil or soil and groundwater. The department may approve the partial cleanup only if, in addition to the requirements under subd. 1m., all of the following apply: a. An environmental investigation of the property or discharges is conducted in a manner approved by the department. b. The voluntary party, or a person who has entered into a legally enforceable agreement with the department, agrees to restore the environment to the extent practicable and minimize the harmful effects from the contaminated sediment on the property or the discharges resulting in contaminated sediment. c. The voluntary party or the person who has entered into a legally enforceable agreement under subd. 2m. b. provides financial assurance to the department, in the manner required by the department, in the event that the voluntary party or the person who has entered into a legally enforceable agreement under subd. 2m. b. fails to restore the environment to the extent practicable and minimize the harmful effects from the contaminated sediment on the property or the discharges resulting in contaminated sediment. (ar) Condition. The department may require the owner of the property to grant an easement or other interest in the property for any of the purposes specified in par. (am) as a condition of issuing a certificate under par. (am). (at) Subdivision, transfer, or other change in property. If, af-
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ter the date on which the voluntary party submits the application for exemption for the property, a parcel within the property is subdivided or transferred, a parcel within the property is combined with a parcel not within the property, or any other similar change is made to parcels affecting the property, the property that is included in an application to obtain an exemption under this section shall remain the same unless the voluntary party submits an application to the department to modify the property. If the voluntary party proposes to modify the property because of a subdivision, transfer, or other change to parcels affecting the property, the voluntary party shall submit a revised application or applications to obtain an exemption under this section for the modified property or properties as defined under sub. (1) (c). If the department approves a voluntary party’s proposed modification, each parcel within the modified property not otherwise excluded under sub. (6m) or (7) shall meet all of the requirements under par. (a), (ae), (af), or (ag) to be eligible for an exemption under this section. (av) Withdrawal by department. 1. If at any time after a voluntary party submits an application to obtain an exemption under this section the voluntary party fails to make reasonable progress toward completion of an environmental investigation and environmental restoration of the property identified in the application, the department may withdraw the voluntary party from the process of obtaining an exemption under this section. 2. If a voluntary party fails to provide to the department requested reports or updates on the status of an environmental investigation and environmental restoration of the property identified in the voluntary party’s application for one year or longer, the department may request a written status update from the applicant. If the voluntary party does not submit the status update within 60 days or submits a status update that does not show that reasonable progress is being made, the department may withdraw the voluntary party from the process of obtaining an exemption under this section. 3. If the department decides to withdraw a voluntary party under this paragraph, the department shall provide a written notice of its decision to the voluntary party and shall return any unused portion of any advance deposit made by the voluntary party, unless otherwise directed by the voluntary party. 4. A voluntary party may not reenter the process of obtaining an exemption under this section after being withdrawn under this paragraph unless the voluntary party pays the fees under sub. (5) and enters into an agreement with the department containing a schedule for conducting the environmental investigation and environmental restoration of the property identified in the voluntary party’s application. (b) Extent of exemptions. The exemptions provided in pars. (a), (ae), (af), (ag) and (am) continue to apply after the date of certification by the department under par. (a) 3., (ae) 3., (af) 3., or (ag) 2., or approval by the department under par. (am), notwithstanding the occurrence of any of the following: 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., (af) 2., or (ag) 1. 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., or fully complies with the requirements imposed by the department and any contract entered into with the department’s approval under par. (af) 2., but it is discovered that the cleanup fails to fully restore the environment and minimize the effects from a discharge of a hazardous substance. 3. The contamination from a hazardous substance that is the subject of the cleanup under par. (a) 2., (ae) 2., (af) 2., or (ag) 1. is
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discovered to be more extensive than anticipated by the voluntary party and the department. 4. If the voluntary party does not own or control the property, the person who owns or controls the property fails to maintain and monitor the property as required under rules promulgated by the department or any contract entered into under those rules. 5. If the voluntary party does not own or control the property, the person who owns or controls the property fails to allow the department, any authorized representative of the department, any representative of a company that has issued insurance required under par. (ae) 3m. or (af) 3m., any party that possessed or controlled the hazardous substance or caused the discharge of the hazardous substance, or any consultant or contractor of any of those persons to enter the property to determine whether natural attenuation has failed and to take action to respond to the discharge if natural attenuation has failed, or to determine whether additional remedial action is necessary and to take the necessary remedial action, unless additional action is not required under this paragraph. (c) Prohibition on action. The department of justice may not commence an action, against any voluntary party meeting the criteria of this subsection, under 42 USC 9607 to recover costs for which the voluntary party is exempt or under 43 CFR Part 11 to recover damages to natural resources resulting from a discharge for which the party is exempt under pars. (a), (ae), (af), (ag), (am), and (b). (d) Prohibition on requiring additional action to comply with a total maximum daily load. If a voluntary party is exempt from liability under par. (af), the department may not require the voluntary party to take additional action in relation to the discharge for which the voluntary party is exempt under par. (af) for the purpose of complying with a federally approved total maximum daily load under 33 USC 1313 (d) (1) (C), unless otherwise required under this section or s. 292.12. (e) Contract with insurer. If the department requires insurance under par. (ae) 3m. or (af) 3m., the department may contract with an insurer to provide insurance required under par. (ae) 3m. or (af) 3m. and may require voluntary parties to obtain coverage under the contract. (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., 5., and 7. 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. (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 sub. (2). 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 sub. (2). (6) LIENS. This section does not exempt property from any lien filed under s. 292.81 (3) for costs incurred by the department prior to the date that certification is issued under sub. (2) (a) 3., (ae) 3. or (ag) 2. (6m) LIMITATION ON ELIGIBILITY. A voluntary party is not eligible for the exemption provided in sub. (2) (af) if the remedial action taken by the voluntary party relating to contaminated sediment includes an engineering control.
REMEDIAL ACTION
292.16
(7) APPLICABILITY. This section does not apply to any of the following: (a) A hazardous waste treatment, storage or disposal facility that first begins operation after the date on which the voluntary party acquired the property. (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. (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. (d) A solid waste facility that is an approved facility. (e) A solid waste facility or waste site at which active remedial operation or treatment is required, including a site or facility where groundwater monitoring; leachate or groundwater collection or treatment; or active gas extraction is required as all or part of the remedial action. (f) A property that is listed or proposed to be listed on the national priorities list under 42 USC 9605 (a) (8) (B). History: 1993 a. 453; 1995 a. 225; 1995 a. 227 s. 712, 714, 715; 1997 a. 27, 237; 1999 a. 9, 185; 2001 a. 16; 2005 a. 418; 2007 a. 96; 2011 a. 103; 2015 a. 204; 2017 a. 70. An interim decision that announced that the Department of Natural Resources was exercising its discretion under sub. (2) (am) to offer voluntary parties partial liability exemptions, rather than broad liability exemptions, was a guidance document under s. 227.01 (3m) (a). Wisconsin Manufacturers & Commerce, Inc. v. Natural Resources Board, 2025 WI 26, 416 Wis. 2d 561, 21 N.W.3d 718, 22-0718. The Land Recycling Act. Borchert & Burke. Wis. Law. Aug. 1994. Cross-reference: See also chs. NR 714, 716, 718, 720, 722, 724, 726, 750, and 754, Wis. adm. code.
