292.21 Responsibility of lenders and representatives.

(1) Responsibility of lenders; lending activities; acquisition of property.

(a) Lending.

1. Subject to subd. 2. and par. (b), for purposes of this chapter, a lender does not possess or control a hazardous substance or cause the discharge of a hazardous substance as a result of engaging in lending activities.

2. Subdivision 1. does not apply in any of the following situations:

a. A lender physically causes a discharge.

b. The lender through tortious conduct with respect to lending activities causes a discharge of a hazardous substance or exacerbates an existing discharge of a hazardous substance.

3. The department may, by rule, designate as lending activities other activities, in addition to those listed in s. 292.01 (9), that are related to undertaking appropriate actions to preserve and protect property or are related to the advancing of funds or credit or the collecting of funds.

(b) Preacquisition inspections of real property. For purposes of this chapter, a lender does not possess or control a hazardous substance or cause the discharge of a hazardous substance as the result of inspecting real property for compliance with environmental laws, conducting any portion of an environmental assessment of the property in the manner specified in par. (c) 2., conducting an investigation to determine the degree and extent of contamination or performing remedial action to clean the discharge of a hazardous substance. This paragraph applies to a lender only if all of the following conditions are satisfied:

1. The activities described in this paragraph occur before the date on which the lender acquires title to, or possession or control of, real property through enforcement of a security interest.

2. The lender notifies the department, in accordance with s. 292.11 (2), of any discharge of a hazardous substance identified as the result of activities described in this paragraph.

3. If the lender conducts an investigation or performs remedial action, the lender does so in accordance with department rules.

4. The lender does not physically cause a discharge.

5. The lender through tortious conduct with respect to the activities described in this paragraph does not cause a new discharge of a hazardous substance or exacerbate an existing discharge of a hazardous substance.

(c) Acquisition of real property.

1. A lender that acquires title to, or possession or control of, real property through enforcement of a security interest is not subject to s. 292.11 (3), (4) and (7) (b) and (c) and is not liable under this chapter or chs. 281, 285, 289, 291 or 293 to 299 for a discharge of a hazardous substance on that real property if all of the following conditions are satisfied:

a. The lender, through action or inaction, does not intentionally or negligently cause a new discharge of a hazardous substance or exacerbate an existing discharge of a hazardous substance.

c. The lender notifies the department, in accordance with s. 292.11 (2), of any known discharge of a hazardous substance.

d. The lender conducts an environmental assessment of the real property in accordance with subd. 2. at any time, but not more than 90 days after the date the lender acquires title to, or possession or control of, the real property. The lender shall file a complete copy of the environmental assessment with the department not more than 180 days after the date the lender acquires title to, or possession or control of, the real property. If an environmental assessment is conducted more than one year before the date on which the lender acquires title to, or possession or control of, the real property, the exemption under this subd. 1. d. applies only if the lender does all of the following: visually inspects the property in accordance with subd. 2. a. and b. after the date on which the lender acquires title to, or possession or control of, the real property to verify the environmental assessment; submits a complete copy of the environmental assessment and the results of the visual inspection to the department not later than 90 days after the lender acquires title to, or possession or control of, the real property; receives notice from the department that the department determines that the environmental assessment is adequate or that the department directs the lender to address any inadequacies in the environmental assessment; corrects, to the satisfaction of the department, any inadequacies of an environmental assessment; and reimburses the department for the cost to the department of reviewing materials submitted under this subd. 1. d.

e. For a hazardous substance released on or after the date on which the lender acquires title to, or possession or control of, the real property, the lender is not engaged in the operation of a business at the property, completion of work in progress or other actions associated with conducting the conclusion of the borrower's business.

f. If the discharge of a hazardous substance occurs on or after the date on which the lender acquires title to, or possession or control of, the real property, the lender implements an emergency response action in response to the discharge of the hazardous substance.

g. The lender agrees to allow the department, any authorized representatives of the department, any party that possessed or controlled the hazardous substance or caused the discharge of the hazardous substance and any consultant or contractor of such a party to enter the real property to take action to respond to the discharge.

h. The lender agrees to avoid any interference with action undertaken to respond to the discharge and to avoid actions that worsen the discharge.

i. The lender agrees to any other condition that the department determines is reasonable and necessary to ensure that the department or other person described in subd. 1. g. can adequately respond to the discharge.

