Chapter ATCP 35

ATCP 35.04(7) (7) Interest on approved reimbursement amounts as calculated by the department under s. ATCP 35.25.

ATCP 35.04 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (5), renum. (6) to be (7) and cr. (6), Register, September, 1998, No. 513, eff. 10-1-98; am. (3), r. and recr. (4) to (6), Register, October, 2000, No. 538, eff. 11-1-00; CR 03-119: r. and recr. (5), r. (6) Register October 2004 No. 586, eff. 11-1-04; CR 22-080: am. (5) (b) Register February 2024 No. 818, eff. 3-1-24.

ATCP 35.06 ATCP 35.06 Application for reimbursement.

ATCP 35.06(1) (1) Application required. A responsible person who seeks reimbursement of corrective action costs shall complete and submit to the department all of the following:

ATCP 35.06(1)(a) (a) An “application cover sheet” containing all of the following:

ATCP 35.06(1)(a)1. 1. The responsible person’s name and address.

ATCP 35.06(1)(a)2. 2. The name and address of the person directing the corrective action on behalf of the responsible person, if other than the responsible person.

ATCP 35.06(1)(a)3. 3. A statement indicating whether the responsible person has applied or will apply to another government agency for reimbursement of corrective action costs incurred for the same discharge site.

ATCP 35.06(1)(a)4. 4. Other relevant information requested by the department.

ATCP 35.06(1)(a)5. 5. The last date for which an eligible corrective action cost paid by the responsible person is being submitted for reimbursement. If the last date is not specified on the application form, the last date will be the day the department receives the application.

ATCP 35.06(1)(b) (b) A “multiple responsible persons form” containing all of the following:

ATCP 35.06(1)(b)1. 1. A certification that the responsible person has made a reasonable effort to notify other responsible persons as required under s. ATCP 35.20 (2).

ATCP 35.06(1)(b)2. 2. Other relevant information requested by the department.

ATCP 35.06(1)(c) (c) A “total reimbursement costs form” containing all of the following:

ATCP 35.06(1)(c)1. 1. The total eligible corrective action costs for which the responsible person seeks reimbursement from the department.

ATCP 35.06(1)(c)2. 2. Other relevant information requested by the department.

ATCP 35.06(1)(d) (d) An “insurance information form” containing all of the following:

ATCP 35.06(1)(d)1. 1. A statement indicating whether any portion of the corrective action costs for which the responsible person seeks reimbursement may be covered by insurance, or a statement from the responsible person’s insurance company stating that the insurance company has denied the responsible person’s claim for reimbursement of the corrective action costs.

ATCP 35.06(1)(d)2. 2. Other relevant information requested by the department.

ATCP 35.06(1)(e) (e) A map showing the township, range, section and quarter-quarter section location of the discharge site. If the agricultural chemical was discharged while being transported from a site owned or controlled by a person who owned or controlled the agricultural chemical at the time of the discharge, the application shall include a second map showing the township, range, section and quarter-quarter section location of the site from which the agricultural chemical was being transported.

ATCP 35.06(1)(f) (f) An accurate legal description of the land parcel on which the discharge site is located. If the agricultural chemical was discharged while being transported from a site owned or controlled by a person who owned or controlled the agricultural chemical at the time of the discharge, the application shall also include an accurate legal description of the land parcel on which that site is located. A parcel description under this paragraph shall correspond to the parcel description that was on record, at the time the discharge occurred or was discovered, with the register of deeds in the county where the land parcel is located.

ATCP 35.06(1)(g) (g) A summary statement identifying each eligible corrective action cost for which the applicant seeks reimbursement from the department. The statement shall include each eligible corrective action cost, paid by the applicant prior to the date of the reimbursement application, for which the applicant seeks reimbursement. The summary statement shall allocate each cost to one of the following categories:

ATCP 35.06(1)(g)1. 1. Soil investigation.

ATCP 35.06(1)(g)2. 2. Soil remediation.

ATCP 35.06(1)(g)3. 3. Laboratory and other analysis.

ATCP 35.06(1)(g)4. 4. Groundwater investigation.

ATCP 35.06(1)(g)5. 5. Groundwater remediation.

ATCP 35.06(1)(g)6. 6. Miscellaneous.

ATCP 35.06 Note Note: Under s. ATCP 35.08 (5) (b), if any person applies for reimbursement of an ineligible cost, the department may deduct twice the amount of that cost from that person’s reimbursement application if the responsible person knew or should have known that the cost was not eligible. If a responsible person is not certain whether a corrective action cost is eligible for reimbursement under this chapter, the responsible person may contact the department for a preliminary opinion under s. ATCP 35.08 (1).

ATCP 35.06(1)(h) (h) Invoices or other information documenting each of the costs under par. (g). Documentation shall identify the nature of the materials or services provided, the amount charged for the materials or services, the identity of the provider, and the dates on which the materials or services were provided.

ATCP 35.06(1)(i) (i) Canceled checks or other information documenting that the applicant has paid all of the costs under par. (g).

ATCP 35.06(1)(j) (j) All of the following, for each cost item under par. (g):

ATCP 35.06(1)(j)1. 1. Every bid required under s. ATCP 35.16 (2) (a), including every accepted and rejected bid. Each bid shall indicate the name of the contractor and the amount of the bid.

ATCP 35.06(1)(j)2. 2. Every cost estimate required under s. ATCP 35.16 (2) (c) 3., including the name of the contractor and the amount of the cost estimate.

ATCP 35.06(1)(j)3. 3. Every authorization required under s. ATCP 35.16 (2) (c) 5., including the name of the contractor and the amount of the authorization.

ATCP 35.06(1)(k) (k) A spreadsheet that identifies and matches each invoiced cost in par. (h) with the documentation under pars. (i) and (j) supporting that invoiced cost.

ATCP 35.06(1)(L) (L) A substitute W-9 tax form.

ATCP 35.06(1)(m) (m) Other relevant information required by the department.

ATCP 35.06 Note Note: To obtain application materials, contact the Department of Agriculture, Trade and Consumer Protection, Agricultural Resource Management Division, P.O. Box 8911, Madison, WI 53708. The department will provide application materials, including illustrative examples and all of the forms required under pars. (a) to (d) and (L). Reimbursement paid to a responsible person under this chapter may be reportable, for tax purposes, as income received by that person.

ATCP 35.06(2) (2) Application frequency. A responsible person may not submit more than one application under sub. (1) within any 12- month period for the same discharge site.

ATCP 35.06(3) (3) False, deceptive or misleading representations.

ATCP 35.06(3)(a) (a) No person may make, or conspire with another person to make, any false, deceptive or misleading representation in connection with any reimbursement application under this section.

ATCP 35.06(3)(b) (b) Any person who makes, or conspires with another person to make any false, deceptive or misleading representation in connection with a reimbursement application under this section is ineligible for any reimbursement for that corrective action, and is also ineligible for reimbursement for any other corrective action taken or ordered at any discharge site within 5 years after the date of that application.

ATCP 35.06 Note Note: Persons filing fraudulent applications may also be subject to criminal prosecution.

ATCP 35.06(3)(c) (c) If any applicant has reason to believe that the applicant received any reimbursement for which the applicant is ineligible under this subsection, that person shall immediately notify the department and shall refund with the notification the full amount of any reimbursement for which the responsible person is ineligible.

ATCP 35.06(4) (4) Failure to seek reimbursement in prior application. A responsible person may not apply for reimbursement of an eligible corrective action cost which the responsible person paid during or before the period for which a prior reimbursement application has been submitted for that discharge site, unless the corrective action cost was not eligible for reimbursement under this chapter at the time of any prior reimbursement application for that discharge site.

ATCP 35.06 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; r. and recr. (1) and (4), Register, September, 1998, No. 513, eff. 10-1-98; cr. (1) (a) 5. and (5), am. (1) (f), (j) (intro.) and 1., r. and recr. (4), Register, October, 2000, No. 538, eff. 11-1-00; CR 03-119: r. (5) Register October 2004 No. 586, eff. 11-1-04; CR 10-122: am. (4) Register July 2011 No. 667, eff. 8-1-11; CR 22-080: am. (3) (c) Register February 2024 No. 818, eff. 3-1-24.

ATCP 35.08 ATCP 35.08 Department action on reimbursement application.

ATCP 35.08(1) (1) Preliminary opinion. The department may issue a preliminary opinion on whether an applicant is eligible for reimbursement of corrective action costs. The preliminary opinion is not binding on the department.

ATCP 35.08(2) (2) Notice acknowledging application. Within 10 days after the department receives an application under s. ATCP 35.06, the department shall issue a notice to the applicant acknowledging the department’s receipt of the application.

ATCP 35.08(3) (3) Request for additional information. Following receipt of an application under s. ATCP 35.06, the department may require an applicant to submit any additional information which may be relevant to the department’s review of the application.

ATCP 35.08(4) (4) Decision. Within 90 days after the department receives a complete application under s. ATCP 35.06, including any additional information required by the department under sub. (3), the department shall issue a written decision approving or disapproving the application. The department may approve an application in part, or approve an application subject to conditions specified by the department. In its decision, the department shall specify all of the following:

ATCP 35.08(4)(a) (a) The amount of eligible costs, if any, on which reimbursement may be paid.

ATCP 35.08(4)(b) (b) The applicable rate of reimbursement under s. ATCP 35.22, if any.

ATCP 35.08(4)(c) (c) The total reimbursement amount, if any, that is approved for payment under s. ATCP 35.28. The decision shall specify that payment is subject to the terms and conditions specified under s. ATCP 35.28.

ATCP 35.08(4)(d) (d) If the department disapproves all or part of an application, the reasons for that disapproval. The department shall also explain any amounts deducted from the reimbursement application under sub. (5).

ATCP 35.08(5) (5) Ineligible costs rejected.

ATCP 35.08(5)(a) (a) The department shall disapprove any portion of a reimbursement application that the department finds to be ineligible for reimbursement under this chapter, and shall deduct any costs that the department finds to be ineligible for reimbursement.

ATCP 35.08(5)(b) (b) If the department finds that any portion of an applicant’s reimbursement application is ineligible, and that the applicant knew or should have known that it was ineligible, the department shall deduct twice the amount of the ineligible cost from the applicant’s total application. Deductions under this paragraph may not exceed the total amount of the applicant’s application. Before making a deduction under this paragraph, the department may consult with the agricultural chemical cleanup council appointed under s. ATCP 35.34.

ATCP 35.08 Note Note: The department will invoke sub. (5) (b) in cases where a cost is clearly ineligible, either because it is clearly prohibited under s. ATCP 35.14 or because there is no plausible basis for applying for reimbursement under this chapter. In order to protect themselves against a double deduction under sub. (5) (b), applicants may discuss questionable items with the department before submitting an application.

ATCP 35.08(5)(c) (c) If, after consulting with the agricultural cleanup council, the department determines that the cost submitted for any goods or services is clearly unreasonable in relation to current market cost for those goods or services, the department may deny reimbursement of the excessive cost, and may reimburse a lesser cost which the department considers reasonable. In determining whether a cost is unreasonable, the department may consider the nature of the goods or services, the geographic location of the discharge site, the need for the goods or services, the availability of alternative goods or services, and other factors that may reasonably affect the cost of the goods or services.

ATCP 35.08(6) (6) Recontamination; reduced reimbursement rate.

ATCP 35.08(6)(a) (a) The department, after consulting with the agricultural chemical cleanup council, may reduce the reimbursement rate for a corrective action related to a discharge discovered after November 1, 2004 if the department has received or paid a reimbursement application related to a prior discharge at the same discharge site.

ATCP 35.08(6)(b) (b) The presumptive reimbursement rate under par. (a) is 50%, unless the department finds that a different rate is appropriate. In determining the appropriate reimbursement rate, the department may consider all of the following in consultation with the agricultural chemical cleanup council:

ATCP 35.08(6)(b)1. 1. The type of agricultural chemical discharged.

ATCP 35.08(6)(b)2. 2. The nature, size and location of discharge.

ATCP 35.08(6)(b)3. 3. The similarity between the discharge and prior discharges.

ATCP 35.08(6)(b)4. 4. The number of prior discharges, and the number of prior discharges for which the department has reimbursed corrective action costs.

ATCP 35.08(6)(b)5. 5. The responsible person’s apparent negligence, if any.

ATCP 35.08(6)(b)6. 6. Whether the discharge was caused by a law violation.

