Chapter ATCP 35

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.

ATCP 35.03(1)(a) (a) No person may landspread soil that is removed from a discharge site, and contains an agricultural chemical, unless the department issues to that person a permit authorizing that landspreading. Landspreading shall comply with conditions that the department specifies in the permit.

ATCP 35.03(1)(b) (b) An individual who landspreads soil containing a pesticide is deemed, for purposes of licensing and certification under ss. ATCP 29.25 to 29.27, to be applying that pesticide.

ATCP 35.03 Note Note: Landspreading is a potential method for destroying or recycling agricultural chemicals removed from a discharge site as part of a corrective action. The department may approve landspreading which applies agricultural chemicals at rates that are comparable to normal agronomic practice.

ATCP 35.03(2) (2) Water. No person may landspread water that is removed from a discharge site, and is contaminated with an agricultural chemical, unless all of the following apply:

ATCP 35.03(2)(a) (a) The department issues to that person a permit authorizing that landspreading.

ATCP 35.03(2)(b) (b) The department of natural resources issues to that person a pollution discharge elimination system permit, if required under ch. 283, Stats., which authorizes that landspreading.

ATCP 35.03(2)(c) (c) The landspreading complies with conditions specified by the department and the department of natural resources under pars. (a) and (b).

ATCP 35.03(3) (3) Permit application. A person applying for a landspreading permit under sub. (1) or (2) (a) shall apply on a form prescribed by the department. The person shall submit the application at least 5 department business days before any landspreading occurs. The application shall include all of the following:

ATCP 35.03(3)(a) (a) The name of the applicant and any other persons involved in the landspreading.

ATCP 35.03(3)(b) (b) The source and quantity of soil or water that will be spread on land.

ATCP 35.03(3)(c) (c) The kinds and amounts of agricultural chemical contaminants present in the soil or water under par. (b).

ATCP 35.03(3)(d) (d) The proposed application rate for each agricultural chemical under par. (c).

ATCP 35.03(3)(e) (e) The locations at which the soil or water will be spread on land.

ATCP 35.03(3)(f) (f) Any proposed tillage for which the applicant may request reimbursement.

ATCP 35.03(3)(g) (g) A landspreading agreement form, provided by the department and completed by the applicant. The completed form shall document all the following:

ATCP 35.03(3)(g)1. 1. That the owner of the proposed landspreading site has consented to the proposed landspreading.

ATCP 35.03(3)(g)2. 2. That the applicant has disclosed in writing, to the owner of the proposed landspreading site, the kinds and anticipated amounts of agricultural chemicals that will be landspread on the site. The disclosure shall state that persons applying agricultural chemicals to the site must, by law, take account of the pesticides applied by landspreading.

ATCP 35.03(3)(g)3. 3. That the owner of the proposed landspreading site has agreed to provide a copy of the disclosure under subd. 2 to any other person who may grow crops on that site within 18 months after the landspreading is completed.

ATCP 35.03 Note Note: To obtain a copy of the landspreading agreement form, contact the Department of Agriculture, Trade and Consumer Protection, Agricultural Resource Management Division, P.O. Box 8911, Madison, Wisconsin 53708.

ATCP 35.03(3)(h) (h) Other relevant information which the department may require.

ATCP 35.03(4) (4) Action on permit application. The department may approve landspreading which applies agricultural chemicals at rates that are comparable to those used in normal agronomic practice. The department shall grant or deny a permit application under sub. (3) within 30 days after the department receives a complete application.

ATCP 35.03(5) (5) Permit conditions. The department may specify conditions which apply to a permit issued under sub. (1) or (2) (a), including any applicable requirements under chs. 94, 281 to 285 and 289 to 299, Stats. The department shall specify the conditions in writing, as part of the permit.

ATCP 35.03(6) (6) Report. Within 30 days after a permit holder landspreads soil or water pursuant to a department permit under sub. (1) or (2) (a), the permit holder shall provide the department with documentation showing all of the following:

ATCP 35.03(6)(a) (a) The dates and fields on which the landspreading occurred.

ATCP 35.03(6)(b) (b) The rate at which the landspread materials were applied to each field.

ATCP 35.03(6)(c) (c) Written confirmation that the responsible person notified the owner of the landspreading site of the actual kinds and amounts of agricultural chemicals that were applied to the site as a result of the landspreading.

ATCP 35.03(6)(d) (d) A description of any problems incurred in connection with the landspreading.

ATCP 35.03(6)(e) (e) A description of the tillage performed in connection with the landspreading.

ATCP 35.03 History History: Cr. Register, September, 1998, No. 513, eff. 10-1-98; am. (3) (intro.), renum. (3) (f) to be (3) (h), cr. (3) (f), (g) and (6) (c) to (e), r. and recr. (6) (a) and (b), Register, October, 2000, No. 538, eff. 11-1-00; CR 03-119: renum. (1) to be (1) (a), cr. (1) (b) Register October 2004 No. 586, eff. 11-1-04.

