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Contaminated Lands Environmental Action Network (CLEAN)

Environmental Liability

Wisconsin Liability Overview - Who's Responsible?

Wisconsin Statutes and Administrative Code govern the investigation and clean-up actions that are required after a discharge of a hazardous substance occurs or is discovered. In general, a person responsible for a discharge is required to report, investigate and clean up the contamination. The person responsible is defined by law as one who "causes", "possesses" or "controls" the contamination (e.g. owns property with a contaminant discharge or owns a container that has ruptured). These general requirements are established in sections 292.11 and 292.31, Wis. Stats., and Chapters NR 700 to 754, Wisconsin Administrative Codes.

However, state statutes provide certain liability exemptions for local government units and for lenders. Others may qualify for liability exemptions by following appropriate procedures. And anyone may obtain a fee-based liability clarification letter from DNR.

Continuing Obligations

Wisconsin may allow some residual contamination to remain after a completed cleanup. The state ensures long-term protection of public health and the environment by imposing continuing obligations on the property owner, such as requiring pavement over contamination to be maintained. This liability applies to all subsequent property owners. To provide public information about these properties, DNR adds them to the GIS Registry on RR Sites Map, which is part of the Contaminated Lands Environmental Action Network.

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Understanding Liability in Wisconsin

How a DNR General Liability Clarification Letter Can Help

Individuals, local governments and businesses can request a general liability clarification letter from the DNR. These letters can help property owners, potential purchasers, neighbors, tenants or others complete real estate, business or financial transactions with written environmental liability clarifications from DNR. These letters provide property-specific responses to the liability questions posed by the person requesting a letter. DNR’s liability clarification letters are based on a $500 fee for this service.

How a DNR Lease Letter Can Help

One particular type of liability clarification letter is a “lease letter”, which can clarify that a lessee is not responsible for contamination that occurred prior to time of the lease.

For more information about general liability clarification letters, lease letters and for an application form to obtain a letter, please see these links:

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Wisconsin Liability Exemptions – Who Is Eligible?

Chapter 292, Wis. Stats, establishes certain exemptions from environmental liability. These are available to:

  • Local governments, who may qualify for a statutory exemption from environmental liability for contaminated properties that they acquire through “involuntarily” measures. This statutory exemption does not require any letter or certification from DNR. See our Local Government page for more information.
  • Lenders, who may qualify for state and federal liability protection for normal lending, acquiring property through foreclosure, inspecting property, enforcing a security interest in personal property and fixtures, and acting as a representative. Most of these exemptions do not require DNR approval. See our Lender page for more information.
  • Impacted Neighbors, who can demonstrate that their property has been contaminated by pollutants that crossed the property line from another property that they do not possess or control.
  • Others who enter DNR’s Voluntary Party Liability Exemption (VPLE) process, after DNR approves of their investigation and cleanup of a contaminated property.

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Federal Environmental Liability

Federal law regarding contaminated property falls into several areas, including Superfund, brownfields, hazardous wastes, underground storage tanks and oil spills. For more information please see the EPA Cleanup Regulations and Standards web site [exit DNR].

The primary differences between state and federal environmental liability are:

  • Wisconsin law considers a property owner to be liable for contamination, no matter when it occurred, and even when another person that caused the contamination is also liable, unless the owner falls under one of the four liability exemptions listed above.
  • Therefore, the federal “Bona Fide Prospective Purchaser” provision, which offers a defense against Superfund liability, does not have an equivalent provision in Wisconsin law.

For more information, please see the Bona Fide Prospective Purchaser and All Appropriate Inquiry web pages.

Wisconsin's One Cleanup Program

Wisconsin’s One Cleanup Program simplifies cleanups of contaminated sites under different regulatory programs by providing a single, consolidated approach rather than utilizing a range of separate programs with potentially conflicting approaches and cleanup standards. By clarifying the U.S. EPA’s intentions and expectations with respect to Wisconsin’s One Cleanup Program, this Memorandum of Agreement with EPA should expedite cleanups of all contaminated sites, including brownfields, as well as guide property owners, developers, consultants and others in understanding how meeting Wisconsin’s standards can satisfy both agencies.

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Need help? Call our Green Team!

The RR Program offers help in understanding the liability limitations and financial assistance available for the cleanup of contamination and the redevelopment of contaminated properties.

If you would like to schedule a "green team" meeting to discuss options for one or several properties, please contact Laurie Egre (608.267.7560). Laurie will coordinate a meeting with the appropriate DNR staff, and other agencies if needed.

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For more information on this topic, please contact:

Laurie Egre
608.267.7560

Last Revised: Monday June 29 2009