Chapter ATCP 35

ATCP 35.16(5)(a)1. 1. Excavating.

ATCP 35.16(5)(a)2. 2. Trucking.

ATCP 35.16(5)(a)3. 3. Landspreading and other waste treatment or disposal services.

ATCP 35.16(5)(a)4. 4. Drilling, including at-depth soil sampling and well installation.

ATCP 35.16(5)(b) (b) No contractor who provides laboratory services for a corrective action, other than immunoassay services or field testing services using hand-held devices, may provide other contract services related to that corrective action.

ATCP 35.16(5)(c) (c) Paragraphs (a) and (b) do not apply to a general contractor who subcontracts with independent subcontractors to provide services under par. (a) or (b) for a corrective action, provided the subcontractors comply with pars. (a) and (b).

ATCP 35.16(6) (6) Certification by contractor.

ATCP 35.16(6)(a) (a) In every bid or cost estimate under sub. (2), the contractor shall certify both of the following:

ATCP 35.16(6)(a)1. 1. That the contract services will comply with applicable requirements under this chapter, chs. ATCP 29 to 33, and chs. NR 700, 706, 708 and 712 to 727.

ATCP 35.16 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 35.16(6)(a)2. 2. That the contractor will make available to the department upon request, for inspection and copying, all of the contractor’s documents and records related to the contract services.

ATCP 35.16(6)(b) (b) If a contractor submits a bid or cost estimate under sub. (2) to provide engineering, hydrogeologic, field technician or general contractor services, the contractor’s bid shall certify that the contractor has and will maintain insurance coverage for errors and omissions, including pollution impairment liability coverage of not less than $1,000,000 per claim, for not less than $1,000,000 in annual aggregate claims, with a deductible of not more than $100,000 per claim.

ATCP 35.16 Note Note: If a general contractor solicits other contractors on behalf of a responsible person and the responsible person contracts directly with or directly compensates the other contractors, the general contractor is subject to the insurance provisions contained in this paragraph. A contractor who subcontracts for corrective action services and directly compensates the subcontractor is not acting as a general contractor with regard to that subcontracted service.

ATCP 35.16(6)(c) (c) If a contractor submits a bid or cost estimate under sub. (2) to provide laboratory services, the contractor’s bid shall certify that the contractor has and will maintain insurance coverage for errors and omissions (professional liability) of not less than $1,000,000 per claim, for not less than $1,000,000 in annual aggregate claims, with a deductible of not more than $100,000 per claim.

ATCP 35.16(6)(d) (d) If a contractor submits a bid or cost estimate under sub. (2) to provide drilling services or soil probing, the contractor’s bid shall certify that the contractor has and will maintain insurance coverage for pollution impairment liability coverage of not less than $1,000,000 per claim, for not less than $1,000,000 in annual aggregate claims, with a deductible of not more than $100,000 per claim.

ATCP 35.16(7) (7) Contractor disclosure.

ATCP 35.16(7)(a) (a) If a contractor’s bid or cost estimate under sub. (2) includes any contract service or cost a contractor knows or should know is not eligible for reimbursement under this chapter, the bid or cost estimate shall clearly identify that service or cost and shall clearly disclose that it is not eligible for reimbursement by the department.

ATCP 35.16(7)(b) (b) A contractor shall disclose, in every bid under sub. (2) that includes landspreading services, the name of the subcontractor who will provide the landspreading services.

ATCP 35.16(8) (8) Exemptions. The department may reimburse necessary and reasonable contract service costs incurred by a responsible person who fails to comply with subs. (2) to (7) if any of the following applies:

ATCP 35.16(8)(a) (a) The responsible person demonstrates that compliance with subs. (2) to (7) is not reasonably possible.

ATCP 35.16(8)(b) (b) The contract service costs charged by the contractor do not exceed $3,000.

ATCP 35.16(8)(c) (c) The department pays reimbursement at a rate that is no more than 75% of the rate normally allowed under s. ATCP 35.22.

ATCP 35.16(9) (9) Disapproved bids or estimates. If the department finds that a bid or cost estimate under sub. (2) is unreasonable, that bids or cost estimates appear to be noncompetitive, or that all or part of the contract service is unnecessary, the department may do any of the following:

ATCP 35.16(9)(a) (a) Disapprove the bid or estimate.

ATCP 35.16(9)(b) (b) Require the responsible person to obtain up to 3 additional bids or estimates. Additional bids or estimates, if any, shall comply with this section.

ATCP 35.16(9)(c) (c) Determine that the corrective action cost eligible for reimbursement is less than the amount bid or estimated.

ATCP 35.16 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (1), (6) (a) (intro.), 1., and (8) (b), r. and recr. (2), (3), (4) and (5), cr. (2m), r. (7), Register, September, 1998, No. 513, eff. 10-1-98; am. (1), (2) (a) and (c) 3., (2m) (d), (6) (b) and (c), r. (2) (c) 4., cr. (2m) (e), (6) (d), (7) and (9), r. and recr. (8), Register, October, 2000, No. 538, eff. 11-1-00; CR 03-119: renum. (7) to be (7) (a), cr. (7) (b), am. (9) (intro.) Register October 2004 No. 586, eff. 11-1-04; CR 10-122: am. (4) (b) Register July 2011 No. 667, eff. 8-1-11; CR 14-047: am. (6) (a) 1. Register May 2015 No. 713, eff. 6-1-15.

