Section 292.11. Hazardous substance spills.

 

(2)   Notice of discharge.

(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.

(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 (2) (dv) and (my) 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 (2) (dv) or (my) 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. 92-500 , shall be credited to the appropriation under s. 20.370 (2) (my) .

(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 discharge 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) 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 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 .

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 . 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). Sub. (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). Sub. (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), 95-2353 . This section 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 .