Liability

Now Available: Guidance: DNR’s Superior Lien Authority and What It Means for Property Owners (RR-507), Guidance: Environmental Liability Exemptions for Lenders and Representatives (RR-508) and Guidance: Post-Closure Modifications (RR-982)

Following a public comment period, the following publications are now posted and available online:

Guidance: DNR’s Superior Lien Authority and What It Means for Property Owners (RR-507)
This guidance is intended for property owners and mortgagees. It defines and explains a superior lien, which is a type of environmental lien that the Wisconsin Department of Natural Resources (DNR) places on properties when the DNR cleans up contamination on a property and is not reimbursed. A superior lien allows the DNR to recover the public funds spent on the cleanup.

Guidance: Environmental Liability Exemptions for Lenders and Representatives (RR-508)
The purpose of this guidance is to provide information to lenders and representatives about environmental liability exemptions available for sites with hazardous substance discharges to the environment.

Guidance: Post-Closure Modifications (RR-982)
The purpose of this guidance is to aid in the preparation and review of post-closure modification (PCM) submittals to the DNR. Information about the types of PCMs, the process, fees and types of responses available from the DNR is provided. This guidance is for use by property owners, responsible parties, environmental consultants and DNR staff. It is based on authority provided under Wisconsin Statutes (Wis. Stat.) § 292.12(6) and Wisconsin Administrative Code (Wis. Admin. Code) ch. NR 727.

Additional documents and guidance from the Remediation and Redevelopment (RR) Program may be found using the search tools available on the RR Document Search and Resource Portal.

Questions regarding RR-507 and RR-508 may be submitted to Molly Schmidt at MollyE.Schmidt@wisconsin.gov. Questions regarding RR-982 may be submitted to Jodie Thistle at Jodie.Thistle@wisconsin.gov.

Now Available: Publication RR-619, Guidance: General Liability Clarification Letters

Following a public comment period and consideration of the comments received, the publication RR-619, Guidance: General Liability Clarification Letters, is now posted and available online.

The document can be found here. Additional documents and guidance from the Remediation and Redevelopment Program may be found using the search tools available on the publications and forms webpage.

RR-619 describes when general liability clarification letters, as defined in Wis. Stat. § 292.55, may be helpful and how parties can request a general liability clarification letter from the DNR.

Questions regarding these documents may be submitted to Michael Prager at Michael.Prager@wisconsin.gov.

Public Input Opportunity Ends Soon for Publication RR-619, Guidance: General Liability Clarification Letters

The public comment period ends next week on October 28, 2021 for the publication RR-619, Guidance: General Liability Clarification Letters.

The document can be found at the RR Program’s Public Notices & Guidance web page under the “Program Guidance” tab. Comments may be submitted through Oct. 28, 2021 to Michael Prager at Michael.Prager@wisconsin.gov or to DNRRRGuidance@wisconsin.gov.

The guidance document describes when general liability clarification letters, as defined in Wis. Stat. § 292.55, may be helpful and how parties can request a general liability clarification letter from the DNR.

Public Input Opportunity – Publication RR-619, Guidance: General Liability Clarification Letters

The Remediation and Redevelopment (RR) Program is now seeking input on the publication RR-619, Guidance: General Liability Clarification Letters.

The guidance document describes when general liability clarification letters, as defined in Wis. Stat. § 292.55, may be helpful and how parties can request a general liability clarification letter from the DNR.

The publication can be found at the RR Program’s Public Notices & Guidance web page under the “Program Guidance” tab.

Comments may be submitted through October 28, 2021 to Michael Prager at Michael.Prager@wisconsin.gov or to DNRRRGuidance@wisconsin.gov.

Environmental Liability Exemptions in the VPLE Program

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

Many developers, lenders and prospective purchasers of brownfields choose to enroll in the Voluntary Party Liability Exemption (VPLE) program versus a traditional cleanup path, since the VPLE provides certain liability assurances helpful to investors as well as future property owners.

Continue reading “Environmental Liability Exemptions in the VPLE Program”

Updated VPLE Insurance Fees

The Voluntary Party Liability Exemption (VPLE) Insurance fee schedule (RR-661) is now updated and available on the DNR website.

The VPLE program allows a party to conduct an assessment and remedial action of an entire property with DNR oversight to obtain a liability exemption. Insurance is required for VPLE sites where groundwater contamination levels are above enforcement standards and the DNR determines that natural attenuation will restore groundwater quality.

Continue reading “Updated VPLE Insurance Fees”

Environmental Liability Exemptions for Local Governments – Related to Redevelopment

Counties, cities, villages and towns, along with RDAs, CDAs, other local governmental units, can fairly easily obtain environmental liability exemptions, civil immunity, and cost recovery authority in Wisconsin when taking title to unproductive/abandoned industrial and commercial properties.

These protections are explicitly authorized by multiple sections in Wis. Statutes Ch. 292, and are designed to enable local governments to take action to stimulate redevelopment activities at contaminated or potentially contaminated properties when the private market is not providing enough capital and economic activity to achieve the desired level of community improvement on its own.

Remediation and Redevelopment Program staff are available to help local government officials understand and use these robust statutory tools, as well as identify financial assistance opportunities for environmental investigation and cleanup work. The DNR’s Green Team meetings are a good way to get started on your first, or next, redevelopment project.

The DNR publication Local Government Environmental Liability Exemptions in Wisconsin (RR-055) provides an overview of several local government environmental liability exemptions, and lists types of documentation that the DNR typically requests to confirm that the exemption is in effect.

Engaging Real Estate Lenders in Brownfields Redevelopment Projects

Financing can make or break a redevelopment project; however, lenders are often wary of the environmental liabilities associated with brownfields redevelopments. In order to encourage lenders to finance these projects, Wisconsin state law exempts lenders from environmental liabilities for a range of lending activities, if they meet certain statutory conditions.

In its 2015 report, Investing in Wisconsin, the Brownfields Study Group (BSG) recognized that Wisconsin’s liability exemption for lenders had recently turned 20 years old, and noted that the lending industry had evolved significantly over those two decades. The BSG recommended that a subset of the group meet with stakeholders to examine whether the exemption remains useful and relevant in light of current lending practices and regulations.

Between May 2016 and April 2017, a group of Wisconsin DNR personnel, lenders, attorneys, and trade organizations met five times to discuss, in a public forum, the various components of the state’s lender liability exemption and analyze whether the current exemption meets the needs of lenders and the public. In April 2017, this group of professionals formed a list of recommendations for the BSG, which will consider the proposed items at an upcoming public meeting.

During this effort, the Wisconsin DNR renewed its outreach efforts and strengthened partnerships with the lending community. The Wisconsin DNR reviewed its lender factsheets and updated and republished several guidance documents. The Wisconsin Bankers Association helped the Wisconsin DNR reach the WBA members by authoring informational articles in its membership publications and by distributing Wisconsin DNR’s guidance at its compliance forums, and including information in teaching materials for its compliance courses. Wisconsin DNR staff continue to reach out to bankers and lenders at statewide conferences and via Green Team meetings.

Updated Off-Site Liability Exemption Publication Now Available

The RR Program recently updated a fact sheet on the state’s off-site environmental liability exemptions, When Contamination Crosses a Property Line: The Off-Site Environmental Liability Exemption – Wis. Stat. §§ 292.12 and 292.13, Rights and Responsibilities of Off-site, Affected Property Owners, RR-589 Please recycle old versions of this DNR document and reference to the updated document moving forward.

The update also includes content from and  replaces, a publication titled, What Homeowners, Lenders and Realtors should know about Off-site Contamination, RR-927. More information about the off-site exemption, and RR Program contacts, are available on the DNR’s  web page, Off-site contamination – contamination that crosses property lines.

Updates to Wisconsin Spill Law Help Promote Land Recycling

Last November, the Governor signed 2017 Act 70, which modified Wis. Stat. ch. 292 (Wisconsin’s “Spill Law”) to help encourage brownfield cleanup and redevelopment. The Act was based on recommendations made by the Brownfields Study Group in its 2015 report, Investing in Wisconsin.

Modifications to the Spill Law include:

  • Clarification that the off-site liability exemption applies if there is vapor intrusion impacting an off-site property (Wis. Stat. § 292.13(1m))
  • Changing the definition of “property” as it is used for Voluntary Party Liability Exemption (VPLE). The new definition is “…an area of real property that is included in an application to obtain an exemption under this section, made up of a legally identifiable parcel or legally identifiable contiguous parcels created in compliance with applicable laws.” (Wis. Stat. § 292.15(1)(c))
  • Specifying the process for changing the footprint for the VPLE “property” after an application has been submitted if the “property” is subdivided, combined with other properties or otherwise changed. (Wis. Stat. § 292.15(2)(at))

The DNR’s Remediation and Redevelopment Program’s role with brownfields redevelopment is not directly affected by many of the other provisions in the Act, such as changes to tax incremental districts (TID) requirements for environmental remediation; expansion of the property-assessed clean energy (PACE) financing option to include brownfield revitalization projects; expanded options to address tax delinquent brownfields and other provisions.

Program staff will make necessary changes to VPLE documents and webpages and work with the program’s Land Recycling Team to identify other actions needed to implement the changes.

More information on the bill, including descriptions of the provisions in the Act, can be found in Senate Bill 173.