ATCP 35.16(2m)(e)
(e) The basis for attributing project costs to corrective measures under this chapter, if the project is also designed to investigate or repair environmental contamination involving substances that are not agricultural chemicals. The attribution shall take into account the reasons for which the overall project was initiated, and the end goals of the project.
ATCP 35.16(3)
(3)
Services priced on an hourly or per unit basis. ATCP 35.16(3)(a)
(a) Bids and cost estimates for the following services shall be priced on an hourly or per unit basis:
ATCP 35.16(3)(b)
(b) Bids and cost estimates for professional or personal services, including engineering, hydrogeologic, field technician and general contracting services, shall be priced on an hourly basis.
ATCP 35.16(4)(a)
(a) The department may require a responsible person to explain that person's choice of contractors.
ATCP 35.16(4)(b)
(b) A responsible person may select any contract service provider, but may not apply for reimbursement of any corrective action costs that exceed the low bid for any of the following contract services:
ATCP 35.16 Note
Note: A responsible person may obtain full reimbursement for services provided by a consultant or laboratory that is not the lowest bidder, provided that other requirements under this section are met. A responsible person should consider bid amounts, but may consider other factors including professional qualifications and special project needs.
ATCP 35.16(5)(a)(a) No contractor who provides any of the following contract services for a corrective action may provide contract services other than the following contract services for that corrective action:
ATCP 35.16(5)(b)
(b) No contractor who provides laboratory services for a corrective action, other than immunoassay services or field testing services using hand-held devices, may provide other contract services related to that corrective action.
ATCP 35.16(5)(c)
(c) Paragraphs
(a) and
(b) do not apply to a general contractor who subcontracts with independent subcontractors to provide services under par.
(a) or
(b) for a corrective action, provided the subcontractors comply with pars.
(a) and
(b).
ATCP 35.16(6)(a)(a) In every bid or cost estimate under sub.
(2), the contractor shall certify both of the following:
ATCP 35.16 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 35.16(6)(a)2.
2. That the contractor will make available to the department upon request, for inspection and copying, all of the contractor's documents and records related to the contract services.
ATCP 35.16(6)(b)
(b) If a contractor submits a bid or cost estimate under sub.
(2) to provide engineering, hydrogeologic, field technician or general contractor services, the contractor's bid shall certify that the contractor has and will maintain insurance coverage for errors and omissions, including pollution impairment liability coverage of not less than $1,000,000 per claim, for not less than $1,000,000 in annual aggregate claims, with a deductible of not more than $100,000 per claim.
ATCP 35.16 Note
Note: If a general contractor solicits other contractors on behalf of a responsible person and the responsible person contracts directly with or directly compensates the other contractors, the general contractor is subject to the insurance provisions contained in this paragraph. A contractor who subcontracts for corrective action services and directly compensates the subcontractor is not acting as a general contractor with regard to that subcontracted service.
ATCP 35.16(6)(c)
(c) If a contractor submits a bid or cost estimate under sub.
(2) to provide laboratory services, the contractor's bid shall certify that the contractor has and will maintain insurance coverage for errors and omissions (professional liability) of not less than $1,000,000 per claim, for not less than $1,000,000 in annual aggregate claims, with a deductible of not more than $100,000 per claim.
ATCP 35.16(6)(d)
(d) If a contractor submits a bid or cost estimate under sub.
(2) to provide drilling services or soil probing, the contractor's bid shall certify that the contractor has and will maintain insurance coverage for pollution impairment liability coverage of not less than $1,000,000 per claim, for not less than $1,000,000 in annual aggregate claims, with a deductible of not more than $100,000 per claim.
ATCP 35.16(7)(a)(a) If a contractor's bid or cost estimate under sub.
(2) includes any contract service or cost a contractor knows or should know is not eligible for reimbursement under this chapter, the bid or cost estimate shall clearly identify that service or cost and shall clearly disclose that it is not eligible for reimbursement by the department.
ATCP 35.16(7)(b)
(b) A contractor shall disclose, in every bid under sub.
(2) that includes landspreading services, the name of the subcontractor who will provide the landspreading services.
ATCP 35.16(8)
(8)
Exemptions. The department may reimburse necessary and reasonable contract service costs incurred by a responsible person who fails to comply with subs.
(2) to
(7) if any of the following applies:
ATCP 35.16(8)(a)
(a) The responsible person demonstrates that compliance with subs.
(2) to
(7) is not reasonably possible.
ATCP 35.16(8)(b)
(b) The contract service costs charged by the contractor do not exceed $3,000.