ATCP 35.08 Note Note: See s. ATCP 35.12 (8), which prohibits the department from reimbursing any costs for corrective actions made necessary by intentional or grossly negligent violations of law.

ATCP 35.08(7) (7) Failure to submit information. If an applicant for reimbursement fails to provide an adequate report of the corrective measures taken or corrective action costs incurred, or fails to provide any other relevant information required by the department, the department may disapprove all or part of the application for reimbursement.

ATCP 35.08 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (1) and (5) (b), Register, September, 1998, No. 513, eff. 10-1-98; correction in (4) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 1998, No. 513; am. (5) (b), cr. (6), Register, October, 2000, No. 538, eff. 11-1-00; correction in (5) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, October, 2000, No. 538; CR 03-119: renum. (6) to be (7), cr. (6) Register October 2004 No. 586, eff. 11-1-04; CR 10-122: am. (5) (title), (a), (b), (c), (6) (a) Register July 2011 No. 667, eff. 8-1-11.

ATCP 35.10 ATCP 35.10 Responsible person; eligibility for reimbursement. A responsible person is not eligible for reimbursement of corrective action costs unless all of the following requirements are met:

ATCP 35.10(1) (1) The responsible person files with the department, by October 14, 2000 or within 3 years after incurring the corrective action costs, whichever is later, a reimbursement application that complies with s. ATCP 35.06.

ATCP 35.10(2) (2) The responsible person complies with every corrective action order issued by the department under s. ATCP 35.02 or the department of natural resources under s. 292.11 (7) (c), Stats.

ATCP 35.10(3) (3) The responsible person, upon discovering the discharge, promptly reports the discharge to the department or, if the responsible person is required to report the discharge under s. 292.11 (2), Stats., to the department of natural resources.

ATCP 35.10(4) (4) If the responsible person is a commercial application business, the responsible person is in compliance, at the time of the discharge, with s. ATCP 29.20.

ATCP 35.10(5) (5) If an approved workplan is required under s. ATCP 35.18 (1), the corrective action complies with the approved workplan for that corrective action.

ATCP 35.10(6) (6) The corrective action complies with applicable requirements under chs. 281 to 285 and 289 to 299, Stats., this chapter, chs. ATCP 29 to 33, and chs. NR 700, 706, 708 and 712 to 727.

ATCP 35.10 Note Note: For corrective actions under this chapter, the department is authorized to review compliance with chs. NR 700, 706, 708, and 712 to 727, and to grant required approvals and variances under those chapters on behalf of the department of natural resources.

ATCP 35.10(7) (7) The corrective action is performed by or under the direct supervision of a person who meets applicable qualification requirements under ch. NR 712, and who has adequate training and experience to perform the corrective action.

ATCP 35.10(8) (8) The responsible person’s application for reimbursement includes an application or waiver, under s. ATCP 35.20 (3), from each of the responsible persons identified under s. ATCP 35.20 (2).

ATCP 35.10 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (1) to (4) and (6), Register, September, 1998, No. 513, eff. 10-1-98; CR 10-122: am. (8) Register July 2011 No. 667, eff. 8-1-11; CR 14-047: am. (6) Register May 2015 No. 713, eff. 6-1-15.

ATCP 35.12 ATCP 35.12 Corrective actions not eligible for reimbursement. The department may not reimburse a responsible person for a corrective action that is any of the following:

ATCP 35.12(1) (1) Taken in response to a discharge that is an intentional use of an agricultural chemical for an agricultural purpose, unless the corrective action is ordered by the department under s. ATCP 35.02 or by the department of natural resources under s. 292.11 (7) (c), Stats. An intentional use of an agricultural chemical includes an application of that chemical, but does not include handling, mixing, loading or disposal that is incidental to an application.

ATCP 35.12(2) (2) Taken by the department of natural resources under s. 292.31 (1), (3) or (7), Stats.

ATCP 35.12(3) (3) Taken by the department of natural resources under s. 292.11 (7) (a), Stats., because the applicant failed or refused to respond adequately to a discharge.

ATCP 35.12(4) (4) Taken by a pesticide manufacturer or labeler who is required to be licensed under s. 94.68 (1), Stats., or who is exempt from licensing under s. 94.68 (1) (b), Stats., in response to a discharge by that pesticide manufacturer or labeler.