292.16 Responsibility of certain municipalities acquiring closed landfills. (1) DEFINITION. In this section: (a) “Generator” has the meaning given in s. 292.35 (1) (b). (b) “Transporter” has the meaning given in s. 292.35 (1) (g). (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 October 14, 1997. (3) CONDITIONS FOR APPROVAL. The department shall approve an application under sub. (2) if all of the following apply: (a) The landfill is closed when the municipality acquires the property. (b) The landfill closure complies with all rules of the department at the time of the application under sub. (2). (c) The municipality did not have an ownership interest in the landfill while the landfill was in operation. (d) The municipality enters into an agreement with the department that contains requirements for the municipality to maintain the property. (e) The department determines that an exemption from liability under this section is in the public interest. (f) The landfill was privately owned while it was in operation. (g) The landfill has caused groundwater contamination. (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). (i) The remedial action approved by the department authorized a recreational use for the property and was completed by December 31, 1995. (4) SCOPE OF EXEMPTION. An approval by the department under sub. (3) exempts the municipality from liability imposed
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REMEDIAL ACTION
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. (5) REQUIREMENTS. If the department approves a municipality’s application under sub. (3), the municipality shall do all of the following: (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. (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. History: 1997 a. 27; 2013 a. 173 s. 33. Cross-reference: See also ch. NR 708, Wis. adm. code.
292.19 Responsibility of persons conducting investigations. (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. (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. History: 1997 a. 27.
292.21 Responsibility of lenders and representatives. (1) RESPONSIBILITY OF LENDERS; LENDING ACTIVITIES; ACQUISITION OF PROPERTY. (a) Lending. 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. 2. Subdivision 1. does not apply in any of the following situations: a. A lender physically causes a discharge. 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. 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. (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: 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. 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. 3. If the lender conducts an investigation or performs reme-
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dial action, the lender does so in accordance with department rules. 4. The lender does not physically cause a discharge. 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. (c) Acquisition of real property. 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: 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. c. The lender notifies the department, in accordance with s. 292.11 (2), of any known discharge of a hazardous substance. 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. 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. 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. 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. h. The lender agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge. i. The lender agrees to any other condition that the depart-
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ment determines is reasonable and necessary to ensure that the department or other person described in subd. 1. g. can adequately respond to the discharge. 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: a. A visual inspection of the real property. 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. 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. d. A review of historic and recent aerial photographs of the real property, if available. e. A review of the environmental licenses, permits or orders issued with respect to the real property. f. An evaluation of the results of any environmental sampling and analysis that has been conducted. 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); and the department’s database of sites or facilities and other properties that are environmentally contaminated required by s. 292.31 (1) (a). 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. 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. 3. An environmental assessment filed under subd. 1. d. does not constitute notice required under s. 292.11 (2). (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: 1. Not more than 30 days after entry onto the real property where the personal property or fixtures are located, the lender notifies the department and the borrower of any decision not to accept specific personal property or fixtures. 2. Not more than 30 days after entry onto the real property where the personal property or fixtures are located, the lender provides the department with a written general description of the personal property or fixtures, the location of the personal prop-
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erty or fixtures on the real property and the location of the real property by street address. 3. The lender, within its ability to do so, permits reasonable access to the personal property or fixtures to the department or the borrower or others acting on the borrower’s behalf. 4. The lender does not engage in the operation of a business at the location of the personal property or fixtures, completion of work in progress or other actions associated with conducting the conclusion of the borrower’s business except for actions that are undertaken to protect the property and are approved by the department in writing. (e) Rules; approvals. The department may promulgate rules further specifying the activities to be carried out by a lender for the environmental assessment required under par. (c) 1. d. The department may not, by rule, require a lender to undertake sampling and analysis beyond that required under par. (c) 2. h. and i. in order to determine the degree and extent of contamination or require a lender to perform any remedial action to clean any discharge. The department may approve, by rule or in a site-specific approval, the use of reliable methods of identification other than the collection and laboratory analysis of samples. (2) RESPONSIBILITY OF REPRESENTATIVES. (a) A representative who acquires title to, or possession or control of, real or personal property is not personally liable under this chapter for a discharge of a hazardous substance if all of the following circumstances apply: 1. The representative acquires title to, or possession or control of, the real or personal property in the capacity of a representative. 2. The representative, through action or inaction, does not knowingly, willfully or recklessly cause a discharge of a hazardous substance. 3. The representative does not physically cause a discharge of a hazardous substance. 4. The representative does not have a beneficial interest in a trust, estate or similar entity that owns, possesses or controls the real or personal property. 5. The representative does not knowingly, willfully or recklessly fail to notify the department in accordance with s. 292.11 (2) of the discharge of a hazardous substance. (b) Paragraph (a) does not apply to any of the following: 1. A representative that knew or should have known that the trust, estate or similar entity for which the representative is acting as a representative was established, or that assets were transferred to the trust, estate or similar entity, in order to avoid responsibility for a discharge of a hazardous substance. 2. A representative that fails to act in good faith to cause the trust, estate or similar entity for which the representative is acting as a representative to take the actions described in s. 292.11 (3) or to reimburse the department under s. 292.11 (7) (b). It is not a lack of good faith for a representative to resign as representative, to seek a court order directing the representative to act or refrain from acting or to challenge the department by any legal means. (c) This subsection does not limit the responsibility of any trust, estate or similar entity to take the actions required under s. 292.11 (2), (3), (4) or (7) (c) or any other provision of this chapter or to reimburse the department under s. 292.11 (7) (b). History: 1995 a. 227 s. 708, 709, 993; 1997 a. 27; 1999 a. 9; 2005 a. 418. Cross-reference: See also ch. NR 749, Wis. adm. code.