ATCP 35.16(8)(c)
(c) The department pays reimbursement at a rate that is no more than 75% of the rate normally allowed under s.
ATCP 35.22.
ATCP 35.16(9)
(9)
Disapproved bids or estimates. If the department finds that a bid or cost estimate under sub.
(2) is unreasonable, that bids or cost estimates appear to be noncompetitive, or that all or part of the contract service is unnecessary, the department may do any of the following:
ATCP 35.16(9)(b)
(b) Require the responsible person to obtain up to 3 additional bids or estimates. Additional bids or estimates, if any, shall comply with this section.
ATCP 35.16(9)(c)
(c) Determine that the corrective action cost eligible for reimbursement is less than the amount bid or estimated.
ATCP 35.16 History
History: Cr.
Register, August, 1994, No. 464, eff. 9-1-94; am. (1), (6) (a) (intro.), 1., and (8) (b), r. and recr. (2), (3), (4) and (5), cr. (2m), r. (7),
Register, September, 1998, No. 513, eff. 10-1-98; am. (1), (2) (a) and (c) 3., (2m) (d), (6) (b) and (c), r. (2) (c) 4., cr. (2m) (e), (6) (d), (7) and (9), r. and recr. (8),
Register, October, 2000, No. 538, eff. 11-1-00;
CR 03-119: renum. (7) to be (7) (a), cr. (7) (b), am. (9) (intro.)
Register October 2004 No. 586, eff. 11-1-04;
CR 10-122: am. (4) (b)
Register July 2011 No. 667, eff. 8-1-11;
CR 14-047: am. (6) (a) 1.
Register May 2015 No. 713, eff. 6-1-15.
ATCP 35.18(1)(a)(a) Except as provided in par.
(b) or
(c), the department may not reimburse a responsible person for eligible corrective action costs exceeding $7,500 unless the department approves a written workplan for the corrective action before the responsible person takes the corrective action.
ATCP 35.18(1)(b)
(b) Paragraph
(a) does not apply to a reasonable and necessary corrective action taken on an emergency basis.
ATCP 35.18(1)(c)
(c) A responsible person is not required to obtain department approval for a workplan under par.
(a) if the responsible person submits the workplan to the department at least 30 days before taking the corrective action, and the department neither approves nor rejects the workplan within 30 days after the department receives the workplan.
ATCP 35.18(2)
(2)
Additional site investigation or corrective action. The department may require a responsible person to perform additional investigation, or take additional corrective action, as a precondition to the reimbursement of any corrective action cost under this chapter.
ATCP 35.18 History
History: Cr.
Register, August, 1994, No. 464, eff. 9-1-94; r. and recr. (1), am. (2),
Register, September, 1998, No. 513, eff. 10-1-98; r. and recr. (1) (a),
Register, October, 2000, No. 538, eff. 11-1-00.
ATCP 35.20
ATCP 35.20
Multiple responsible persons. ATCP 35.20(1)(1)
Reimbursement limit. If more than one responsible person is eligible for reimbursement under this chapter for corrective action taken in response to one or more discharges at the same discharge site, the combined amount paid to those responsible persons may not exceed the maximum amount specified for a discharge under s.
ATCP 35.22 (4) (a) or a discharge site under s.
ATCP 35.22 (1) or
(2).
ATCP 35.20(2)(a)
(a) Before any responsible person files a reimbursement application under s.
ATCP 35.06, that responsible person shall make a reasonable effort to notify every other person, known to the applicant, who may be a responsible person and who has incurred or may foreseeably incur corrective action costs related to the same discharge site. The reimbursement application shall identify every potentially responsible person whom the applicant has notified or attempted to notify under this paragraph.
ATCP 35.20(2)(b)
(b) The department may require an applicant to notify other responsible persons, known to the department, who have incurred or may foreseeably incur corrective action costs related to the same discharge site.
ATCP 35.20 Note
Note: A responsible person who fails to give notice under sub. (2) may be liable to those not notified if, because of that failure, those persons are disqualified from all or part of the reimbursement to which they would otherwise be entitled.
ATCP 35.20(3)
(3)
Joint application. The department shall deny a reimbursement application unless every responsible person successfully notified under sub.
(2) includes the applicant's full claim for reimbursement as part of the same joint application, or waives any claim for reimbursement related to discharges to date at that discharge site. If a notified person fails to submit an application within 30 days after receiving notice, or fails to provide documentation under s.
