§ 292.21 — Responsibility of lenders and representatives.

Wisconsin § 292.21

• Jurisdiction: Wisconsin
• Ch. 292: Remedial action
• Subch.: subch. II of ch. 292 SUBCHAPTER II

Text

292.21
292.21(1) (1) Responsibility of lenders; lending activities; acquisition of property.
292.21(1)(a) (a) Lending.
292.21(1)(a)1. 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.
292.21(1)(a)2. 2. Subdivision 1. does not apply in any of the following situations:
292.21(1)(a)3. 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.
292.21(1)(b) (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:
292.21(1)(b)1. 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.
292.21(1)(b)2. 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.
292.21(1)(b)3. 3. If the lender conducts an investigation or performs remedial action, the lender does so in accordance with department rules.
292.21(1)(b)4. 4. The lender does not physically cause a discharge.
292.21(1)(b)5. 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.
292.21(1)(c) (c) Acquisition of real property.
292.21(1)(c)1. 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:
292.21(1)(c)2. 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:
292.21(1)(c)3. 3. An environmental assessment filed under subd. 1. d. does not constitute notice required under s. 292.11 (2) .
292.21(1)(d) (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:
292.21(1)(d)1. 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.
292.21(1)(d)2. 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.
292.21(1)(d)3. 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.
292.21(1)(d)4. 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.
292.21(1)(e) (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.
292.21(2) (2) Responsibility of representatives.
292.21(2)(a) (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:
292.21(2)(a)1. 1. The representative acquires title to, or possession or control of, the real or personal property in the capacity of a representative.
292.21(2)(a)2. 2. The representative, through action or inaction, does not knowingly, willfully or recklessly cause a discharge of a hazardous substance.
292.21(2)(a)3. 3. The representative does not physically cause a discharge of a hazardous substance.
292.21(2)(a)4. 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.
292.21(2)(a)5. 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.
292.21(2)(b) (b) Paragraph (a) does not apply to any of the following:
292.21(2)(b)1. 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.
292.21(2)(b)2. 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.
292.21(2)(c) (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) .

Legislative History

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