292.23 Responsibility of local governmental units; solid waste. (1) DEFINITION. In this section: (a) “Local governmental unit” means a municipality, a redevelopment authority created under s. 66.1333, a public body des-
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ignated by a municipality under s. 66.1337 (4), a community development authority, or a housing authority. (b) “Solid waste facility” has the meaning given in s. 289.01 (35). (c) “Waste site” has the meaning given in s. 289.01 (41). (2) EXEMPTION FROM LIABILITY. Except as provided in sub. (3), a local governmental unit is exempt from s. 289.05, and rules promulgated under that section, with respect to property acquired by the local governmental unit before, on, or after June 3, 2006, if any of the following applies: (a) The local governmental unit acquired the property through tax delinquency proceedings or as the result of an order by a bankruptcy court. (b) The local governmental unit acquired the property from a local governmental unit that is exempt under this subsection with respect to the property. (c) The local governmental unit acquired the property through a condemnation or other proceeding under ch. 32. (d) The local governmental unit acquired the property for the purpose of slum clearance or blight elimination. (e) The local governmental unit acquired the property through escheat. (f) The local governmental unit acquired the property using funds appropriated under s. 20.866 (2) (ta) or (tz). (3) EXCEPTIONS. (a) Subsection (2) does not apply with respect to environmental pollution or a discharge of a hazardous substance caused by any of the following: 1. An action taken by the local governmental unit. 2. A failure of the local governmental unit to take appropriate action to restrict access to the property in order to minimize costs or damages that may result from unauthorized persons entering the property. 3. A failure of the local governmental unit to sample and analyze unidentified substances in containers stored aboveground on the property. 4. A failure of the local governmental unit to remove and properly dispose of, or to place in a different container and properly store, any hazardous substance stored aboveground on the property in a container that is leaking or is likely to leak. (b) Subsection (2) does not apply if, after considering the intended development and use of the property, the department determines that action is necessary to reduce to acceptable levels any substantial threat to public health or safety when the property is developed or put to that intended use, the department directs the local governmental unit to take that necessary action, and the local governmental unit does not take that action as directed. (c) Subsection (2) only applies if the local governmental unit agrees to allow the department, any authorized representatives of the department, any party that possessed or controlled a hazardous substance that was discharged or that caused environmental pollution or the discharge of a hazardous substance, and any consultant or contractor of such a party to enter the property to take action to respond to the environmental pollution or discharge. (d) Subsection (2) does not apply to property described in sub. (2) (f) unless the local governmental unit enters into an agreement with the department to ensure that the conditions in pars. (a) and (b) are satisfied. (e) Subsection (2) does not apply to any solid waste facility or waste site that was operated by the local governmental unit or was owned by the local governmental unit while it was operated. (f) Subsection (2) does not apply to a solid waste facility that was licensed under s. 144.44, 1993 stats., or s. 289.31. (g) Subsection (2) does not apply to property at which the lo-
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cal governmental unit disposed of waste that caused environmental pollution or a discharge of a hazardous substance at the property. (h) Subsection (2) does not apply to waste generated on the property by the local governmental unit, its agents, or its contractors. (i) Subsection (2) does not apply if the local governmental unit undertakes or authorizes construction on the property without the approval of the department or if the local government unit undertakes an activity that interferes with a closed solid waste facility or waste site and that causes a threat to public health, safety, or welfare. (j) Subsection (2) only applies to property with respect to which, before the local governmental unit acquired the property, the department imposed requirements related to health or safety for the maintenance of an active leachate or methane collection system, of a cap over waste on the property, or of a groundwater or gas monitoring system if the local governmental unit complies with those requirements. (k) Subsection (2) does not exempt a local governmental unit from land use restrictions required by the department, including those that are necessary to prevent damage to a cap over waste on the property or to otherwise prevent uses of the property that may cause a threat to public health or safety. History: 2005 a. 418; 2007 a. 96.
292.24 Responsibility of local governmental units; hazardous waste. (1) DEFINITION. In this section, “local governmental unit” has the meaning given in s. 292.11 (9) (e) 1. (2) EXEMPTION FROM LIABILITY. Except as provided in sub. (3), a local governmental unit is exempt from ss. 291.25 (1) to (5), 291.29 and 291.37, and rules promulgated under those provisions, with respect to the existence of a hazardous waste discharge on property acquired in a way or for a purpose described in s. 292.11 (9) (e) 1m., if all of the following occur at any time before or after the date of acquisition: (a) An environmental investigation of the property is conducted that is approved by the department and that identifies any hazardous waste discharges that occurred on the property. (b) The hazardous waste discharges identified by the investigation under par. (a) are cleaned up by restoring the environment to the extent practicable with respect to the discharges and minimizing the harmful effects from the discharges in accordance with rules promulgated by the department and any contract entered into under those rules. (c) The local governmental unit obtains an approval from the department stating that the property has been satisfactorily restored to the extent practicable with respect to the hazardous waste discharges and that the harmful effects from the discharges have been minimized. (d) The local governmental unit maintains and monitors the property as required under rules promulgated by the department and any contract entered into under those rules. (e) The local governmental unit does not engage in activities that are inconsistent with the maintenance of the property. (f) The local governmental unit has not obtained the certification under par. (c) by fraud or misrepresentation, by the knowing failure to disclose material information or under circumstances in which the local governmental unit knew or should have known about more discharges of hazardous waste than were revealed by the investigation conducted under par. (a). (g) The local governmental unit did not cause the discharge of any hazardous waste identified on the property. (3) APPLICABILITY. Subsection (2) does not apply to any of the following:
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(a) A hazardous waste treatment, storage or disposal facility that first begins operation after the date on which the local governmental unit acquired the property. (b) A licensed hazardous waste treatment, storage or disposal facility operated on the property before the date on which the local governmental unit acquired the property and that is operated after the date on which the local governmental unit acquired the property. (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. History: 1999 a. 9.
292.25 Report on impact of exemptions from liability. (1) The department shall biennially determine all of the following: (a) The number of sites for which a person is seeking to qualify for an exemption under s. 292.15. (b) The number of sites for which a certificate of completion was issued under s. 292.15. (c) The number of sites for which a certificate of completion was issued under s. 292.15 at which it is discovered that the cleanup failed or at which additional hazardous substances are found after the certificate of completion was issued. (d) The number of sites described in par. (b) at which the department has determined that it is necessary to conduct remedial action using moneys from the environmental fund and the estimated costs of performing that remedial action. (e) The number of sites for which a claim was made against an insurance policy required under s. 292.15 (2) (ae). (f) The number of sites for which a claim was made against an insurance policy required under s. 292.15 (2) (af). (2) No later than September 15 of each even-numbered year, the department shall submit a report describing its determinations under sub. (1) to the legislature under s. 13.172 (2), to the governor and to the department of administration. (3) The department may require a person to provide information necessary for the department to make the determinations under sub. (1). History: 1999 a. 9; 2015 a. 204.
