Overview of brownfields, contaminated properties and spills

The investigation, cleanup and redevelopment of contaminated land in Wisconsin is overseen by the DNR's Remediation and Redevelopment (RR) Program, which addresses cleanup and redevelopment issues at hazardous waste sites, superfund sites, underground storage tanks, spills and brownfield properties.

A "brownfield" is defined as an abandoned, idle or underused commercial or industrial property where expansion or redevelopment is hindered by real or perceived contamination. The RR program staff can assist affected parties such as business owners, private land owners, lenders, tenants and local units of government to understand their obligations, provide technical expertise and help identify available financial resources. Fees apply for some of these services.

For a brief overview about how to deal with contamination, see Environmental Contamination: The Basics (RR-674). If you have questions on Wisconsin statutes and administrative codes pertaining to investigation and cleanup when a hazardous substance has been discharged, visit Wisconsin cleanup rules and laws. Then, use the list of RR staff contacts to determine the best person to address your questions.

Environmental Contamination

If you own or operate a business on contaminated land, whether you caused the contamination or not, review the questions below for information on understanding liability, how to address contamination and what resources are available to help.

When am I liable for environmental contamination?

It is a good idea to seek environmental information before purchasing a property. You may be responsible for cleaning up a site you own even if someone else caused the contamination. A "responsible party" is defined as an individual or public or private entity who causes a discharge of a hazardous substance or who possesses or controls a hazardous substance that was discharged. The responsible party is responsible for reporting, investigating and cleaning up the contamination. It is possible to have more than one responsible party at a single site. The DNR and the U.S. Environmental Protection Agency (EPA) offer some liability exemptions for local governments, lenders, neighbors, lessees and other property owners, some of which are described below. See environmental liability to determine if you qualify.

Off-site liability exemption: This exemption applies to persons who demonstrate that their property has been contaminated by substances from another property. Under this exemption, you would not be held liable for cleaning up the property; however, you would need to allow access to your property for remediation efforts and to maintain any continuing obligations that may be required such as an indoor vapor mitigation system. When Contamination Crosses a Property Line – Rights and Responsibilities of Property Owners Off-Site Limited Liability Exemption (RR-589) provides an overview and off-site contamination – contamination that crosses property lines provides more in-depth information on this exemption.

Voluntary Party Liability Exemption (VPLE): Sometimes, a party may voluntarily investigate and remediate a contaminated property to qualify for the voluntary party liability exemption. Upon completion, the DNR will issue a Certificate of Completion (COC) to the voluntary party. A COC exempts the voluntary party from future liability under most provisions of the Spill Law as well as certain hazardous and solid waste laws. The COC may be transferred to future owners of the property.

Bona Fide Prospective Purchaser (BFPP): The 2002 federal brownfield amendments to the Superfund law (CERCLA) provides a Superfund liability defense for property owners who qualify as bona fide prospective purchasers of a property that is known to be contaminated. To qualify, you must conduct a Phase I environmental assessment that meets federal standards for all appropriate inquiry and federal liability and comply with EPA's continuing obligations for BFPPs. Details can be found at the superfund liability defense for bona fide prospective purchasers. No such protection exists under Wisconsin state law.

General liability clarification letters: DNR staff can provide, for a fee, General liability clarification letters to owners or potential purchasers/lessees of a contaminated property. See General Liability Clarification Letters (RR-619) or environmental liability for details.

Lease letters: If your business is thinking about leasing a contaminated property, DNR staff can review the terms of the lease and provide liability clarifications specific to your situation. Usually, if the lessee does not operate in a way that could cause a new discharge or exacerbate a past discharge, the lessee will not be considered liable for the contamination whether or not you obtain the letter. If you wish to have formal assurance, you may, for a fee, request a Lease Letter (RR-620).

What if I discover contamination on my property?

Sometimes spills are not immediately apparent and contamination is discovered after the fact. Upon discovery of contamination, you must immediately notify the DNR by submitting the Notification for Hazardous Substance Discharge (Non-Emergency Only) (4400-225) form accessible through the RR Program Submittal Portal application. The Submittal Portal web page includes a link to launch the application as well as directions for using the form. However in an emergency situation, you must report contamination using the 24-hour spill emergency hotline at 1-800-943-0033.

Environmental contamination does not always stay within the property where it was discharged. If you have contamination that you believe came from an off-site source, there is a liability exemption that can protect you from having to clean up the contamination. You will be required to allow access to your property so the contamination can be investigated and cleaned up and you may have to maintain any equipment or other continuing obligations required for mitigation. You may also want to request a written liability clarification letter from DNR. Details can be found in When Contamination Crosses a Property Line – Rights and Responsibilities of Property Owners (RR-589).

