Chapter ATCP 35

Ch. ATCP 35 Note Note: This chapter codifies the agricultural chemical cleanup program created under s. 94.73, Stats. Persons seeking information about the program, or wishing to file an application for reimbursement of cleanup costs, may contact the agricultural cleanup program in the division of agricultural resource management, Wisconsin department of agriculture, trade and consumer protection, P.O. Box No. 8911, Madison, Wisconsin, 53708-8911.

ATCP 35.01 ATCP 35.01 Definitions. In this chapter:

ATCP 35.01(1) (1) “Active groundwater remediation” means active physical, biological or chemical manipulation of groundwater, or of the rock or soil media in which groundwater is situated, for the purpose of reducing the amount of agricultural chemical contamination or minimizing the spread of contamination. “Active groundwater remediation” includes treatment by means of aeration, bio-augmentation, planned nutrient loading or pump-and-treat methods.

ATCP 35.01(2) (2) “Active soil remediation” means active physical, biological or chemical manipulation of soil for the purpose of reducing the amount of agricultural chemical contamination in soil. “Active soil remediation” includes treatment by means of excavation and landspreading, aeration, bio-augmentation or planned nutrient loading.

ATCP 35.01(3) (3) “Agricultural chemical” means a substance that is a fertilizer or a nonhousehold pesticide, and that is a hazardous substance as defined in s. 299.01 (6), Stats.

ATCP 35.01(4) (4) “Agricultural chemical cleanup council” means the council appointed under s. ATCP 35.34.

ATCP 35.01(5) (5) “Approved corrective action costs” means eligible corrective action costs which the department has approved for reimbursement under s. ATCP 35.08 (4).

ATCP 35.01(6) (6) “Approved workplan” means a workplan for corrective action that is approved by the department under s. ATCP 35.18 (1) (a).

ATCP 35.01(7) (7) “Commercial application business” has the meaning given under s. 94.67 (5), Stats.

ATCP 35.01(7m) (7m) “Contiguous land” means land included in the same parcel or an adjacent parcel. “Contiguous land” includes parcels that are separated only by a road, railway, or utility right-of-way, or by a government-owned land corridor or waterway not wider than 66 feet.

ATCP 35.01(8) (8) “Contractor” means a person who contracts to perform all or part of a corrective action. “Contractor” includes a consultant, general contractor or subcontractor who contracts to perform all or part of a corrective action, but does not include a responsible person or an employee of a responsible person.

ATCP 35.01(9) (9) “Contract services” means services provided by a contractor as part of a corrective action. “Contract services” includes all of the following services:

ATCP 35.01(9)(a) (a) Excavating.

ATCP 35.01(9)(b) (b) Trucking.

ATCP 35.01(9)(c) (c) Landspreading.

ATCP 35.01(9)(d) (d) Waste disposal services.

ATCP 35.01(9)(e) (e) Drilling, including at-depth soil sampling and well installation.

ATCP 35.01(9)(f) (f) Laboratory services.

ATCP 35.01(9)(g) (g) Professional consulting services.

ATCP 35.01(9)(h) (h) General contractor services.

ATCP 35.01(9)(i) (i) Other services provided by contractors.

ATCP 35.01(10) (10) “Corrective action” means an action, consisting of one or more corrective measures under sub. (12), that is taken or ordered in response to a discharge in this state, and that is necessary to restore the environment to the extent practicable and to minimize the harmful effects of the discharge to the air, lands or waters of this state. “Corrective action” includes an action taken or ordered by the department of natural resources under s. 292.11 (7), Stats., in response to a discharge, but does not include an action ordered by the department of natural resources under s. 291.37 (2) or 291.95, Stats. “Corrective action” does not include any action taken or required to be taken before January 1, 1989.

ATCP 35.01(11) (11) “Corrective action costs” means reasonable costs that a responsible person has actually incurred for a necessary corrective action.

ATCP 35.01(12) (12) “Corrective measures” means any of the following:

ATCP 35.01(12)(a) (a) Investigation to determine the extent and severity of environmental contamination caused by a discharge, including sampling and analysis of soils, groundwater or other media.

ATCP 35.01(12)(b) (b) Containment, removal, treatment or monitoring of environmental contamination caused by a discharge.

ATCP 35.01(12)(c) (c) Transportation, storage, land application or disposal of materials contaminated by a discharge.

