Managing Properties with Residual Contamination
Questions and Answers
1. How are continuing obligations for residual contamination established?
Continuing obligations are established when a person responsible for completing a cleanup of contaminated soil or groundwater elects a cleanup method that leaves some contamination above state standards and the state approves the cleanup. In some cases the continuing obligation is a requirement to properly abandon a monitoring well that couldn’t be located when the cleanup was completed. The state’s closure letter (the cleanup approval) is the mechanism that establishes the site-specific continuing obligations, and is one of the documents describing the residual contamination found in DNR's GIS Registry. The person completing the cleanup must provide the state with all of the other information that will appear in the GIS Registry.
2. Are future owners affected by continuing obligations on property that they purchase?
Yes. For example, maintaining a land use control such as clean soil or a pavement “cap” over residual contamination is the legal responsibility of the property owner. This responsibility applies to all successive owners who purchase a property with continuing obligations, even if they did not cause the contamination – a good reason to check the GIS Registry before completing a purchase. However, a property owner may enter into a private contractual agreement under which this responsibility is accepted by someone else, such as the person who caused the contamination. Such agreements are between the two parties and generally would not apply to new property owners.
3. Can neighboring properties be affected by land use controls?
Yes. Sometimes contamination crosses a property line. A cleanup may be completed and approved with residual contamination remaining on a nearby property and a land use control that applies to that neighboring property. In this case the neighboring property owner is responsible for maintaining the land use control, even if he or she did not cause the contamination. However, this neighboring property owner may enter into a private contractual agreement for maintenance of the land use control with the person that caused the contamination.
4. If land use controls can affect other properties, how do the owners and occupants of the other properties find out about them?
Since June of 2006, state law requires that a person who wants a cleanup approval that would include residual contamination that has crossed the property line must notify the owners of other properties that have been affected by the contamination. This must be done before requesting the state’s cleanup approval, and is intended to provide the other owners time to negotiate a private contractual agreement regarding maintenance of the land use control. At a minimum this notification must state that the neighboring property will be subject to a land use control, summarize the land use control authority in s. 292.12, Wis. Stats. [exit DNR], describe the type and location of the residual contamination, describe the land use control and discuss who will maintain it.
5. What if I need to do excavation, demolition or other redevelopment that requires changing a land use control?
Those who want to alter the physical conditions of their property in a way that would impact a land use control will need prior approval from the other state agency that approved the cleanup (i.e. DNR, Commerce or the Dept. of Agriculture, Trade & Consumer Protection). DNR requires a fee to review these requests. For example, a land use control may require maintaining a pavement “cap” over contaminated soil in a parking lot, but the owner wants to construct a new building in that area. The owner should work with a private environmental consultant to determine whether the contaminated soil will need to be removed for the foundation, could remain in place and be capped by the new building, or whether both solutions may apply in part. The state would then review this proposal and amend or remove the land use control. In some cases residual contamination such as petroleum may naturally degrade in the environment and sampling may be sufficient to show that the contamination is no longer present above state standards.
6. What is the legal authority for using land use controls, and for putting information about residual contamination on the Internet?
Act 418 became effective on June 3, 2006. The law is found in s. 292.12, Wis. Stats. [exit DNR] (and other laws). This legislation did not change the environmental situations where the state requires land use controls for residual contamination. Rather, it was intended to increase the cleanup and reuse of contaminated properties by creating clear and specific law regarding land use controls. Many people found deed restrictions, which were previously required, to be time-consuming and challenging. The legislation also directed DNR to provide a publicly available database of properties with residual contamination.
7. How are land use controls completed prior to the June 3, 2006 legislation different?
Prior to this legislation cleanup approvals with land use controls required recording a deed restriction with the county Register of Deeds. These deed restrictions described the residual contamination and the associated land use controls.
8. Is there a way to remove a deed restriction that was imposed prior to the change in law on June 3, 2006?
No. Once a deed restriction has been recorded with the Register of Deeds it can not be removed. However, a person who can show that a land use control is no longer needed (e.g. all contaminated soil has been removed) may request that the state record a new affidavit with the deed stating that the issues in the original deed restriction have been satisfied. The person who wants such a deed affidavit needs to provide the appropriate technical information, and pay a review fee if the site is regulated by DNR.
9. What about getting my property off of the GIS Registry? Can I do that?
Yes, in some circumstances. A property owner whose soil and groundwater contaminant levels now meet standards may provide new data to show that the property may be removed from the GIS Registry. This applies whether the contamination was removed through active measures like excavation or as the result of natural degradation. If an owner subdivides a property and wants an uncontaminated parcel removed from the Registry, the owner may request a general liability clarification letter from DNR regarding the uncontaminated parcel. Information showing the legal division of the property must be included and new GIS Registry fees will apply.
10. How will the state know whether the people who are supposed to maintain environmental land use controls are actually doing it?
DNR is using a grant from EPA to audit a specified number of land use controls each year. Each audit includes a review of the state’s file on the cleanup, an interview with the property owner, a visit to the property and a written summary. If the property owner is not maintaining a land use control DNR notifies the owner in writing, works with the owner to gain compliance, and has enforcement authority if needed. Audited sites have been largely in compliance with the requirements of their cleanup approvals. In a few cases DNR has required property owners to repair cracked asphalt over contaminated soil, or to create a written maintenance plan and inspection log.
11. Doesn’t DNR need to change its administrative rules that require deed restrictions?
Yes. The June 2006 statutory requirements are in effect and take precedence over older administrative rules that are inconsistent with the statute. Changes in the related administrative rules will occur in the NR 700 rule series (Investigation and Remediation of Environmental Contamination) after the changes are approved by DNR’s Natural Resources Board (NRB). If the NRB approves, DNR will announce a public comment period, address the comments, take final rule language back to the NRB and then ask the Legislature to approve the rules.
For more information about this page, contact:
Mark Gordon (608.266.7278)
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