ATCP 35.04 ATCP 35.04 Costs eligible for reimbursement. Subject to the provisions of this chapter, the department shall reimburse a responsible person for the following corrective action costs, and no others:

ATCP 35.04(1) (1) The cost of qualified professional services needed for the effective planning and implementation of a corrective action, including engineering, hydrogeologic, field technician, hazardous waste disposal or general contractor services.

ATCP 35.04(2) (2) Costs to sample and analyze soils, groundwater or other media. This may include costs for soil boring, installation of monitoring wells, sample collection, sample analysis and related activities.

ATCP 35.04(3) (3) Costs to excavate contaminated soils and other contaminated materials, including backfilling and grading to restore the contours or drainage characteristics of land altered by the corrective action.

ATCP 35.04(4) (4) Costs to collect, handle, transport, treat or dispose of contaminated soils, groundwater or other contaminated materials. If the responsible person disposes of contaminated soils by means of landspreading under s. ATCP 35.03, the department may reimburse the following additional costs related to that landspreading:

ATCP 35.04(4)(a) (a) Reasonable costs for tillage that is in excess of normal tillage and that is needed to reduce soil compaction caused by the landspreading. The department may not reimburse costs for more than 2 tillage passes.

ATCP 35.04(4)(b) (b) Costs for pre-plant nitrogen testing of the landspreading site to determine appropriate nitrogen credits for landspread soil that includes a significant nitrogen component. The department may reimburse pre-plant nitrogen testing only if that testing uses sampling and analytical methods that are scientifically recognized and standard within the agronomic community.

ATCP 35.04(4)(c) (c) Locally reasonable rent, not to exceed rent for one growing season, for cropland taken out of production for any of the following reasons:

ATCP 35.04(4)(c)1. 1. The necessary stockpiling of soil, pending landspreading.

ATCP 35.04(4)(c)2. 2. Crop harvesting restrictions in the landspreading permit.

ATCP 35.04(4)(d) (d) Costs to compensate a landowner for crop loss or yield reduction that occurs within one year after the landspreading if the landowner demonstrates, to a reasonable degree of certainty, that the crop loss or yield reduction was caused by one of the following:

ATCP 35.04(4)(d)1. 1. Agricultural chemicals that were present in the landspread soil, but not known to be present when the landspreading occurred.

ATCP 35.04(4)(d)2. 2. Planting delays caused by the landspreading.

ATCP 35.04(4)(d)3. 3. Soil compaction caused by landspreading, notwithstanding reasonable tillage of the landspreading site.

ATCP 35.04(4)(e) (e) Costs to compensate a landspreading site owner for access, scheduling and like costs related to landspreading, if that compensation is necessary to obtain access to a landspreading site. The department may reimburse costs that are locally reasonable, and do not exceed $0.50 per cubic yard of landspread soil. This paragraph does not apply to landspreading on a site owned by the responsible person.

ATCP 35.04(4)(f) (f) Costs to remove rocks and other debris from landspread soils. The department may reimburse costs to remove rocks and other debris before or after the landspreading occurs, but not both. The department may not reimburse costs to remove rocks or debris more than 90 days after landspreading is completed. If a responsible person obtains competitive bids to screen the soil before it is landspread, the responsible person may not substitute the costs for post-landspreading debris removal without obtaining competitive bids under s. ATCP 35.16.

ATCP 35.04(5) (5) Costs for any of the following corrective measures that the department specifically requires, or that the department specifically pre-approves in writing after finding that the measures are less expensive than the available alternatives:

ATCP 35.04(5)(a) (a) Removal and disposal of concrete or asphalt. The department may not reimburse costs for the removal or disposal of concrete or asphalt installed after January 1, 1998 unless the responsible person proves to the department, by credible laboratory tests, that the construction site was free of agricultural chemical contamination when the concrete or asphalt was installed. The cost to remove concrete or asphalt may include its depreciated value calculated as the original construction cost less all depreciation claimed to date by any person for tax purposes.

ATCP 35.04(5)(b) (b) Installation of an engineered barrier to limit infiltration of existing contamination, provided that the responsible person agrees in writing to maintain the barrier at the installer’s expense until the contamination is removed or fully degraded.

ATCP 35.04(5)(c) (c) Temporary removal and reinstallation of a structure, fixture or equipment item that is removed intact, and returned intact to its original use and approximate original location.

ATCP 35.04(5)(d) (d) The following corrective measures related to fixtures that are in good condition and operating adequately when the corrective measure occurs:

ATCP 35.04(5)(d)1. 1. Temporary or permanent relocation.

ATCP 35.04(5)(d)2. 2. Removal and replacement with a new fixture of the same size and quality, including any upgrade required by law.

ATCP 35.04(5)(d)3. 3. Protection during a corrective action, through shoring or other methods.

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: