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News Briefs: New Rule Will Provide Warning of Tainted Property

Summer 1995

Proposed revisions to the Wisconsin Administrative Code provide procedures that the Department of Natural Resources would use in recording an affidavit at the County Register of Deeds office for any property where there is confirmed contamination and the property owner and/or responsible party has not conducted necessary environmental cleanup work.

While sites that are not making progress towards cleanup typically enter the Department's stepped enforcement process, which uses increasingly stringent measures to speed cleanup action, DNR does not initiate enforcement action promptly at many such sites due to staffing constraints. Under the rule, the DNR may record an affidavit for property to notify the public about known contamination. By using this affidavit procedure, the DNR contends that it will be able to focus limited staff resources on sites having the highest cleanup priority, while giving notice to the public that environmental contamination exists on properties. Action on lower priority sites can then be held in abeyance until adequate DNR resources are available to address them.

While recording an affidavit would not prevent sale of a property, it would alert potential purchasers of a problem that must be addressed. If necessary steps were taken to investigate and remediate contamination identified on the property, a second affidavit would be filed to supersede the first. According to DNR, the affidavits are an interim measure designed to hold action on low priority sites in abeyance until resources allow the department to take follow-up action, such as issuing administrative orders, referring the case to the Attorney General for additional enforcement, or conducting a department-managed response action.

It is estimated that the new rule will affect approximately 2500 owners of contaminated properties across the state. The department estimates that approximately 2500 sites, out of an estimated 13,000 contaminated sites in the state, have little or no progress being made toward site remediation.

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If you have a media request or need an attorney with particular knowledge for comment, please contact Susan Steberl, Director of Marketing, at 414.287.9556 or ssteberl@gklaw.com.

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