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.

The Wisconsin State Legislature created the VPLE program under Wis. Stat. § 292.15. The VPLE program is a process by which a person can voluntarily conduct an environmental investigation and cleanup of a property under Wis. Stat. ch. 292 and Wisconsin Administrative Code chs. NR 700-799.

The voluntary party is required to complete a comprehensive investigation of the entire property and cleaned up the property to the extent practicable. In exchange, the voluntary party receives limits on their liability for historical contamination on a property, and the state must use tax dollars to clean up contaminants discovered in the future.

Voluntary parties choose to enter the VPLE program and choose what type of COC they would like to pursue based on property specific conditions. The DNR has the statutory discretion to issue five different types COCs under Wis. Stat. § 292.15(2), listed below.

  1. Stat. § 292.15(2)(a) 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, cleaned up the property to the extent practicable, and where natural attenuation was not selected as a remedy to groundwater contamination.
  2. Stat. § 292.15(2)(ae) 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. Stat. § 292.15(2)(af) 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. Stat. § 292.15(15)(ag) Property Affected by Off-site Discharge – This COC provides liability protection for cleanups where the contamination on the property originated from another property.
  5. Stat. § 292.15(2)(am) 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 it completed the applicable requirements for the voluntary party’s desired COC.

When issuing COCs, the DNR will continue to exercise its statutory discretion under Wis. Stat. § 292.15(2) and evaluate which type of COC is appropriate for properties enrolled in the VPLE program on a case-by-case basis.

Additional information regarding the VPLE program is available on the VPLE program web page.

 

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