Managing Properties with Residual Contamination

Questions and Answers

1. How are continuing obligations for residual contamination established?
2. What are some examples of continuing obligations?
3. Are future owners affected by continuing obligations on property that they purchase?
4. Can neighboring properties be affected by continuing obligations?
5. If continuing obligations can affect other properties, how do the owners and occupants of the other properties find out?
6. What if I need to do excavation, demolition or other redevelopment that requires changing a continuing obligation?
7. What is the legal authority for continuing obligations and the putting information on the Internet?
8. Are continuing obligations that were established prior to the June 3, 2006 legislation different?
9. Is there a way to remove a deed restriction that was imposed prior to the change in law on June 3, 2006?
10. Does DNR plan to change its administrative rules that require deed restrictions?
11. Can I get my property off of the GIS Registry?
12. Is every continuing obligation related to residual contamination?
13. How will the state know whether people who are required to maintain continuing obligations are actually doing it?

1. How are continuing obligations for residual contamination established?

Continuing obligations are established after a person responsible for completing a cleanup of contaminated soil or groundwater elects a cleanup method that leaves some contamination above state standards, and the state approves the cleanup. The state’s closure letter (the cleanup approval) is the legal mechanism that establishes the site-specific continuing obligations, and is one of the documents found in DNR's public database, the GIS Registry.

2. What are some examples of continuing obligations?

*See the state’s closure letter for the actual property-specific legal obligations.

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3. Are future owners affected by continuing obligations on property that they purchase?

Yes. Maintaining a continuing obligation such as a pavement “cap” over residual contamination is the legal responsibility of the property owner. This applies to all successive owners who purchase a property with continuing obligations, even if they did not cause the contamination – a good reason to check the GIS Registry before completing a purchase. A property owner may have a private contractual agreement under which someone else accepted responsibility for maintaining the continuing obligation, but such agreements are between the two parties and generally would not apply to new property owners.

4. Can neighboring properties be affected by continuing obligations?

Yes. Sometimes contamination crosses a property line. A cleanup may be completed and approved with residual contamination remaining on a nearby property and a continuing obligation that applies to that neighboring property. In this case the neighboring property owner is responsible for maintaining the continuing obligation, even if he or she did not cause the contamination. The neighboring property owner may enter into a private contractual agreement under which someone else maintains the continuing obligation.

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5. If continuing obligations can affect other properties, how do the owners and occupants of the other properties find out?

Since June of 2006, state law has required that a person completing a cleanup that leaves residual contamination on property he or she doesn’t own must notify property owners if there will be a continuing obligation on their land. This notification must be done in writing at least 30 days before requesting the state’s approval of the cleanup. Notification must say that the neighboring property will be subject to a continuing obligation, summarize the authority in s. 292.12, Wis. Stats. [exit DNR], describe the type and location of the residual contamination and describe the continuing obligation.

6. What if I need to do excavation, demolition or other redevelopment that requires changing a continuing obligation?

Those who want to alter the physical condition of their property in a way that would impact a property-specific continuing obligation need prior approval from the state agency that established the obligation (DNR, Commerce or the Dept. of Agriculture, Trade & Consumer Protection). DNR requires a fee for these reviews. For example, a continuing obligation may require maintaining a “cap” of pavement over contaminated soil, but the owner wants to construct a new building in that area. The owner should work with a private environmental consultant to review the state file and to recommend whether contaminated soil needs to be removed for a foundation, could remain in place and be capped by a new building, or whether both solutions apply in part. The state would review this proposal and amend or remove the continuing obligation. In some cases residual contamination such as petroleum may naturally degrade and sampling may be sufficient to show that contamination is now below state standards.

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7. What is the legal authority for continuing obligations and the putting information on the Internet?

Act 418 became effective on June 3, 2006. The law is found in s. 292.12, Wis. Stats. [exit DNR] and other laws. This legislation did not change the environmental situations where the state requires continuing obligations for residual contamination. Rather, it was intended to increase the cleanup and reuse of contaminated properties by creating clear and specific law regarding continuing obligations. Many people found deed restrictions, which were previously used, to be time-consuming and challenging. The legislation also directed DNR to provide a publicly available database of properties with residual contamination.

8. Are continuing obligations that were established prior to the June 3, 2006 legislation different?

Yes, they differ in the way they were established. Prior to this legislation cleanup approvals with continuing obligations required recording a deed restriction with the county Register of Deeds. These deed restrictions described the residual contamination and the associated continuing obligations. Those deed restrictions can now be found in DNR’s GIS Registry, as well as at county courthouses.

9. Is there a way to remove a deed restriction that was imposed prior to the change in law on June 3, 2006?

No. Once a deed restriction has been recorded with the Register of Deeds it can not be removed. However, a person who can show that a continuing obligation is no longer needed (e.g. all contaminated soil has been removed) may request that the state record a new affidavit with the deed stating that the issues in the original deed restriction have been satisfied. The person who wants such a deed affidavit needs to provide the appropriate technical information, and pay a review fee if the site is regulated by DNR.

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10. Does DNR plan to change its administrative rules that require deed restrictions?

Yes. The June 2006 statutory requirements are in effect and take precedence over older administrative rules that are inconsistent with the statute. Changes to the NR 700 rule series (Investigation and Remediation of Environmental Contamination) will be finalized starting with approval by DNR’s Natural Resources Board (NRB). If the NRB approves changing the rules, DNR will first announce a public comment period, then address the comments, then take final rule language back to the NRB and finally ask the Legislature to approve the updated rules.

11. Can I get my property off of the GIS Registry?

Yes, in some circumstances. A property owner whose soil and groundwater contaminant levels now meet standards may provide new data to show that the property may be removed from the GIS Registry. This applies whether the contamination was removed through active measures like excavation or as the result of natural degradation. If an owner subdivides a property and wants an uncontaminated parcel removed from the Registry, the owner may request a general liability clarification letter from DNR regarding the uncontaminated parcel. Information showing the legal division of the property must be sent to DNR and new GIS Registry fees will apply.

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12. Is every continuing obligation related to residual contamination?

No. In some cases a continuing obligation is a requirement to properly abandon a monitoring well that couldn’t be located when the cleanup was completed. In other situations, there may be contamination but it’s not “residual” contamination because the cleanup has not been completed. For example, there may be an obligation to maintain a cap over a landfill while environmental monitoring is still underway. One other situation occurs when a local government is exempt from cleanup requirements, but has certain continuing obligations to protect public health and the environment. For example, using a partially contaminated property as a park may require covering the contaminated area with clean soil and vegetation in order to maintain the liability exemption.

13. How will the state know whether people who are required to maintain continuing obligations are actually doing it?

DNR is using a grant from EPA to audit around 50 continuing obligations each year. Each audit includes a review of the state’s file on the cleanup, an interview with the property owner, a visit to the property and a written summary. If the property owner is not maintaining a continuing obligation DNR notifies the owner in writing, works with the owner to gain compliance, and has enforcement authority if needed. Audited sites have been largely in compliance with the requirements of their cleanup approvals so far. In a few cases DNR has required property owners to repair cracked asphalt over contaminated soil, or to create a written maintenance plan and inspection log.

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For more information about this page, contact:

Mark Gordon
608.266.7278