Chapter ATCP 35

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:

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).