Chapter ATCP 35

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).

ATCP 35.16(2) (2) Bids and estimates required.

ATCP 35.16(2)(a) (a) The department may not reimburse a responsible person for contract services performed at a discharge site unless the responsible person selects the contractor to provide services at that site on the basis of at least 3 competitive bids. The responsible person shall provide the department with a copy of the accepted bid before authorizing the contractor to proceed.

ATCP 35.16(2)(b) (b) Except as provided in par. (c), the department may not reimburse a responsible person for contract service costs that exceed the contractor’s bid for those services under par. (a).

ATCP 35.16(2)(c) (c) The department may reimburse a responsible person for contract services not included in the contractor’s initial bid under par. (a), or for additional hours or units of service beyond those included in the bid under par. (a), if all of the following apply:

ATCP 35.16(2)(c)1. 1. The contractor providing the additional services was selected by the competitive bidding procedure under par. (a).

ATCP 35.16(2)(c)2. 2. The contractor bills for the additional services at the same per-unit price at which the contractor agreed to provide equivalent services, if any, in the contractor’s initial bid under par. (a).

ATCP 35.16(2)(c)3. 3. The contractor provides the responsible person and the department with a cost estimate for the additional services, and obtains the approval of the responsible person and the department, before performing those services.

ATCP 35.16(2)(c)5. 5. The responsible person gives the contractor written authorization to proceed with the additional services, after receiving the contractor’s estimate under subd. 3.

ATCP 35.16(2)(c)6. 6. The cost for the additional services does not exceed the contractor’s estimate under subd. 3.

ATCP 35.16(2)(c)7. 7. The additional services do not involve the selection, design or installation of active groundwater remediation.

ATCP 35.16(2)(d) (d) A responsible person requesting reimbursement from the department shall keep copies of all bids and estimates required under this subsection, and shall make those copies available to the department for inspection and copying upon request. The responsible person shall keep copies of the bids and cost estimates for at least 2 years after the department has paid or denied all reimbursements to which those bids or cost estimates pertain.

ATCP 35.16(2m) (2m) Bid and estimate contents. Every bid under sub. (2) (a) and every cost estimate under sub. (2) (c) 3. shall include all of the following:

ATCP 35.16(2m)(a) (a) A clear description and itemization of the contract services included in the bid or estimate. The description shall be based on an approved workplan or, if there is no workplan, on a good faith estimate of the scope of the project as stated in the bid or estimate.

ATCP 35.16(2m)(b) (b) A total bid price or cost estimate for all of the contract services included in the bid or estimate, and a subtotal price for each of the component services itemized in the bid or estimate.

ATCP 35.16(2m)(c) (c) The following information related to every service priced on an hourly or per unit basis:

ATCP 35.16(2m)(c)1. 1. The price per hour or per unit of service.

ATCP 35.16(2m)(c)2. 2. A reasonable, good faith estimate of the number of hours or units of service to be provided.

ATCP 35.16(2m)(c)3. 3. The total estimated price for the service, based on the estimate under subd. 2.

ATCP 35.16(2m)(c)4. 4. The estimated date by which the contractor will perform the service.

ATCP 35.16(2m)(d) (d) Every certification and disclosure required of the contractor under subs. (6) and (7).

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)(a)1. 1. Excavating.

ATCP 35.16(3)(a)2. 2. Trucking.

ATCP 35.16(3)(a)3. 3. Landspreading and other waste treatment or disposal services.

ATCP 35.16(3)(a)4. 4. Drilling, including at-depth soil sampling and well installation.

ATCP 35.16(3)(a)5. 5. Laboratory services.

ATCP 35.16(3)(a)6. 6. Services normally billed 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.