Section 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:

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, 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 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.

(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, approval, 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.

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.

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.