Chapter ATCP 35

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.

ATCP 35.12(5) (5) Taken in response to a discharge that occurs while the agricultural chemical is being held or transported by a common carrier.

ATCP 35.12(6) (6) Taken in response to a discharge from a landfill or other facility that is any of the following:

ATCP 35.12(6)(a) (a) A facility required to be licensed under s. 289.31, Stats.

ATCP 35.12(6)(b) (b) A facility that would be required to be licensed under s. 289.31, Stats., except that the department of natural resources has issued a specific exemption under s. 289.43, Stats., or rules promulgated under s. 289.05 (1) or (2), Stats.

ATCP 35.12(6)(c) (c) A closed or abandoned solid or hazardous waste disposal facility that, if operating today, would require a license under s. 289.31, Stats., or a specific license exemption under s. 289.05 (1) or (2), Stats.

ATCP 35.12(7) (7) Taken in violation of federal, state or local law.

ATCP 35.12(8) (8) Taken in response to a discharge caused by an intentional or grossly negligent violation of law committed by the responsible person or the responsible person’s agent, including an intentional or grossly negligent violation of ss. 94.645, 94.67 to 94.71, 94.73 or 292.11, Stats., or of any rule or order adopted under those sections.

ATCP 35.12(9) (9) Taken without a reasonable technical or scientific basis.

ATCP 35.12(10) (10) Taken without a reasonable prospect of success or environmental benefit.

ATCP 35.12(11) (11) Taken at a discharge site located outside this state.

ATCP 35.12 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (1) to (3), (6) (a) to (c), (8) and (10), Register, September, 1998, No. 513, eff. 10-1-98.

ATCP 35.14 ATCP 35.14 Costs not eligible for reimbursement. The department may not reimburse a responsible person for any of the following:

ATCP 35.14(1) (1) Costs that are not eligible for reimbursement under s. ATCP 35.04.

ATCP 35.14(2) (2) Indirect costs charged by a contractor unless those costs are allocated to the contract according to a reasonable cost allocation formula that the contractor uses for other, similar contracts.

ATCP 35.14 Note Note: An example of a reasonable cost allocation formula may be obtained from the Department of Agriculture, Trade and Consumer Protection, Agricultural Resource Management Division, P.O. Box 8911, Madison WI 53708

ATCP 35.14(3) (3) A responsible person’s indirect costs. This does not prohibit the department from reimbursing any of the following:

ATCP 35.14(3)(a) (a) Actual costs for equipment, supplies or services that are used exclusively for the corrective action. If a responsible person purchases equipment that is used exclusively for the corrective action, the department may pay reimbursement on the difference between the purchase cost and the reasonable salvage value of that equipment, provided that the difference does not exceed the reasonable rental cost for equivalent equipment.

ATCP 35.14(3)(b) (b) Normal employee wages, salaries, expenses or fringe benefit allocations for time which the responsible person’s employees actually spend on a corrective action.

ATCP 35.14(3)(c) (c) Costs for equipment owned by the responsible person and used during a corrective action for excavating, trucking or landspreading, provided that all of the following apply:

ATCP 35.14(3)(c)1. 1. The equipment is reasonably sized and designed to perform the corrective action.

ATCP 35.14(3)(c)2. 2. The hours or units of equipment use are reasonable and necessary for the task performed.

ATCP 35.14(3)(c)3. 3. The equipment costs are determined according to a reasonable cost allocation formula.

ATCP 35.14(3)(c)4. 4. The equipment costs do not exceed reasonable rental costs for equivalent equipment, including any operator costs.

ATCP 35.14(4) (4) The cost for the time that the responsible person, or any officer of the responsible person, spends planning or implementing a corrective action. This does not prohibit the department from reimbursing normal employee wages, salaries, expenses or fringe benefit allocations for time which employees, other than officers, spend implementing a corrective action.

ATCP 35.14(5) (5) Costs to construct, repair, replace, improve, relocate or demolish any structure, equipment or fixture, except as provided under s. ATCP 35.04 (5).

ATCP 35.14(6) (6) Loss or impairment of property values or other assets, except as provided under s. ATCP 35.04 (5).

ATCP 35.14(7) (7) Loss or impairment of revenue or income.

ATCP 35.14(8) (8) Attorney fees or other legal costs.

ATCP 35.14(9) (9) Costs of relocating residents or business operations.

ATCP 35.14(10) (10) Costs of aesthetic or other improvements that are not essential to a corrective action, except for restorative grading and filling costs authorized under s. ATCP 35.04 (3).

ATCP 35.14(11) (11) A cost that is reimbursed from another source. If, after being reimbursed by the department for any cost, a responsible person is reimbursed for the same cost from another source, the responsible person shall promptly notify the department and repay any duplicate reimbursement.