292.255 Report on brownfield efforts. The department of natural resources, the department of administration, and the Wisconsin Economic Development Corporation shall submit a report evaluating the effectiveness of this state’s efforts to remedy the contamination of, and to redevelop, brownfields, as defined in s. 238.13 (1) (a). History: 1999 a. 9, 84; 2007 a. 20; 2011 a. 32.
292.26 Civil immunity; local governmental units. (1) In this section, “local governmental unit” has the meaning given in s. 292.11 (9) (e) 1. (2) Except as provided in sub. (3), a local governmental unit is immune from civil liability related to the discharge of a hazardous substance on or from property formerly owned or controlled by the local governmental unit if the property is no longer owned by the local governmental unit at the time that the discharge is discovered and if any of the following applies: (a) The local governmental unit acquired the property through tax delinquency proceedings or as the result of an order by a bankruptcy court. (b) The local governmental unit acquired the property from a local governmental unit that acquired the property under a method described in par. (a).
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(c) The local governmental unit acquired the property through condemnation or other proceeding under ch. 32. (d) The local governmental unit acquired the property for the purpose of slum clearance or blight elimination. (3) Subsection (2) does not apply with respect to a discharge of a hazardous substance caused by an activity conducted by the local governmental unit while the local governmental unit owned or controlled the property. History: 1997 a. 27.
292.31 Environmental repair. (1) DATABASE; ANALYSIS. (a) Database. 1. The department shall compile, maintain, and make available to the public a database of all sites or facilities and other properties at which the discharge of a hazardous substance or other environmental pollution has been reported to the department. The department shall update the database regularly. 3. The decision of the department to include a site or facility or other property on the database under subd. 1. or exclude a site or facility or other property from the database is not subject to judicial review. 4. Notwithstanding s. 227.01 (13) or 227.10 (1), the database under subd. 1. is not a rule. (b) Investigation; analysis. 1. The department may take direct action under subd. 2. or 3. or may enter into a contract with any person to take the action. 2. The department may conduct an investigation, analysis and monitoring of a site or facility and areas surrounding the site or facility to determine the existence and extent of actual or potential environmental pollution from the site or facility including, but not limited to, monitoring by means of installing test wells or by testing water supplies. The department may conduct an investigation to identify persons who are potentially responsible for actual or potential environmental pollution from a site or facility. If the department conducts an investigation to identify persons who are potentially responsible for actual or potential environmental pollution from a site or facility, the department shall make a reasonable effort to identify as many persons as possible responsible for the environmental pollution. 3. The department may determine whether a site or facility presents a substantial danger to public health or welfare or the environment and evaluate the magnitude of the danger. (d) Access to information. Upon the request of any officer, employee or authorized representative of the department, any person who generated, transported, treated, stored or disposed of solid or hazardous waste which may have been disposed of at a site or facility under investigation by the department shall provide the officer, employee or authorized representative access to any records or documents in that person’s custody, possession or control which relate to: 1. The type and quantity of waste generated, transported, treated or stored which was disposed of at the site or facility and the dates of these activities. 2. The identity of persons who generated, transported, treated or stored waste which was disposed of at the site or facility. 3. The identity of subsidiary or parent corporations, as defined in sub. (8) (a) 3., of persons who generated, transported, treated or stored waste which was disposed of at the site or facility. (2) ENVIRONMENTAL RESPONSE RULES. The department shall promulgate rules relating to investigation and remedial action for sites or facilities and other properties at which the air, land, or waters of the state have been affected by the discharge of a hazardous substance or other environmental pollution, including all of the following provisions:
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(a) Methods for investigating the degree and extent of contamination for actions under sub. (3). (b) Methods for remedial action under sub. (3). (c) Methods and criteria for determining the appropriate extent of remedial action under sub. (3). (d) Means of ensuring that the costs of remedial action are appropriate in relation to the associated benefits over the period of potential human exposure to substances released by the site or facility. (e) Appropriate roles and responsibilities under this section for federal, state and local governments and for interstate and nongovernmental entities. (3) ENVIRONMENTAL REPAIR. (b) Department authority. 1. The department may take direct action under subds. 2. to 9. or may enter into a contract with any person to take the action. 2. The department may take action to avert potential environmental pollution from the site or facility. 3. The department may repair the site or facility or isolate the waste. 4. The department may abate, terminate, remove and remedy the effect of environmental pollution from the site or facility. 5. The department may restore the environment to the extent practicable. 6. The department may establish a program of long-term care, as necessary, for a site or facility which is repaired or isolated. 7. The department may provide temporary or permanent replacements for private water supplies damaged by a site or facility. In this subdivision, “private water supply” means a well which is used as a source of water for humans, livestock, as defined in s. 95.80 (1) (b), or poultry. 8. The department may assess the potential health effects of the occurrence, not to exceed $10,000 per occurrence. 9. The department may take any other action not specified under subds. 2. to 8. consistent with this subsection in order to protect public health, safety or welfare or the environment. (c) Sequence of remedial action. In determining the sequence for taking remedial action under this subsection, the department shall consider the significance to public health, the community, and the environment of each site or facility, the amount of funds available, the information available about each site or facility, the willingness and ability of an owner, operator, or other responsible person to undertake or assist in remedial action, the availability of federal funds under 42 USC 9601, et seq., and other relevant factors. The department shall give the highest priority to remedial action at sites or facilities which have caused contamination of a municipal water system. (d) Emergency responses. Notwithstanding rules promulgated under this section or the considerations for taking action under par. (c), the department may take emergency action under this subsection and subs. (1) and (7) at a site or facility if delay will result in imminent risk to public health or safety or the environment. The department is not required to hold a hearing under par. (f) if emergency action is taken under this paragraph. The decision of the department to take emergency action is a final decision of the agency subject to judicial review under ch. 227. (e) Access to property. Any officer, employee or authorized representative of the department may enter onto any site or facility and areas surrounding the site or facility at reasonable times and upon notice to the owner or occupant to take action under this section. Notice to the owner or occupant is not required if the delay required to provide this notice is likely to result in an imminent risk to public health or welfare or the environment. (f) Notice; hearing. The department shall publish a class 1
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notice, under ch. 985, shall publish the notice on its Internet website, and, upon request, shall provide the notice to interested members of the public, prior to taking remedial action under this subsection and subs. (1) and (7). The department’s notice to interested members of the public may be given through an electronic notification system established by the department. The notice shall describe the proposed remedial action, the amount and purpose of any proposed expenditure, the name and address of the facility that is the subject of the proposed remedial action, a brief description of the proposed remedial action, and information indicating where more information regarding the proposed remedial action may be viewed on the department’s Internet website. For the purpose of determining the date on which notice is provided under this paragraph, the date on which the department first publishes the notice on its Internet website shall be considered the date of notice. Except as provided under par. (d), the department shall provide a hearing to any person who demands a hearing within 30 days after the notice is published for the purpose of determining whether the proposed remedial action and any expenditure is within the scope of this section and is reasonable in relation to the cost of obtaining similar materials and services. The department is not required to conduct more than one hearing for the remedial action proposed at a single site or facility. Notwithstanding s. 227.42, the hearing shall not be conducted as a contested case. The decision of the department to take remedial action under this section is a final decision of the agency subject to judicial review under ch. 227. (4) MONITORING COSTS AT NONAPPROVED FACILITIES OWNED OR OPERATED BY MUNICIPALITIES. Notwithstanding the environmental response rules under sub. (2) or the environmental repair authority, remedial action sequence, and emergency response requirements under sub. (3), the department shall pay that portion of the cost of any monitoring requirement which is to be paid under s. 289.31 (7) (f) from the appropriation under s. 20.370 (4) (dv) prior to making other payments from that appropriation. (6) PAYMENTS FROM THE INVESTMENT AND LOCAL IMPACT FUND. The department may expend moneys received from the investment and local impact fund for the purposes specified under sub. (3) only for approved mining facilities and only if moneys in the environmental fund that are available for environmental repair are insufficient to make complete payments. The amount expended by the department under this subsection may not exceed the balance in the environmental fund that is available for environmental repair at the beginning of that fiscal year or 50 percent of the balance in the investment and local impact fund at the beginning of that fiscal year, whichever amount is greater. (7) IMPLEMENTING THE FEDERAL SUPERFUND ACT. (a) The department may advise, consult, assist and contract with other interested persons to take action to implement the federal comprehensive environmental response, compensation and liability act of 1980, 42 USC 9601, et seq., in cooperation with the federal environmental protection agency. These actions include all of the actions under subs. (1) to (3). The department may enter into agreements with the federal environmental protection agency. (am) 1. The department may accept the transfer of an interest in property that was acquired by the federal environmental protection agency as part of a remedial action under the federal Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC 9601 to 9675. 2. The department may acquire an interest in property from any person as part of a remedial action conducted in cooperation with the federal environmental protection agency if the acquisition is necessary to implement the remedy. Under this subdivision, the department may acquire an interest in property that is necessary to ensure that restrictions on the use of land or ground-
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water are enforceable. The department may expend moneys from the appropriations under ss. 20.370 (4) (dv) and 20.866 (2) (tg) if necessary to compensate a person for an interest in property acquired by the department under this subdivision. 3. The department may enforce the terms of any interest in property that it acquires under this paragraph. (b) The department may expend moneys from the appropriations under ss. 20.370 (4) (dv) and 20.866 (2) (tg) as required under 42 USC 9601, et seq. The department shall promulgate by rule criteria for the expenditure of moneys from the appropriations under ss. 20.370 (4) (dv) and 20.866 (2) (tg). The criteria shall include consideration of the amount of moneys available in the appropriations under ss. 20.370 (4) (dv) and 20.866 (2) (tg), the moneys available from other sources for the required sharing of costs, the differences between public and private sites or facilities, the potential for cost recovery from responsible parties, and any other appropriate factors. (c) 1. The department may require a municipality to pay a reasonable share of the amount expended by the department for a project under par. (b). The department shall base any share charged to a municipality for a project under par. (b) on the following factors: a. The municipality’s responsibility for the site or facility affected by the project. b. The benefit that the municipality receives from the project. c. The municipality’s ability to pay for the project. 2. The total amount charged to all municipalities who are charged for the project may not exceed 50 percent of the amount expended by the department under par. (b) for the project. 3. The department shall promulgate rules establishing criteria for determining the responsibility, for the purposes of this subsection, of a municipality for a site or facility affected by the project under par. (b); the benefit a municipality receives from a project under par. (b); and the ability of a municipality to pay for a project under par. (b). 4. All moneys received under this paragraph shall be credited to the environmental fund for environmental management. (d) The department may enter into an agreement with a responsible party under the federal Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC 9601 to 9675, to provide management and technical support for a remedial action under the act. A responsible party shall reimburse the department for the costs the department incurs under an agreement, using the hourly billing rate calculated under s. NR 750.07 (2), Wis. Adm. Code. (8) RECOVERY OF EXPENDITURES. (a) Definitions. In this subsection: 1. “Operator” means any person who operates a site or facility or who permits the disposal of waste at a site or facility under his or her management or control for consideration, regardless of whether the site or facility remains in operation and regardless of whether the person operates or permits disposal of waste at the time any environmental pollution occurs. This term includes a subsidiary or parent corporation. 2. “Owner” means any person who owns or who receives direct or indirect consideration from the operation of a site or facility regardless of whether the site or facility remains in operation and regardless of whether the person owns or receives consideration at the time any environmental pollution occurs. This term includes a subsidiary or parent corporation. 3. “Subsidiary or parent corporation” means any business entity, including a subsidiary, parent corporation or other business arrangement which has elements of common ownership or control or uses a long-term contractual arrangement with any per-
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son to avoid direct responsibility for conditions at a site or facility. (b) Applicability. 1. This subsection does not apply to the release or discharge of a substance which is in compliance with a permit, license, approval, special order, waiver or variance issued under this chapter or ch. 30, 31 or 283, or under corresponding federal statutes or regulations. 2. This subsection applies to an owner who purchases the land where a site or facility is located only if the owner knew or should have known of the existence of the site or facility at the time of purchase. 3. This subsection does not apply to the release or discharge of high-volume industrial waste used in a highway improvement project under s. 84.078. (c) Persons responsible. 1. An owner or operator is responsible for conditions at a site or facility which presents a substantial danger to public health or welfare or the environment if the person knew or should have known at the time the disposal occurred that the disposal was likely to result in or cause the release of a substance into the environment in a manner which would cause a substantial danger to public health or welfare or to the environment. 2. Any person, including an owner or operator and including a subsidiary or parent corporation which is related to the person, is responsible for conditions at a site or facility which present a substantial danger to public health or welfare or the environment if: a. The person violated any applicable statute, rule, plan approval or special order in effect at the time the disposal occurred and the violation caused or contributed to the condition at the site or facility; or b. The person’s action related to the disposal caused or contributed to the condition at the site or facility and would result in liability under common law in effect at the time the disposal occurred, based on standards of conduct for that person at the time the disposal occurred. (d) Right of action. A right of action shall accrue to the state against any person responsible under par. (c) if an expenditure is made for environmental repair at the site or facility or if an expenditure is made under sub. (7). (e) Interest payment. If the department authorizes an amount that the state is entitled to recover under this subsection to be paid over time, it shall require monthly payments of interest, at a rate determined by the department, on the unpaid balance of that amount. (f) Action to recover costs. The attorney general shall take action as is appropriate to recover expenditures to which the state is entitled. (g) Disposition of funds. If the original expenditure was made from the environmental repair fund, under s. 25.46, 1987 stats., or the environmental fund, the net proceeds of the recovery shall be paid into the environmental fund for environmental management. If the original expenditure was made from the investment and local impact fund, the net proceeds of the recovery shall be paid into the investment and local impact fund. (h) Cleanup agreements; waiver of cost recovery. The department and any person who is responsible under par. (c) may enter into an agreement regarding actions which the department is authorized to take under sub. (3). In the agreement, the department may specify those actions under sub. (3) which the responsible person may take. As part of the agreement, the department may agree to reduce the amount which the state is entitled to recover under this subsection or to waive part or all of the liability which the responsible person may have under this subsection. (i) Lien. Any expenditures made by the department under
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sub. (1), (3) or (7) shall constitute a lien upon the property for which the expenses are incurred, as provided in s. 292.81. (9) RELATION TO OTHER LAWS. The department shall coordinate its efforts under this section with the federal environmental protection agency acting under the comprehensive environmental response, compensation and liability act, 42 USC 9601, et seq. The department may not duplicate activities or efforts of the federal environmental protection agency if such duplication is prohibited under 42 USC 9601, et seq. (10) LIABILITY. (a) No common law liability, and no statutory liability which 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. (b) If a person takes any remedial action at a site or facility, whether or not an agreement is entered into with the department under sub. (8) (h), any agreement and the action taken are not evidence of liability or an admission of liability for any potential or actual environmental pollution. History: 1995 a. 227 ss. 605 to 610, 612; 1995 a. 378 s. 45; 1997 a. 27; 2001 a. 16; 2005 a. 418; 2009 a. 28; 2011 a. 167; 2013 a. 20; 2015 a. 197 s. 51; 2017 a. 59; 2017 a. 365 s. 112. Cross-reference: See also chs. NR 708, 714, 716, 718, 720, 722, 724, 726, and 747, Wis. adm. code.
292.33 Local government cost recovery cause of action. (1) DEFINITION. In this section “local governmental unit” has the meaning given in s. 292.11 (9) (e) 1. (2) CAUSE OF ACTION. Except as provided in sub. (6), a local governmental unit may recover costs as provided in sub. (4) from a responsible person described in sub. (3) if the costs are incurred in connection with a property acquired as provided in s. 292.11 (9) (e) 1m. on which a hazardous substance has been discharged. (3) RESPONSIBLE PERSONS. (a) Except as provided in par. (b), a local governmental unit may recover costs in an action under this section from any of the following: 1. A person who, at the time that the local governmental unit acquired the property, possessed or controlled the hazardous substance that was discharged on the property. 2. A person who caused the discharge of the hazardous substance on the property. (b) A local governmental unit may not recover costs in an action under sub. (2) from a person listed in par. (a) if any of the following applies: 1. The person is exempt from liability under s. 292.11 (9) (e), 292.13, 292.15, 292.16, 292.19 or 292.21 with respect to the discharge that is the subject of the action. 2. The person has entered into a consent order under this chapter or ch. 289 or 291 or an agreement under s. 292.11 (7) (d) or 292.31 (8) (h) with respect to the discharge that is the subject of the action and the person is in compliance with the consent order or agreement. 3. The person is exempt from liability under s. 292.35 (9) (e) with respect to the discharge that is the subject of the action. 4. The discharge that was caused by the person and that is the subject of the action was in compliance with a permit, license, approval, special order, waiver or variance issued under ch. 283 or 285 or under corresponding federal statutes or regulations. (4) RECOVERABLE COSTS. (a) Except as provided in par. (b), in an action under this section a local governmental unit may recover the reasonable and necessary costs that it incurs for all of the following: 1. Investigating environmental contamination on the property and planning remedial activities described in subd. 2.
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2. Conducting remedial activities to restore the property for its intended future use. 3. Administering the activities under subds. 1. and 2. and bringing the action under this section, including costs, disbursements and engineering fees but excluding attorney fees. (b) The costs determined under par. (a) shall be reduced by the fair market value of the property after completion of the activities under par. (a) 2. (c) Recoverable costs under this subsection may not be reduced by the amount of any state or federal moneys received by the local governmental unit for any of the activities under par. (a). (d) 1. In an action under this section, the liability of a responsible person described in sub. (3) (a) 2. is limited to the amount that bears the same proportion to the total costs under par. (a), adjusted as provided in par. (b), as the amount of the environmental pollution on the property from the discharge caused by the responsible person bears to all of the environmental pollution on the property from discharges of hazardous substances. 2. In an action under this section, the liability of a responsible person described in sub. (3) (a) 1. is limited to the amount of the total costs under par. (a), adjusted as provided in par. (b), that the local governmental unit is unable to recover from responsible parties described in sub. (3) (a) 2. less the amount that the local governmental unit is unable to recover because of the exemptions in sub. (3) (b) 3. and 4. (5) REPAYING STATE ASSISTANCE. If a local governmental unit that recovers costs under this section received money from this state, other than under s. 292.11 (7) or 292.31 (1), (3) or (7), for any of the activities under sub. (4) (a), the local governmental unit shall reimburse to the state an amount that bears the same proportion to the total amount recovered under this section as the amount received from the state, other than under s. 292.11 (7) or 292.31 (1), (3) or (7), bears to the total costs under sub. (4) (a) adjusted as provided in sub. (4) (b). (6) EXCEPTION. A local governmental unit may not recover costs under this section for remedial activities conducted on a property or portion of a property with respect to a discharge after the department of natural resources, the department of safety and professional services, or the department of agriculture, trade and consumer protection has indicated that no further remedial activities are necessary on the property or portion of the property with respect to the discharge. (7) LIMITATION OF ACTION. An action under this section shall be commenced within 6 years after the date that the local governmental unit completes the activities under sub. (4) (a) 2. or be barred. History: 1999 a. 9; 2011 a. 32.
