2006 Brownfields Legislation
Brownfields Legislation Signed Into Law
Senator Carol Roessler shakes hand with Gov. Doyle after he signed the brownfields legislation into law on Friday, May 19, 2006.
Photo Courtesty of Sen. Roessler's Office
On Friday, May 19, 2006, Governor Doyle signed Senate Bill 546, containing incentives to promote the cleanup and reuse of contaminated properties. Act 418 became effective on June 3, 2006, except for the ER TID provision.
Initially proposed by the Wisconsin Brownfields Study Group, and introduced by Senator Carol Roessler, this brownfields legislation had bipartisan support from a wide array of organizations, including Wisconsin Manufacturers and Commerce, 1000 Friends of Wisconsin, Wisconsin Counties Association, Wisconsin League of Municipalities, Alliance of Cities, Wisconsin Chapter of the National Brownfields Association, City of Milwaukee, Dane County, Wisconsin Economic Development Association, Wisconsin Realtors Association, Wisconsin Petroleum Marketers, American Council of Engineering Companies in Wisconsin, Alliant Energy and the Departments of Commerce, Agriculture and Natural Resources.
In summary, the four provisions in this legislation are:
- Amend the Environmental Remediation Tax Incremental District (ER TID) law to make ER TIDs more consistent with other Wisconsin TIDs. It extends the reimbursement period from 16 years to 23 years and makes cancellation of property taxes an eligible ER TID cost. This provision becomes effective October 1, 2006.
DNR Contact: Michael Prager (608.261.4927) - Expand the environmental liability protections that are already in place for local governments and private parties who enter DNR’s Voluntary Party Liability Exemption (VPLE) process, s. 292.15, Wis. Stats. Previously, the voluntary party liability exemption was only available for hazardous substance spill sites and a small subset of properties that contain certain types of landfills. The legislation broadens the types of properties which may be eligible for a VPLE to include waste disposal sites that are considered “unlicensed landfills.”
DNR Contact: Michael Prager (608.261.4927) - Create a new environmental liability exemption for local governments that acquire title to properties where an “unlicensed landfill” is or may be present on the property. The new exemption in s. 292.24, Wis. Stats, is modeled on the spill law exemption created in 1994 for local governments that acquire properties through tax delinquency, for blight or slum purposes, condemnation, or other specified purposes.
DNR Contact: Dan Kolberg (608.267.7500) - Change the way DNR, DATCP and Commerce implement closures involving land use conditions to address residual contamination. In essence, the state agencies no longer rely on deed restrictions to ensure that land use conditions placed on a property at the time of closure are maintained over time. Instead, the agencies have specific statutory authority to place these land use conditions on a property, and the owner of the property (or another person who has a legally enforceable responsibility to comply with the requirements, e.g. through a contract) will be responsible for complying with the conditions set out by the state agency.
The bill did not change the environmental situations where the state has in the past and will continue to require land use conditions. Those three general situations are:- Required maintenance of an engineering control;
- When a building or other structure inhibited full investigation of the contamination, an investigation of the extent of residual contamination and completion of any needed remedial actions is required if the building or other structure is removed after the conclusion of the remedial action; and
- The state imposes limitations or other conditions related to the site (e.g., closure using industrial soil standards) in accordance with state rules, to ensure that conditions at the property remain protective and lead to appropriate redevelopment of the property.
This fourth provision of the law has two primary components:- It clarifies that conditions such as a requirement to maintain a protective barrier or an engineering control on top of contaminated soil are the responsibility of whomever is the current property owner (or another person with a legally enforceable responsibility to comply, e.g. a contract); and
- The public is advised of these conditions through an internet registry of properties with this type of closure approval, instead of looking for individual deed restrictions for each property. The GIS Registry of Closed Remediation Sites will include detailed letters that spell out the conditions that must be maintained to ensure that the residual contamination is properly managed. The DNR will continue to conduct audits of a certain number of these properties with land use conditions.
DNR Contact: Mark Gordon (608.266.7278)
Questions and Answers on Land Use Conditions in the New Legislation
1. Has the process for requesting closure changed?
Yes, the most noticeable difference is no requirement to draft and record a deed restriction for any affected property.
Also, the responsible party will be required to provide evidence to the state that they have notified the owner of any affected property not owned by them (e.g., a neighboring property or the owner of a leased property) in the event that the neighboring or leased property will be subject to a land use condition under s. 292 12, Wis. Stats. A copy of the letter sent to the property owner(s) should be included in the closure request package. The letter, at a minimum, should include a description of the type of residual contamination, the location of the contamination, a description of any engineering control or other land use condition required under s. 292.12, Wis. Stats., and a summary of s. 292.12.
2. Have the closure letters issued by state agencies changed?
Yes, case closure approval letters are now more detailed, spelling out the conditions that must be maintained to ensure that the residual contamination is properly managed. These letters are available in a PDF format on DNR’s GIS Registry of Closed Remediation Sites.