ATCP 35.14 Note Note: See s. ATCP 35.30 related to duplicate reimbursement recovered as a result of a contested insurance claim.

ATCP 35.14(12) (12) The cost of replacing discharged agricultural chemicals.

ATCP 35.14(13) (13) The cost of providing alternative sources of drinking water or point–of–use water purification devices, except that the department may reimburse a responsible person up to $50,000 for any of the following corrective actions if the department or the department of natural resources orders that action in response to a discharge:

ATCP 35.14(13)(a) (a) Replacement or restoration of private wells.

ATCP 35.14(13)(b) (b) Connection to alternative water sources, whether public or private.

ATCP 35.14(14) (14) Liability claims or judgments.

ATCP 35.14(15) (15) Costs incurred by any federal, state or local government entity. The department may reimburse a responsible person for corrective action costs incurred by the department of natural resources under s. 292.11 (7) (a), Stats., and charged to the responsible person, provided that the responsible person reimbursed the department of natural resources and did not fail or refuse to take corrective action in response to an order or directive from the department or the department of natural resources.

ATCP 35.14(16) (16) Costs for a contractor’s services that exceed the contractor’s bid price for those services, except as provided under s. ATCP 35.16 (2) (c).

ATCP 35.14(17) (17) Costs that the responsible person has not yet paid, or on which the responsible person may later receive a discount or rebate.

ATCP 35.14(18) (18) Costs not supported by a canceled check or other conclusive proof of payment by the responsible person who is applying for reimbursement of those costs.

ATCP 35.14(19) (19) Costs to investigate or repair environmental contamination involving substances that are not agricultural chemicals. If a corrective action under this chapter is combined with the investigation or repair of environmental contamination involving substances that are not agricultural chemicals, the department may reimburse a portion of the combined project costs based on a reasonable cost allocation formula approved by the department. If, for any combination project, a responsible person also submits a reimbursement application to another governmental agency, the cost allocation formula shall be approved by the department and that other agency.

ATCP 35.14(20) (20) Costs to analyze environmental samples for substances that are not agricultural chemicals, except that the department may reimburse costs for the analysis of environmental parameters if that analysis is needed for the design or implementation of a corrective action.

ATCP 35.14(21) (21) Costs to analyze environmental samples for agricultural chemicals that are not reasonably suspected of having been discharged at the discharge site.

ATCP 35.14(22) (22) Costs for environmental audits, evaluations or appraisals, other than those needed for the effective planning and implementation of a corrective action.

ATCP 35.14(23) (23) Costs incurred by a responsible person because of a contractor’s breach of contract.

ATCP 35.14(24) (24) Costs to prepare an application under s. ATCP 35.06, to contest an application decision under s. ATCP 35.32 or to consult with the department on the application.

ATCP 35.14(25) (25) Air travel expenses.

ATCP 35.14(26) (26) Expense charges for meals, lodging, travel or other personal expenses that exceed actual, necessary or reasonable expenses.

ATCP 35.14(27) (27) Supplementary charges for expedited services, including expedited laboratory analysis, mail service or parcel delivery service, unless the department approves those charges in advance.

ATCP 35.14(28) (28) Contractor charges that are not based on services provided by the contractor and documented under s. ATCP 35.06 (1) (g) and (h).

ATCP 35.14(29) (29) Interest expenses or other financing costs, except as calculated by the department under s. ATCP 35.25.

ATCP 35.14(30) (30) The following costs related to landspreading under s. ATCP 35.03:

ATCP 35.14(30)(a) (a) Compensation for crop damage, except as provided in s. ATCP 35.04 (4) (d).

ATCP 35.14(30)(b) (b) Residue sampling for nutrients or pesticides, except as provided in s. ATCP 35.04 (4) (b).

ATCP 35.14(30)(c) (c) Land rental or access charges, except as provided in s. ATCP 35.04 (4) (c) and (e).

ATCP 35.14(31) (31) Costs for subcontractor service charges or markups.

ATCP 35.14(32) (32) Costs to plant or till land on which the responsible person landspreads soil or water under s. ATCP 35.03, unless the department requires that land to be planted or tilled.

ATCP 35.14 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (3) (intro.), (4), (15), (16), (24), (27), (28) and (30), cr. (3) (c), (31) and (32), Register, September, 1998, No. 513, eff. 10-1-98; am. (5) and (6), r. and recr. (30), Register, October, 2000, No. 538, eff. 11-1-00; CR 03-119: am. (5), r. and recr. (13) Register October 2004 No. 586, eff. 11-1-04; CR 10-122: am. (19) Register July 2011 No. 667, eff. 8-1-11.

ATCP 35.16 ATCP 35.16 Contract services.

ATCP 35.16(1) (1) General requirement. Except as provided in sub. (8), the department may not reimburse a responsible person for the cost of a contract service unless the responsible person contracts that service according to subs. (2) to (7).