2. The environmental assessment under subd. 1. d. shall be performed by a qualified environmental technician or consultant and shall include all of the following:

a. A visual inspection of the real property.

b. A visual inspection and description of the personal property located on the real property that may constitute a hazardous waste or hazardous substance or that has a significant risk of being discharged.

c. A review of the ownership and use history of the real property, including a search of title records showing prior ownership of the real property for a period of 80 years previous to the date of the visual inspection under subd. 2. b.

d. A review of historic and recent aerial photographs of the real property, if available.

e. A review of the environmental licenses, permits or orders issued with respect to the real property.

f. An evaluation of the results of any environmental sampling and analysis that has been conducted.

g. A review to determine if the real property is listed in any of the written compilations of sites or facilities considered to pose a threat to human health or the environment, including the national priorities list under 42 USC 9605 (a) (8) (B); the federal environmental protection agency's information system for the comprehensive environmental response, compensation and liability act, 42 USC 9601 to 9675, (CERCLIS); and the department's database of sites or facilities and other properties that are environmentally contaminated required by s. 292.31 (1) (a).

h. The collection and analysis of representative samples of soil or other materials in the ground that are suspected of being contaminated based on observations made during a visual inspection of the real property or based on aerial photographs, or other information available to the lender, including stained or discolored soil or other materials in the ground and including soil or materials in the ground in areas with dead or distressed vegetation. The collection and analysis shall identify contaminants in the soil or other materials in the ground and shall quantify concentrations.

i. The collection and analysis of representative samples of unknown wastes or potentially hazardous substances found on the real property and the determination of concentrations of hazardous waste and hazardous substances found in tanks, drums or other containers or in piles or lagoons on the real property.

3. An environmental assessment filed under subd. 1. d. does not constitute notice required under s. 292.11 (2).

(d) Personal property and fixtures. A lender that enforces a security interest in personal property or fixtures at a particular location, filed under ch. 409, and that does not acquire title to, or possession or control of, the real property at that location, except for purposes of protecting and removing personal property or fixtures, is not subject to s. 292.11 (3), (4) and (7) (b) and (c) and is not liable under this chapter for a discharge of a hazardous substance on that real property if all of the following conditions are satisfied:

1. Not more than 30 days after entry onto the real property where the personal property or fixtures are located, the lender notifies the department and the borrower of any decision not to accept specific personal property or fixtures.

2. Not more than 30 days after entry onto the real property where the personal property or fixtures are located, the lender provides the department with a written general description of the personal property or fixtures, the location of the personal property or fixtures on the real property and the location of the real property by street address.

3. The lender, within its ability to do so, permits reasonable access to the personal property or fixtures to the department or the borrower or others acting on the borrower's behalf.

4. The lender does not engage in the operation of a business at the location of the personal property or fixtures, completion of work in progress or other actions associated with conducting the conclusion of the borrower's business except for actions that are undertaken to protect the property and are approved by the department in writing.

(e) Rules; approvals. The department may promulgate rules further specifying the activities to be carried out by a lender for the environmental assessment required under par. (c) 1. d. The department may not, by rule, require a lender to undertake sampling and analysis beyond that required under par. (c) 2. h. and i. in order to determine the degree and extent of contamination or require a lender to perform any remedial action to clean any discharge. The department may approve, by rule or in a site-specific approval, the use of reliable methods of identification other than the collection and laboratory analysis of samples.

(2) Responsibility of representatives.

(a) A representative who acquires title to, or possession or control of, real or personal property is not personally liable under this chapter for a discharge of a hazardous substance if all of the following circumstances apply:

1. The representative acquires title to, or possession or control of, the real or personal property in the capacity of a representative.

2. The representative, through action or inaction, does not knowingly, willfully or recklessly cause a discharge of a hazardous substance.

3. The representative does not physically cause a discharge of a hazardous substance.

4. The representative does not have a beneficial interest in a trust, estate or similar entity that owns, possesses or controls the real or personal property.

5. The representative does not knowingly, willfully or recklessly fail to notify the department in accordance with s. 292.11 (2) of the discharge of a hazardous substance.

(b) Paragraph (a) does not apply to any of the following:

1. A representative that knew or should have known that the trust, estate or similar entity for which the representative is acting as a representative was established, or that assets were transferred to the trust, estate or similar entity, in order to avoid responsibility for a discharge of a hazardous substance.

2. A representative that fails to act in good faith to cause the trust, estate or similar entity for which the representative is acting as a representative to take the actions described in s. 292.11 (3) or to reimburse the department under s. 292.11 (7) (b). It is not a lack of good faith for a representative to resign as representative, to seek a court order directing the representative to act or refrain from acting or to challenge the department by any legal means.

(c) This subsection does not limit the responsibility of any trust, estate or similar entity to take the actions required under s. 292.11 (2), (3), (4) or (7) (c) or any other provision of this chapter or to reimburse the department under s. 292.11 (7) (b).

History: 1995 a. 227 s. 708, 709, 993; 1997 a. 27; 1999 a. 9; 2005 a. 418.