If you own property with known contamination, you may be concerned about its effect on the value of your property. There are a wide variety of factors that affect property value and contamination is one of them. However, mitigation efforts will help manage its impact. Keep in mind that you may be required by law to disclose environment conditions to a potential purchaser when selling a property.

What is involved in cleaning up contamination?

There are six basic steps to cleaning up contaminated soil or groundwater:

1. Report the contamination or discharge to DNR. How to report a spill. DNR will decide if further action is needed.
2. Hire an environmental consultant if investigation and/or remediation may be needed. Selecting an environmental consultant.
3. Conduct a site investigation to determine the type and extent of contamination present.
4. Evaluate your options and determine how best to clean up the property.
5. Conduct the cleanup and request state approval for closure. The DNR will provide a case closure letter when the cleanup is considered complete.
6. Address any residual contamination by complying with any continuing obligations that may remain. Residual contamination. Closed cases may be reopened under certain circumstances.

More information can be found at an introduction to cleaning up contamination.

Is financial help available to assist with cleanup?

There is a variety of programs available to assist with brownfield cleanup and redevelopment. Many focus on local governments or other public entities but some are available to business owners.

Resources:

• The Brownfields Funding Matrix (RR-932) is a quick summary of available funding from the DNR, the Wisconsin Economic Development Corporation (WEDC) and the U.S. Environmental Protection Agency (USEPA).
• Information can also be found on The Financial Resources for Cleaning up & Redeveloping Contaminated Properties. Some of these programs are also listed below.
• For information on how to write a grant application, see Secrets to Writing Great Grants.

Wisconsin Assessment Monies (WAM): Grants are given for no-cost contractor services for Phase I and Phase II Environmental Site Assessments and/or Site Investigations at closed or closing industrial or manufacturing plants. These services are available to local governments, private prospective purchasers and property owners, including business owners.

Petroleum Environmental Cleanup Fund Award (PECFA): This program is open to local governments and private parties responsible for discharges of petroleum products and provides reimbursement of expenses for investigation and cleanup.

Wisconsin's Brownfields Grant Program: This program from the Wisconsin Economic Development Corporation (WEDC) provides funding to assist local governments, businesses and individuals with assessing and remediating environmental contamination when the responsible party is not known or is unable to pay for the cleanup.

The Agricultural Chemical Cleanup Program (ACCP): This is a program from the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) which helps with the investigation and cleanup of pesticide and fertilizer spills. The program aims to prevent groundwater contamination by providing reimbursement for costs incurred by responsible parties.

Small Business Administration (SBA) Loans: This program guarantees loans made by other financial institutions. SBA loans may be used to finance business expansion at brownfields among other things.

Cancellation of delinquent property taxes: A property owner or potential purchaser may, after conducting Phase I and II environmental site assessments showing contamination, enter into an agreement with DNR to investigate and clean up the property. The agreement can be submitted to the taxing authority (county or the City of Milwaukee) which can determine whether delinquent property taxes, interest and penalties from the property can be canceled.

Wisconsin Housing and Economic Development Authority (WHEDA): WHEDA offers loans and tax credits for redevelopment of blighted buildings into housing units. This may include environmental activities such as asbestos and lead paint abatement as well as the removal of underground storage tanks.

Brownfield insurance: A variety of insurance products are available to manage the financial risk associated with brownfield cleanup. Insurance is available to protect against environmental liability, third party claims and cost overruns.

How do I choose the right consultant for my cleanup?

Site investigations and cleanups can be complex, time consuming and expensive. It is important to select a qualified environmental consultant to thoroughly investigate and clean up your property. Visit selecting an environmental consultant for tips on making this important decision. A knowledgeable and experienced consultant can not only assist with technical details but can also help you explore redevelopment options and may be able to direct you to financial assistance.

What do dry cleaners need to know about contamination?

Dry cleaning solvents pose a threat to air, soil and groundwater when discharged. The DNR has resources to help dry cleaners deal with contamination at dry cleaning contamination.

Wisconsin's Small Business Environmental Assistance Program (SBEAP) has a variety of resources specifically for dry cleaners. The program publishes a Dry Cleaner Compliance Calendar (AM-493) which provides an overview of hazardous waste and air emission regulations for perchloroethlyene dry cleaners, provides space for recordkeeping and gives pollution prevention and sustainability information. Use this calendar to help ensure you are in compliance with regulations to prevent spills and future contamination. Contact the SBEAP at 855-889-3021 or DNRsmallbusiness@wisconsin.gov if you would like a hard copy. In addition, the SBEAP dry cleaners page has resources including compliance assistance documents, best management practices and information on different types of solvents. EPA's Chemicals under the Toxic Substances Control Act (TSCA) also provides information about alternative cleaning technologies that you may want to consider.