292.35 Local governmental unit negotiation and cost recovery. (1) DEFINITIONS. In this section: (am) “Financial assistance” means money, other than a loan, provided by a governmental unit that is not a responsible party to pay a portion of the cost of investigation and remedial action for a site or facility. (b) “Generator” means a person who, by contract, agreement or otherwise, either arranges or arranged for disposal or treatment, or arranges or arranged with a transporter for transport for disposal or treatment, of a hazardous substance owned or possessed by the person, if the disposal or treatment is done by another person at a site or facility owned and operated by another person and the site or facility contains the hazardous substance. (bm) “Local governmental unit” means a municipality, a redevelopment authority created under s. 66.1333 or a public body designated by a municipality under s. 66.1337 (4). (c) “Owner or operator” means any of the following:
May 22, 2026, are designated by NOTES. (Published 5-22-26)
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Updated 23-24 Wis. Stats.
1. If the property is taken for tax delinquency, a person who owns or operates a site or facility at the time that the site or facility is taken for tax delinquency. 2. A person who owns or operates a site or facility at the time that the disposal or discharge of a hazardous substance at the site or facility occurs. (e) “Responsible party” means a generator, an owner or operator, a transporter or a person who possesses or controls a hazardous substance that is discharged or disposed of or who causes the discharge or disposal of a hazardous substance. (f) “Site or facility” means an approved facility, an approved mining facility, a nonapproved facility, a waste site or any site where a hazardous substance is discharged on or after May 21, 1978. (g) “Transporter” means a person who accepts or accepted a hazardous substance for transport to a site or facility. (2) APPLICABILITY. This section only applies to a site or facility if one of the following criteria is satisfied: (a) The site or facility is owned by a local governmental unit. (b) A local governmental unit that owns a portion of the site or facility commits itself, by resolution of its governing body, to paying more than 50 percent of the amount equal to the difference between the cost of investigation and remedial action for the site or facility and any financial assistance received for the site or facility. (2g) IDENTIFICATION OF RESPONSIBLE PARTIES. (a) A local governmental unit that intends to use the cost recovery procedures in this section shall attempt to identify all responsible parties. All information obtained by the local governmental unit regarding responsible parties is a public record and may be inspected and copied under s. 19.35. (b) Upon the request of an employee or authorized representative of the local governmental unit, or pursuant to a special inspection warrant under s. 66.0119, any person who generated, transported, treated, stored or disposed of a hazardous substance that may have been disposed of or discharged at the site or facility or who is or was an owner or operator shall provide the employee or authorized representative access to any records or documents in that person’s custody, possession or control that relate to all of the following: 1. The type and quantity of hazardous substance that was disposed of or discharged at the site or facility and the dates of the disposal or discharge. 2. The identity of any person who may be a responsible party. 3. The identity of subsidiary or parent corporations, as defined in s. 292.31 (8) (a) 3., of any person who may be a responsible party. (c) The local governmental unit shall maintain a single repository that is readily accessible to the public for all documents related to responsible parties, the investigation, the remedial action and plans for redevelopment of the property. (2r) PRELIMINARY REMEDIAL ACTION PLAN. (a) The local governmental unit shall, in consultation with the department, prepare a draft remedial action plan. (b) Upon completion of the draft remedial action plan, the local governmental unit shall send written notice to all responsible parties identified by the local governmental unit, provide public notice and conduct a public hearing on the draft remedial action plan. The notice to responsible parties shall offer the person receiving the notice an opportunity to provide information regarding the status of that person or any other person as a responsible party, notice and a description of the public hearing and a description of the procedures in this section. At the public hearing,
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the local governmental unit shall solicit testimony on whether the draft remedial action plan is the least costly method of meeting the standards for remedial action promulgated by the department by rule. The local governmental unit shall accept written comments for at least 30 days after the close of the public hearing. (c) Upon the conclusion of the period for written comment, the local governmental unit shall prepare a preliminary remedial action plan, taking into account the written comments and comments received at the public hearing and shall submit the preliminary remedial action plan to the department for approval. The department may approve the preliminary remedial action plan as submitted or require modifications. (3) OFFER TO SETTLE; SELECTION OF UMPIRE. (a) Upon receiving the department’s approval of the preliminary remedial action plan, the local governmental unit shall serve an offer to settle regarding the contribution of funds for investigation and remedial action at the site or facility on each of the responsible parties identified by the local governmental unit, using the procedure for service of a summons under s. 801.11 and shall notify the department that the offer to settle has been served. The local governmental unit shall include in the offer to settle all of the following information: 1. The amount of the offer and a rationale for the amount. 2. The names, addresses and contact persons, to the extent known, for all of the responsible parties identified by the local governmental unit. 3. The location and availability of documents that support the claim of the local governmental unit against the responsible party. 4. The location of the public repository where documents relating to the site or facility are maintained, the times during which the repository is open and the name and telephone number of the contact person at the repository. 5. A description of the procedures under this section. (b) The department shall maintain a list of competent and disinterested umpires qualified to perform the duties under subs. (4) to (6). None of the umpires may be employees of the department. Upon receiving notice from a local governmental unit under par. (a), the secretary or his or her designee shall select an umpire from the list and inform the local governmental unit and responsible parties of the person selected. (c) Within 10 days after receiving notice of the umpire selected by the department under par. (b), the local governmental unit may notify the department that the umpire selected is unacceptable. Within 10 days after receiving notice of the umpire selected by the department under par. (b), a responsible party may notify the department that the umpire selected is unacceptable or that the responsible party does not intend to participate in the negotiation. Failure to notify the department that the umpire is unacceptable shall be considered acceptance. If all responsible parties identified by the local governmental unit indicate that they do not intend to participate in the negotiation, the department shall inform the local governmental unit and the local governmental unit shall cease further action under this section. (d) Upon receiving notice under par. (c) that the selected umpire is unacceptable, the secretary or his or her designee shall select 5 additional umpires from the list and inform the local governmental unit and responsible parties of the persons selected. (e) Within 10 days after receiving notice of the umpires selected by the department under par. (d), the local governmental unit or a responsible party may notify the department that one or more of the umpires selected are unacceptable. Failure to notify the department shall be considered acceptance. The secretary or his or her designee shall select an umpire from among those umpires not identified as unacceptable by the local governmental
May 22, 2026, are designated by NOTES. (Published 5-22-26)