3. Have the GIS Registry packet contents or the GIS checklist changed?
The GIS Registry packet that is required for closure requests where there is residual contamination will contain the same information as before. However, the order of the documents may change slightly, as a maintenance plan and a map may be attached to the state's closure letter, depending on the situation. The GIS checklist will be changed to reflect the slightly altered format for sites closing under s. 292.12, Wis. Stats.
4. Is there a mechanism to “remove” an existing deed restriction and to be subject to this new law?
No. Once a deed restriction has been recorded it cannot be removed. If a person were to change the property so that a land use condition was no longer needed (e.g. removed all contaminated soil), that person may ask DNR to record an affidavit showing that the original deed restrictions are no longer required to maintain protection over time [chapter NR 726.05(2)(c), Wis. Adm. Code].
5. What if I need to change a land use condition imposed under s.292.12, Wis. Stats.?
Those who wish to alter the physical conditions that limit their land use due to residual contamination require approval from DNR or the other state agency that approved the cleanup (Commerce or Agriculture). There will be a fee for technical review if the new request is directed to DNR. This type of review and approval will require properly dealing with any contaminated soil. Some neighboring property owners may have legally enforceable agreements that require the person that caused the contamination to cover this type of situation.
6. Did the DNR create a new database to house the site-specific information on properties closed out under s. 292.12, Wis. Stats.?
No, the state will use DNR’s existing Contaminated Lands Environmental Action Network (CLEAN) to notify the public and prospective purchasers of the specific conditions of closure approval related to environmental contamination at each property where the cleanup has been approved with residual contamination. The detailed case closure letters, as well as any specific maintenance plans for land use conditions, will be available in a PDF format on the GIS Registry.
However, users are cautioned that not all residual soil contamination sites are listed on the GIS Registry. Closure approvals granted prior to August 2002 with residual soil contamination (e.g., those requiring deed restrictions) are not likely to be on the GIS Registry. To determine if there is a historic deed restriction on a property, check these resources:
- DNR’s Contaminated Lands Environmental Action Network (CLEAN),
- the County Register of Deeds Office, or
- the state agency files for the property.
7. Please clarify the contents of the GIS Registry.
These three circumstances result in property being listed in the GIS Registry:
- A deed restriction was recorded before June 3, 2006, because:
- The state required a control such as pavement or a “cap” of clean soil to remain over contaminated areas; or
- The state requires more investigation, and cleanup if needed, if a building or other impediment that inhibited full investigation or cleanup is removed after the cleanup was approved; or
- The state imposed other limitations to ensure appropriate use of the property (e.g. industrial use if industrial soil standards were used).
- A land use condition was imposed after June 3 2006, due to s. 292.12, Wis. Stats. Land use conditions are now used for the same three reasons listed above that formerly required deed restrictions.
- Informational purpose only – residual contamination exists and must be properly managed if it is disturbed. There is no deed restriction or land use condition.
The GIS Registry includes the state approval letters that detail the conditions that must be preserved to ensure that residual contamination is properly managed, as well as maps and contaminant information. Most cleanups with residual soil contamination that were approved prior to August of 2002 are recorded only as deed restrictions at Register of Deeds offices, and are not found in the GIS Registry.
8. Are deed restrictions still required for properties closed out with industrial levels of residual soil contamination remaining?
No, if a property owner elects to seek an industrial closure classification and meets the requirements of chs. NR 720 and 726, Wis. Admin. Code, a deed restriction is no longer required. However, a land use condition under s. 292.12(2)(c), Wis. Stats. will be incorporated into the closure letter with conditions placed on any change in land use associated with the property (e.g., from industrial closure levels to residential use).
9. Are deed “notices” (not restrictions) affected by this legislation?
No, it did not change the manner in which state agencies use deed notices as a part of the closure or enforcement process.
10. How soon will DNR change its administrative rules on deed restrictions?
Those changes will occur with the planned NR 700 rule series changes, which may go to the DNR’s Natural Resources Board (NRB) and then to public hearings later this year. The rules would be effective after a final rule package is approved by the NRB and legislature. The new statutory requirements, however, are already in effect and take precedence over administrative rules that are inconsistent with the statute or situations that are not addressed in the administrative rules.
11. What other implementation activities are the state agencies planning?
We plan outreach to lenders, title companies, consultants, attorneys, local governments and real estate firms. Updates of model letters, guidance, administrative rules, data tracking systems, and new outreach materials are in progress.
12. Are there other contaminated properties I should know about?
Yes, quite a few. The Contaminated Lands Environmental Action Network (CLEAN) is the state’s mechanism to notify the public about environmental cleanups that have been completed and approved with some residual contamination left behind, and any associated land use conditions. There are many other contaminated properties where the cleanup has not been completed. They do not have this type of land use condition, but it’s possible that they will at the time that the cleanup is approved.
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