ATCP 35.01(12)(d) (d) Other corrective measures approved or ordered by the department.

ATCP 35.01(13) (13) “Department” means the state of Wisconsin department of agriculture, trade and consumer protection.

ATCP 35.01(14) (14) “Discharge” means the discharge, as defined in s. 292.01 (3), Stats., of an agricultural chemical.

ATCP 35.01 Note Note: Under s. 292.01 (3), Stats., “discharge” includes, but is not limited to, spilling, leaking, pumping, pouring, emptying, emitting or dumping.

ATCP 35.01(15) (15) “Discharge site” means the area affected by one or more discharges. “Discharge site” includes all contiguous land that is owned, leased or controlled by the responsible person at the time the discharge occurs, plus any other area affected by the discharge.

ATCP 35.01(16) (16) “Eligible corrective action costs” means costs on which the department is authorized to pay reimbursement under this chapter.

ATCP 35.01(17) (17) “Fiscal year” means the state fiscal year ending June 30.

ATCP 35.01(17m) (17m) “Fixture” means any of the following:

ATCP 35.01(17m)(a) (a) Railroad tracks, ties and ballast.

ATCP 35.01(17m)(b) (b) Culverts.

ATCP 35.01(17m)(c) (c) Fences.

ATCP 35.01(17m)(d) (d) Gas mains, pipelines and related structures.

ATCP 35.01(17m)(e) (e) Electric poles, power lines and related structures.

ATCP 35.01(17m)(f) (f) Water and sewer mains and pipelines.

ATCP 35.01(17m)(g) (g) Facilities for the transmission of telecommunications or television services, including wires, optics, cables, poles and towers.

ATCP 35.01(18) (18) “General contractor” means a consultant or other contractor who, on behalf of a responsible person, secures or directs the services of other contractors related to a corrective action. “General contractor” includes a person who solicits or receives contract bids, prepares contracts, directs corrective measures performed by others, or enters into contracts with subcontractors to perform corrective measures.

ATCP 35.01(19) (19) “Household pesticide” means a pesticide that is any of the following:

ATCP 35.01(19)(a) (a) A sanitizer.

ATCP 35.01(19)(b) (b) A disinfectant.

ATCP 35.01(19)(c) (c) A germicide.

ATCP 35.01(19)(d) (d) An insect repellant that is applied to the human body or to clothing.

ATCP 35.01(19)(e) (e) A pesticide that is used exclusively for the treatment of household pets.

ATCP 35.01(19)(f) (f) A pesticide product that is labeled exclusively for household, lawn or garden use if the product either is sold in ready-to-use form or is sold exclusively in container sizes of less than one gallon.

ATCP 35.01(19)(g) (g) A solid or liquid pesticide product that is used exclusively for the treatment of swimming pools, spas or hot tubs.

ATCP 35.01(20) (20) “Indirect cost” means any general cost of doing business that cannot be directly and exclusively attributed to a corrective action. “Indirect cost” includes costs for equipment, supplies, services, real estate, structures and improvements, overhead, managerial and staff support, staff training, taxes, insurance, financing and other items which are not directly and exclusively attributable to a corrective action or whose use is not limited to the corrective action.

ATCP 35.01(20m) (20m) “Industrial pesticide” means any of the following pesticides that is not a household pesticide:

ATCP 35.01(20m)(a) (a) A pesticide that is solely labeled for use on wood and contains pentachlorophenol, coal tar creosote or inorganic arsenical wood preservatives.

ATCP 35.01(20m)(b) (b) A pesticide that is labeled for use in controlling algae, fungi, bacteria, other microscopic organisms or mollusks in or on one or more of the following, and is labeled for no other use except a use described in sub. (19) (f) or (g):

ATCP 35.01(20m)(b)1. 1. Textiles, paper, leather, plastic, vinyl or other synthetic materials, metal or rubber.

ATCP 35.01(20m)(b)2. 2. Paints, varnishes, other coating products, lubricants or fuels.

ATCP 35.01(20m)(b)3. 3. Commercial, construction, manufacturing or industrial fluids, including adhesives, additives and pigments.

ATCP 35.01(20m)(b)4. 4. Commercial, construction, manufacturing or industrial processes, equipment, devices or containers, other than those used in the production or storage of human food or animal feed.

