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 799, Wis. Adm. Code.
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.
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 the DNR. These letters provide property-specific responses to the liability questions posed by the person requesting a letter. The DNR’s liability clarification letters are based on a $700 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:
- General Liability Clarification Letters (RR-619)
- Lease Letters (RR-620)
- Technical Assistance, Environmental Liability Clarification or Post-Closure Modification Request (Form 4400-237)
- Services and fees
Wisconsin liability exemptions & eligibility
Chapter 292, Wis. Stats, establishes certain exemptions from environmental liability. These are available to the following groups.
- 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 the DNR.
- 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.
- 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 the DNR approves of their investigation and cleanup of a contaminated property.
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 webpage, Addressing Liability Concerns to Support Cleanup and Reuse of Contaminated Lands.
Primary differences between state and federal environmental liability
- 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.