Section 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.

(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.

(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 requirements, 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.

2005 a. 418 ; 2011 a. 32 ; 2013 a. 20 ; 2015 a. 204 .