ATCP 35.01(20m)(b)5. 5. Air washing, cooling or heat transfer systems.

ATCP 35.01(20m)(b)6. 6. Medical equipment.

ATCP 35.01(20m)(b)7. 7. Drinking water or wastewater systems.

ATCP 35.01(21) (21) “Installment” means a payment by the department, under s. ATCP 35.28, of all or part of a reimbursement amount which the department has approved for payment under s. ATCP 35.08 (4) (c).

ATCP 35.01(22) (22) “Laboratory services” means laboratory analysis and activities that are incidental to laboratory analysis.

ATCP 35.01(22m) (22m) “Landspread” means to spread or deposit on land, other than in a landfill approved by the department of natural resources under s. 289.31, Stats., soil or water removed from a discharge site.

ATCP 35.01(22r) (22r) “Nonhousehold pesticide” means a pesticide that is not a household pesticide or industrial pesticide.

ATCP 35.01(23) (23) “Responsible person” means any of the following persons, or that person’s successor in interest:

ATCP 35.01(23)(a) (a) A person who owns or controls an agricultural chemical that is discharged.

ATCP 35.01(23)(b) (b) A person who causes a discharge.

ATCP 35.01(23)(c) (c) A person on whose property an agricultural chemical is discharged.

ATCP 35.01 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (1), (3), (6), (10), (14), (15) and (20), cr. (7m), (20m), (22m) and (22r), r. and recr. (9) and (19), Register, September, 1998, No. 513, eff. 10-1-98; am. (4), cr. (17m), Register, October, 2000, No. 538, eff. 11-1-00; CR 14-047: am. (3) Register May 2015 No. 713, eff. 6-1-15.

ATCP 35.02 ATCP 35.02 Corrective action order.

ATCP 35.02(1) (1) General. The department may issue an order requiring a responsible person to take a corrective action. An order under this subsection shall include all of the following:

ATCP 35.02(1)(a) (a) The name and address of the responsible person.

ATCP 35.02(1)(b) (b) A description of the property on which the responsible person is required to take corrective action.

ATCP 35.02(1)(c) (c) A description of the corrective action which the responsible person is required to take.

ATCP 35.02(1)(d) (d) A date by which the responsible person is required to complete the corrective action.

ATCP 35.02(1)(e) (e) Notice that the corrective action is required to comply with the following:

ATCP 35.02(1)(e)1. 1. Applicable department rules under chs. ATCP 29 to 33 and this chapter.

ATCP 35.02(1)(e)2. 2. Applicable rules of the department of natural resources under chs. NR 700, 706, 708 and 712 to 727.

ATCP 35.02 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 35.02(2) (2) Summary order.

ATCP 35.02(2)(a) (a) The department may issue an order under sub. (1) on a summary basis, without prior notice or hearing, if the department determines that a summary order is necessary to prevent imminent harm to public health or safety or to the environment.

ATCP 35.02(2)(b) (b) If the recipient of a summary order under par. (a) requests a hearing on that order, the department shall hold an informal hearing within 10 days after the department receives the hearing request unless the recipient of the order consents to a later date for the informal hearing. If a contested matter is not resolved at the informal hearing, the recipient of the order is entitled to a class 2 contested case hearing under ch. 227, Stats., and ch. ATCP 1.

ATCP 35.02(2)(c) (c) The department is not required to stay a summary order issued under par. (a) pending the outcome of a hearing under par. (b). If, after a hearing under par. (b), the department determines that a summary order under par. (a) was not justified, the department shall reimburse the recipient of the order for reasonable corrective action costs necessarily incurred by the recipient to comply with the unjustified order.

ATCP 35.02 Note Note: See ch. ATCP 1 for procedure related to administrative orders and contested cases. Under s. 94.73 (13), Stats., a person who violates a corrective action order issued by the department under this section is subject to a civil forfeiture of not less than $10 nor more than $5,000 for each violation. Each day of continued violation is a separate offense.

ATCP 35.02 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (1) (e) 1., 2., (2) (b) and (c), Register, September, 1998, No. 513, eff. 10-1-98; CR 14-047: am. (1) (e) 2. Register May 2015 No. 713, eff. 6-1-15.

ATCP 35.03 ATCP 35.03 Landspreading.

ATCP 35.03(1) (1) Soil.