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Off-Site Contamination - Contamination that Crosses Property Lines

What is Off-Site Contamination?

When contamination from one property crosses a property line and affects another property, it is know as an "off-site discharge” of contamination under s. 292.13, Wis. Stats [exit DNR]. Generally, DNR will not ask owners of properties to take environmental response actions if the contamination did not originate on their property. The fundamental obligation for these off-site property owners is to allow access to their property so that others may investigate and clean up the contamination, and to maintain environmental land use controls if they were required as part of the approved cleanup.

Liability Exemptions for Off-Site Contamination

When contamination has crossed a property line, the owner of property with contamination that originated on another neighboring property is not responsible for cleanup if he or she can demonstrate that his or her property is not the source of any of the contamination. Generally, this happens when the person who is responsible completes their investigation of the contamination and shows where it originated and how far it spread. Sometimes, however, this is difficult and time-consuming, and affected neighbors may need to refinance or sell their property before the neighbor’s investigation is completed. Owners of properties affected by contamination from other properties have the option to demonstrate that the contamination did not originate on their property and can obtain a written liability exemption from DNR. The fee for this is $500, in accordance with ch. NR 749, Wis. Adm. Code. The statutory liability exemption applies whether or not DNR writes such a letter. This liability exemption is not transferable to future owners.

In order to obtain this liability exemption, a property owner must demonstrate that:

  • contamination on his or her property originated somewhere else;
  • the owner did not possess or control the property where the contamination originated; and
  • the owner did not possess or control the hazardous substance that contaminated the property where the contamination originated, and did not cause the discharge of this hazardous substance.

A property owner also must:

  • allow the person that is responsible for the contamination, as well as DNR, reasonable access to his or her property for investigation and clean up of the contamination; and
  • avoid actions that could worsen the contamination, not interfere with actions taken in response to the contamination and comply with conditions that DNR finds necessary.

If a property owner is eligible for a liability exemption for contamination from another property, the owner will be exempt from the following statutory requirements for that source of contamination:

  • taking environmental response actions, including investigation and cleanup of contamination and responding to state orders for environmental preventive measures;
  • reimbursing DNR for costs associated with any DNR response to that contamination; and
  • emergency or special orders for protection of public health, safety or welfare.

If an off-site property owner is interested in potential health impacts of the contaminants, he or she may consult the Department of Health and Family Services, Environmental Health Services [exit DNR]. Environmental Health Services has toxic chemical fact sheets [exit DNR] available for the public.

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Off-Site Contamination Fact Sheet

DNR’s Remediation and Redevelopment (RR) Program has written a fact sheet to help landowners, purchasers, municipalities, lenders and others understand the off-site liability exemption contained in s. 292.13, Wis. Stats. Our fact sheet Off-Site Contamination – How Does It Affect My Property? (RR-589) [PDF, 177KB] includes more information about:

  • when to request an exemption;
  • eligibility requirements;
  • clarification of the exemption;
  • differences between off-site exemptions and general liability clarifications;
  • the information needed in order to obtain an off-site exemption;
  • the legal responsibilities of those who own the source of the contamination and those who own other properties affected by the contamination; and
  • purchase, easement or lease of properties where contamination originated, and other properties that were affected by the contamination.

Application for an Off-Site Liability Exemption

The Off-site Liability Exemption application form includes instructions and describes the information needed by DNR in order to grant an off-site liability exemption.

Example Off-Site Liability Exemption Letter for Impacted Property Owners

This letter provides an example of a DNR off-site liability exemption letter, which describes the contamination and confirms that it originated on another property.

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Other Situations and Options – Liability Clarification Letters

If a property owner is unable to meet the conditions to obtain an off-site liability exemption, DNR can instead provide a liability clarification letter for the same fee of $500. For more information about this option, please see our fact sheet General Liability Clarification Letters (RR-619) [PDF, 141KB].

Liability clarification letters may be helpful when:

  • a property owner is considering purchase of property affected by off-site contamination; the clarification letter would state the conditions under which the liability exemption would be available to an owner;
  • widespread contamination has affected multiple individual properties; DNR can write a single liability clarification letter that describes the conditions under which an off-site liability exemption would be available to each owner affected by the same source of contamination;
  • there is credible evidence that groundwater contamination has moved onto a property from somewhere else, but no groundwater samples have been collected and analyzed from the property; or
  • there is known groundwater contamination in the area and a likelihood that a property may become affected by contamination from somewhere else.

Off-Site Exemptions and Land Use Controls

Often residual contamination remains after an approved cleanup, and sometimes the approval includes environmental land use controls intended to reduce the impact from the residual contamination. For more general information about land use controls, please see our Managing Properties with Residual Contamination page. When contamination has moved off-site, the land use controls may also apply to neighboring properties. So while the owner of a neighboring property may not be responsible for cleaning up the contamination, he or she may become responsible for a land use control. The following general requirements, applicable to both the property where the contamination originated and to other affected properties, apply when an environmental land use control is included in the cleanup approval. The requirements regarding land use controls apply even if the owner of another impacted property is protected by the off-site liability exemption.

  1. The property owner must obtain prior approval from DNR to construct or reconstruct a water supply well.
  2. If the residual contamination is disturbed, the property owner is responsible for proper sampling, handling and treatment or disposal of the contamination.
  3. If specified in the cleanup approval, the owner must periodically inspect the physical land use control, maintain it and record the maintenance activities. For example, this often means taking good care of pavement that covers contaminated soil.
  4. The owner must obtain prior written approval from the state before changing the physical conditions specified in the land use control.

On-line information about specific properties with residual contamination and the specific land use controls that apply to them may be found in the RR Program's GIS Registry. Within the GIS Registry, the PDF documents include the closure letter that specifies the continuing obligations imposed by the land use control.

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For more information on this specific page, contact:

Darsi Foss
608.267.6713

Last Revised: Monday June 29 2009