ATCP 35.06 (1) within 60 days after receiving notice, that failure constitutes a waiver of that person's claim with respect to that application.
ATCP 35.20 History
History: Cr.
Register, August, 1994, No. 464, eff. 9-1-94; am. (1),
Register, September, 1998, No. 513, eff. 10-1-98;
CR 10-122: am. (3)
Register July 2011 No. 667, eff. 8-1-11;
CR 22-080: am. (3) Register February 2024 No. 818, eff. 3-1-24.
ATCP 35.22(1)(a)
(a) Except as provided in subs.
(2) through
(6), the department shall reimburse a responsible person for each discharge site an amount equal to 75% of the eligible corrective action costs that are greater than $3,000 and less than $400,000 for costs incurred before July 1, 2017, or that are greater than $3,000 and less than $650,000 for costs incurred on or after July 1, 2017. To this amount, the department shall add interest costs under s.
ATCP 35.25.
ATCP 35.22(1)(b)
(b) If no more than $3,000 of the eligible corrective action costs under par.
(a) were incurred prior to January 1, 2004, the total amount paid under par.
(a) may not exceed $485,250.
ATCP 35.22(1)(c)
(c) If more than $3,000 of the eligible corrective action costs under par.
(a) were incurred prior to January 1, 2004, the total amount paid under par.
(a) may not exceed $505,100 or the sum of the following, whichever amount is less:
ATCP 35.22(1)(c)1.
1. Eighty percent of the eligible corrective action costs incurred up to $400,000 prior to January 1, 2004 that exceed $3,000.
ATCP 35.22(1)(c)2.
2. Seventy-five percent of the difference between $650,000 and the eligible corrective action costs incurred prior to January 1, 2004.
ATCP 35.22(2)
(2)
Different reimbursement formula for some persons. ATCP 35.22(2)(a)(a) Except as provided in subs.
(3) through
(6), the department shall reimburse a responsible person for each discharge site an amount equal to 75% of the eligible corrective action costs that are greater than $7,500 and less than $400,000 for costs incurred before July 1, 2017, or that are greater than $7,500 and less than $650,000 for costs incurred on or after July 1, 2017, if any of the following apply at the time the discharge occurs or is discovered:
ATCP 35.22(2)(a)3.
3. The responsible person has gross annual sales of more than $2,500,000.
ATCP 35.22(2)(c)
(c) If no more than $7,500 of the eligible corrective action costs under par.
(a) were incurred prior to January 1, 2004, the total amount paid under pars.
(a) and
(b) may not exceed $481,875.
ATCP 35.22(2)(d)
(d) If more than $7,500 of the eligible corrective action costs under par.
(a) were incurred prior to January 1, 2004, the total amount paid under pars.
(a) and
(b) may not exceed $501,500 or the sum of the following, whichever amount is less:
ATCP 35.22(2)(d)1.
1. Eighty percent of the eligible corrective action costs incurred up to $400,000 prior to January 1, 2004 that exceed $7,500.
ATCP 35.22(2)(d)2.
2. Seventy-five percent of the difference between $650,000 and the eligible corrective action costs incurred prior to January 1, 2004.
ATCP 35.22(3)
(3)
Transportation discharges. For purposes of subs.
(1) and
(2), whenever an agricultural chemical is discharged while being transported from a site owned or controlled by a person who owns or controls the discharged agricultural chemical, the discharge is deemed to occur at that site.
ATCP 35.22(4)
(4)
Preapproval required for some corrective action costs. ATCP 35.22(4)(a)(a) The department may not reimburse corrective action costs that exceed $100,000 for any discharge unless the department, after determining that the costs are reasonable and necessary based on the nature, size and complexity of the corrective action, approves the additional costs before the responsible person incurs them. The department may specify conditions and limitations on its approval. An approval under s.
ATCP 35.16 (2) (c) 3. constitutes an approval under this paragraph.
ATCP 35.22(4)(b)
(b) A discharge under par.
(a) includes all discharges that occur at a discharge site before the responsible person initiates corrective action in response to any of those discharges. A subsequent discharge is considered a separate discharge under par.
(a), subject to a separate $100,000 limit.
ATCP 35.22(4)(c)
(c) A reimbursement under this subsection may not exceed the limits provided under subs.
(1) and
(2).
ATCP 35.22(5)
(5)
Corrective action costs incurred prior to January 1, 2004. For eligible corrective action costs incurred prior to January 1, 2004, the applicable reimbursement rate under subs.
(1) and
(2) is 80%, rather than 75%.
