Brownfields_Content Page_Voluntary cleanup and the Voluntary Party Liability Exemption VPLE

Voluntary cleanup and the Voluntary Party Liability Exemption (VPLE)

Certain individuals, businesses or units of government that conduct an environmental investigation and cleanup of a contaminated property, while following specific state requirements with the oversight of DNR staff, can receive an exemption from future environmental liability for historical contamination.

The voluntary party liability exemption (VPLE) program is implemented by the DNR and described in § 292.15, Wis. Stat.[PDF exit DNR]

VPLE Basics

VPLE Basics

The cleanup and redevelopment of contaminated properties has become a critical land use issue for public and private entities across the country. Brownfields – abandoned or underused properties where redevelopment is hindered by real or perceived contamination – are often the key to a successful community redevelopment project.

In 1994, the Wisconsin State Legislature created the voluntary party liability exemption by enacting § 292.15, Wis. Stat. The VPLE program is a process by which a person – as defined in § 292.01(13), Wis. Stat. – can voluntarily conduct an environmental investigation and cleanup of a property and then receive limits on their liability for historical contamination on that property.

Many developers, lenders and prospective purchasers of brownfields choose this route because the voluntary party liability exemption provides certain liability assurances helpful to investors and future property owners.

Properties cleaned up through the VPLE program must complete a comprehensive environmental investigation of the entire property and then implement response actions to the extent practicable. Upon completion of the cleanup, the RR program issues one of five types of certificates of completion enumerated in § 292.15, Wis. Stat. For more information on response actions in Wisconsin see the Cleanup Overview web page and the Cleanup Rules and Laws web page.

Eligibility

Eligible applicants

The VPLE is an elective environmental cleanup program. Interested persons who meet the definition of "voluntary party" are eligible to apply. A voluntary party is any person who submits an application and pays all the necessary fees. The voluntary party can be the company that owned and operated a facility or it can be a new purchaser.

Eligible sites

Most properties that have had a discharge of a hazardous substance are eligible for VPLE. Some properties are excluded from the VPLE process, as described in § 292.15(7), Wis. Stat. Specifically, properties with the following are NOT eligible:

  • a property that is listed or proposed to be listed on the Superfund National Priorities List;
  • a solid waste facility or site that is an approved facility as defined in § 289.01(3), Wis. Stat. (these are typically larger landfills);
  • a hazardous waste treatment, storage or disposal facility that first began operation after the voluntary party acquired the property;
  • a licensed hazardous waste treatment, storage or disposal facility operated on the property before the date on which the voluntary party acquired the property and that is operated after the date on which the voluntary party acquired the property; and
  • any hazardous waste disposal facility that has been issued a license under § 144.441(2), Wis. Stat., or § 289.41(1m), Wis. Stat., or rules promulgated under those sections, for a period of long-term care following closure of the facility.

In addition, some sites may not be eligible to participate or to complete the VPLE process due to technical issues associated with the environmental cleanup at the site. Properties with waste sites (e.g., a landfill) must be able to obtain a ch. NR 726, Wis. Admin. Code, site closure without the reliance on any active remedial system to ensure compliance with environmental and public health standards, such as active treatment or collection systems relating to groundwater, leachate or gas, to receive the VPLE protections.

Application & Fees

Application process

To participate in the Voluntary Party Liability Exemption process, you must submit a completed application form (Form 4400-178) [PDF]. Enclose a $250 application fee, payable to the Wisconsin Department of Natural Resources, and all required attachments with your application. See RR-690, Guidance for Submitting Documents, for information on submitting documents to the DNR.

Within 30 days of receiving your letter of eligibility, you must send the DNR an advanced deposit of $2,000 for properties less than one acre and $4,000 for properties one acre or larger. If the cost of the hourly oversight fees is less than the advance deposit, you will receive a refund from the DNR. These fees are used to cover DNR oversight costs. If oversight fees are greater than the deposit, the voluntary party will be billed quarterly.

Please submit a separate application for each property. A property is the area of real property included in a VPLE application, made up of a legally identifiable parcel or legally identifiable contiguous parcels created in compliance with applicable laws.

Fees

For state Fiscal Year 2022 (July 1, 2021 to June 30, 2022), VPLE oversight and technical review is billed at a rate of $110 an hour.

Certificates of Completion

Types of Certificates of Completion

Voluntary parties choose to enter the VPLE program and pursue one of five available “certificate of completions” (COCs) they would like to receive based on property-specific conditions. The DNR has statutory discretion to issue one of five different types COCs under § 292.15(2), Wis. Stat., listed below.

  1. § 292.15(2)(a), Wis. Stat., General – This COC provides liability protection where the voluntary party has completed a comprehensive investigation of the entire property, including sampling for all likely hazardous substance discharges, has cleaned up the property to the extent practicable, and where natural attenuation was not selected as a remedy to groundwater contamination.
  2. § 292.15(2)(ae), Wis. Stat., Natural Attenuation – This COC provides liability protection for cleanups where groundwater contamination will remain at the property, the concentration of the hazardous substance(s) is above an enforcement standard and natural attenuation was selected as the remedy. The DNR requires the voluntary party to obtain insurance to cover the costs of future investigation and cleanup should natural attenuation fail as the selected remedy.
  3. § 292.15(2)(af), Wis. Stat., Contaminated Sediment – This COC applies to sites with contaminated sediment and provides liability protection when the voluntary party cleans up the contaminated sediment to the extent practicable.
  4. § 292.15(15)(ag), Wis. Stat., Property Affected by Off-site Discharge – This COC provides liability protection for cleanups where the contamination on the property originated from another property.
  5. § 292.15(2)(am), Wis. Stat., Partial Cleanup – This COC provides liability protection for partial cleanups. Liability may only extend to the hazardous substances that were sampled for during the investigation. This type of COC issued may state that “not all of the property has been satisfactorily restored or that all of the harmful effects from a discharge of a hazardous substance have been minimized.”
    This COC may also provide liability protection for cleanups that only address specific areas of a property.

The DNR may only grant a COC after the voluntary party has demonstrated completion of all applicable requirements for chs. 700-799, Wis. Admin. Code, and § 292.15(2), Wis. Stat., for the voluntary party's desired COC.

Insurance

VPLE insurance for natural attenuation

Parties seeking the VPLE for sites using natural attenuation must take part in the DNR's insurance program.

Successes

Current VPLE sites

Completed VPLE sites

Reports

Additional Resources

Additional information

VPLE laws

For site-specific questions

For more information, contact