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unit or a responsible party or, if all umpires are identified as unacceptable, the secretary or his or her designee shall designate a person to be umpire for the negotiation. (4) NEGOTIATION PROCESS. (a) The umpire, immediately upon being appointed, shall contact the department, the local governmental unit and the responsible parties that received the offer to settle and shall schedule the negotiating sessions. The umpire shall schedule the first negotiating session no later than 20 days after being appointed. The umpire may meet with all parties to the negotiation, individual parties or groups of parties. The umpire shall facilitate a discussion between the local governmental unit and the responsible parties to attempt to reach an agreement on the design and implementation of the remedial action plan and the contribution of funds by the local governmental unit and responsible parties. (b) The umpire shall permit the addition to the negotiation, at any time, of any responsible party or any other person who wishes to be a party to the negotiated agreement. (c) Negotiations may not continue for more than 60 days after the first negotiating session, unless an extension is approved by the department for cause, at the request of any party to the negotiation. The department shall approve an extension if necessary to settle insurance claims. (d) The local governmental unit and the responsible parties that participate in negotiations shall pay for the costs of the umpire, whether or not an agreement among the parties is reached under sub. (5) or the parties accept the recommendation of the umpire under sub. (6). The umpire shall determine an equitable manner of paying for the costs of the umpire, which is binding. (5) AGREEMENT IN NEGOTIATION. The local governmental unit and any of the responsible parties may enter into any agreement in negotiation regarding the design and implementation of the remedial action plan and the contribution of funds by the local governmental unit and responsible parties for the investigation and remedial action. The portion of the agreement containing the design and implementation of the remedial action plan shall be submitted to the department for approval. The department may approve that portion of the agreement as submitted or require modifications. (6) FAILURE TO REACH AGREEMENT IN NEGOTIATION. (a) If the local governmental unit and any responsible parties are unable to reach an agreement under sub. (5) by the end of the period of negotiation, the umpire shall make a recommendation regarding the design and implementation of the remedial action plan and the contribution of funds for investigation and remedial action by the local governmental unit and all responsible parties that were identified by the local governmental unit and that did not reach an agreement under sub. (5), whether or not the responsible parties participated in negotiations under sub. (4). The umpire shall submit the recommendation to the department for its approval within 20 days after the end of the period of negotiation under sub. (4) (c). The department may approve the recommendation as submitted or require modifications. The umpire shall distribute a copy of the approved recommendation to the local governmental unit and all responsible parties identified by the local governmental unit. (b) The local governmental unit and the responsible parties that did not reach an agreement under sub. (5) shall accept or reject the umpire’s recommendation within 60 days after receiving it. Failure to accept or reject the recommendation within 60 days shall be considered rejection of the recommendation. If the local governmental unit rejects the recommendation with respect to any responsible party, the recommendation does not apply to that responsible party. If a responsible party rejects the recommendation, it does not apply to that responsible party.
Updated 23-24 Wis. Stats.
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(7) RESPONSIBLE PARTIES SUBJECT TO AN AGREEMENT OR RECOMMENDATION. A responsible party that enters into an agreement under sub. (5) with a local governmental unit or that accepts the umpire’s recommendation under sub. (6), if the local governmental unit does not reject the recommendation, is required to comply with the agreement or recommendation. When the responsible party has complied with the agreement or recommendation, the responsible party is not liable to the state, including under s. 292.11 (7) (b) or 292.31 (8), or to the local governmental unit for any additional costs of the investigation or remedial action; the responsible party is not liable to any other responsible party for contribution to costs incurred by any other responsible party for the investigation or remedial action; and the responsible party is not subject to an order under s. 292.11 (7) (c) for the discharge that is the subject of the agreement or recommendation. (8) RESPONSIBLE PARTIES NOT SUBJECT TO OR NOT COMPLYING WITH AN AGREEMENT OR RECOMMENDATION. (a) In this subsection: 1. “Interest” means interest at the annual rate of 12 percent, commencing on the date of the umpire’s recommendation under sub. (6) or, if there is no umpire’s recommendation, on the date of the agreement under sub. (5). 2. “Litigation expenses” means the sum of the costs, disbursements and expenses, including engineering fees and, notwithstanding s. 814.04 (1), reasonable attorney fees necessary to prepare for or participate in proceedings before any court. (b) A local governmental unit is entitled to recover litigation expenses and interest on the judgment against a responsible party if any of the following occurs: 1. The local governmental unit accepts the recommendation of an umpire under sub. (6), the responsible party rejects it and the local governmental unit recovers a judgment under sub. (9) against that responsible party that equals or exceeds the amount of the umpire’s recommendation. 2. The local governmental unit and the responsible party enter into an agreement under sub. (5) or accept the umpire’s recommendation under sub. (6), the responsible party does not comply with the requirements of the agreement or recommendation and the local governmental unit recovers a judgment against that responsible party based on the agreement or recommendation. (c) A responsible party is entitled to recover litigation expenses from a local governmental unit if the responsible party accepts the recommendation of an umpire under sub. (6), the local governmental unit rejects the recommendation of the umpire under sub. (6) with respect to the responsible party, the local governmental unit institutes an action under sub. (9) against the responsible party and the local governmental unit recovers a judgment under sub. (9) against the responsible party that is equal to or less than the amount of the umpire’s recommendation. (9) LIABILITY FOR REMEDIAL ACTION COSTS. (a) This subsection applies only to a site or facility that satisfies the applicability provisions of sub. (2) and for which the remedial action specified in an agreement under sub. (5) or a recommendation under sub. (6) is completed. (b) Except as provided in pars. (bm), (br) and (e), sub. (7) and s. 292.21, a responsible party is liable for a portion of the costs, as determined under pars. (c) to (e), incurred by a local governmental unit for remedial action in an agreement under sub. (5) or a recommendation under sub. (6) and for any related investigation. A right of action shall accrue to a local governmental unit against the responsible party for costs listed in this paragraph. (bm) Paragraph (b) does not apply with respect to a discharge if the discharge was in compliance with a permit license, ap-
May 22, 2026, are designated by NOTES. (Published 5-22-26)
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Updated 23-24 Wis. Stats.
proval, special order, waiver or variance issued under ch. 283 or 285 or under corresponding federal statutes or regulations. (br) Paragraph (b) applies with respect to a transporter only if the transporter does any of the following: 1. Selects the site or facility where the hazardous substance is disposed of without direction from the generator. 2. Violates an applicable statute, rule, plan approval or special order in effect at the time the disposal occurred and the violation causes or contributes to the condition at the site or facility. 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. (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. (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. (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: 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. 2. The amount of hazardous substances involved. 3. The degree of toxicity of the hazardous substances involved. 4. The degree of involvement by the responsible parties in the generation, transportation, treatment, storage, disposal or discharge of the hazardous substances. 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. 6. The degree of care exercised by the parties with respect to the hazardous substance, taking into account the characteristics of the hazardous substance. (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: 1. An act of God. 2. An act of war. 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: 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.
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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. 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. (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. (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. (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. (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. History: 1995 a. 227 s. 613 to 616; 1997 a. 27; 1999 a. 150 s. 672; 2001 a. 16, 103. Cross-reference: See also ch. NR 749, Wis. adm. code.