292.33 Local government cost recovery cause of action.

(1) Definition. In this section “local governmental unit" has the meaning given in s. 292.11 (9) (e) 1.

(2) Cause of action. Except as provided in sub. (6), a local governmental unit may recover costs as provided in sub. (4) from a responsible person described in sub. (3) if the costs are incurred in connection with a property acquired as provided in s. 292.11 (9) (e) 1m. on which a hazardous substance has been discharged.

(3) Responsible persons.

(a) Except as provided in par. (b), a local governmental unit may recover costs in an action under this section from any of the following:

1. A person who, at the time that the local governmental unit acquired the property, possessed or controlled the hazardous substance that was discharged on the property.

2. A person who caused the discharge of the hazardous substance on the property.

(b) A local governmental unit may not recover costs in an action under sub. (2) from a person listed in par. (a) if any of the following applies:

1. The person is exempt from liability under s. 292.11 (9) (e), 292.13, 292.15, 292.16, 292.19 or 292.21 with respect to the discharge that is the subject of the action.

2. The person has entered into a consent order under this chapter or ch. 289 or 291 or an agreement under s. 292.11 (7) (d) or 292.31 (8) (h) with respect to the discharge that is the subject of the action and the person is in compliance with the consent order or agreement.

3. The person is exempt from liability under s. 292.35 (9) (e) with respect to the discharge that is the subject of the action.

4. The discharge that was caused by the person and that is the subject of the action was in compliance with a permit, license, approval, special order, waiver or variance issued under ch. 283 or 285 or under corresponding federal statutes or regulations.

(4) Recoverable costs.

(a) Except as provided in par. (b), in an action under this section a local governmental unit may recover the reasonable and necessary costs that it incurs for all of the following:

1. Investigating environmental contamination on the property and planning remedial activities described in subd. 2.

2. Conducting remedial activities to restore the property for its intended future use.

3. Administering the activities under subds. 1. and 2. and bringing the action under this section, including costs, disbursements and engineering fees but excluding attorney fees.

(b) The costs determined under par. (a) shall be reduced by the fair market value of the property after completion of the activities under par. (a) 2.

(c) Recoverable costs under this subsection may not be reduced by the amount of any state or federal moneys received by the local governmental unit for any of the activities under par. (a).

(d)

1. In an action under this section, the liability of a responsible person described in sub. (3) (a) 2. is limited to the amount that bears the same proportion to the total costs under par. (a), adjusted as provided in par. (b), as the amount of the environmental pollution on the property from the discharge caused by the responsible person bears to all of the environmental pollution on the property from discharges of hazardous substances.

2. In an action under this section, the liability of a responsible person described in sub. (3) (a) 1. is limited to the amount of the total costs under par. (a), adjusted as provided in par. (b), that the local governmental unit is unable to recover from responsible parties described in sub. (3) (a) 2. less the amount that the local governmental unit is unable to recover because of the exemptions in sub. (3) (b) 3. and 4.

(5) Repaying state assistance. If a local governmental unit that recovers costs under this section received money from this state, other than under s. 292.11 (7) or 292.31 (1), (3) or (7), for any of the activities under sub. (4) (a), the local governmental unit shall reimburse to the state an amount that bears the same proportion to the total amount recovered under this section as the amount received from the state, other than under s. 292.11 (7) or 292.31 (1), (3) or (7), bears to the total costs under sub. (4) (a) adjusted as provided in sub. (4) (b).

(6) Exception. A local governmental unit may not recover costs under this section for remedial activities conducted on a property or portion of a property with respect to a discharge after the department of natural resources, the department of safety and professional services, or the department of agriculture, trade and consumer protection has indicated that no further remedial activities are necessary on the property or portion of the property with respect to the discharge.

(7) Limitation of action. An action under this section shall be commenced within 6 years after the date that the local governmental unit completes the activities under sub. (4) (a) 2. or be barred.

History: 1999 a. 9; 2011 a. 32.