ATCP 35.18 ATCP 35.18 Reimbursement conditions.

ATCP 35.18(1) (1) Workplan required.

ATCP 35.18(1)(a) (a) Except as provided in par. (b) or (c), the department may not reimburse a responsible person for eligible corrective action costs exceeding $7,500 unless the department approves a written workplan for the corrective action before the responsible person takes the corrective action.

ATCP 35.18(1)(b) (b) Paragraph (a) does not apply to a reasonable and necessary corrective action taken on an emergency basis.

ATCP 35.18(1)(c) (c) A responsible person is not required to obtain department approval for a workplan under par. (a) if the responsible person submits the workplan to the department at least 30 days before taking the corrective action, and the department neither approves nor rejects the workplan within 30 days after the department receives the workplan.

ATCP 35.18(2) (2) Additional site investigation or corrective action. The department may require a responsible person to perform additional investigation, or take additional corrective action, as a precondition to the reimbursement of any corrective action cost under this chapter.

ATCP 35.18 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; r. and recr. (1), am. (2), Register, September, 1998, No. 513, eff. 10-1-98; r. and recr. (1) (a), Register, October, 2000, No. 538, eff. 11-1-00.

ATCP 35.20 ATCP 35.20 Multiple responsible persons.

ATCP 35.20(1) (1) Reimbursement limit. If more than one responsible person is eligible for reimbursement under this chapter for corrective action taken in response to one or more discharges at the same discharge site, the combined amount paid to those responsible persons may not exceed the maximum amount specified for a discharge under s. ATCP 35.22 (4) (a) or a discharge site under s. ATCP 35.22 (1) or (2).

ATCP 35.20 Note Note: See s. 94.73 (6) (am), Stats.

ATCP 35.20(2) (2) Notice to other responsible persons.

ATCP 35.20(2)(a) (a) Before any responsible person files a reimbursement application under s. ATCP 35.06, that responsible person shall make a reasonable effort to notify every other person, known to the applicant, who may be a responsible person and who has incurred or may foreseeably incur corrective action costs related to the same discharge site. The reimbursement application shall identify every potentially responsible person whom the applicant has notified or attempted to notify under this paragraph.

ATCP 35.20(2)(b) (b) The department may require an applicant to notify other responsible persons, known to the department, who have incurred or may foreseeably incur corrective action costs related to the same discharge site.

ATCP 35.20 Note Note: A responsible person who fails to give notice under sub. (2) may be liable to those not notified if, because of that failure, those persons are disqualified from all or part of the reimbursement to which they would otherwise be entitled.

ATCP 35.20(3) (3) Joint application. The department shall deny a reimbursement application unless every responsible person successfully notified under sub. (2) includes the applicant’s full claim for reimbursement as part of the same joint application, or waives any claim for reimbursement related to discharges to date at that discharge site. If a notified person fails to submit an application within 30 days after receiving notice, or fails to provide documentation under s. ATCP 35.06 (1) within 60 days after receiving notice, that failure constitutes a waiver of that person’s claim with respect to that application.

ATCP 35.20 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (1), Register, September, 1998, No. 513, eff. 10-1-98; CR 10-122: am. (3) Register July 2011 No. 667, eff. 8-1-11; CR 22-080: am. (3) Register February 2024 No. 818, eff. 3-1-24.

ATCP 35.22 ATCP 35.22 Reimbursement amounts.

ATCP 35.22(1) (1) General reimbursement formula.

ATCP 35.22(1)(a) (a) Except as provided in subs. (2) through (6), the department shall reimburse a responsible person for each discharge site an amount equal to 75% of the eligible corrective action costs that are greater than $3,000 and less than $400,000 for costs incurred before July 1, 2017, or that are greater than $3,000 and less than $650,000 for costs incurred on or after July 1, 2017. To this amount, the department shall add interest costs under s. ATCP 35.25.

ATCP 35.22(1)(b) (b) If no more than $3,000 of the eligible corrective action costs under par. (a) were incurred prior to January 1, 2004, the total amount paid under par. (a) may not exceed $485,250.

ATCP 35.22(1)(c) (c) If more than $3,000 of the eligible corrective action costs under par. (a) were incurred prior to January 1, 2004, the total amount paid under par. (a) may not exceed $505,100 or the sum of the following, whichever amount is less:

ATCP 35.22(1)(c)1. 1. Eighty percent of the eligible corrective action costs incurred up to $400,000 prior to January 1, 2004 that exceed $3,000.

ATCP 35.22(1)(c)2. 2. Seventy-five percent of the difference between $650,000 and the eligible corrective action costs incurred prior to January 1, 2004.

ATCP 35.22(2) (2) Different reimbursement formula for some persons.

ATCP 35.22(2)(a) (a) Except as provided in subs. (3) through (6), the department shall reimburse a responsible person for each discharge site an amount equal to 75% of the eligible corrective action costs that are greater than $7,500 and less than $400,000 for costs incurred before July 1, 2017, or that are greater than $7,500 and less than $650,000 for costs incurred on or after July 1, 2017, if any of the following apply at the time the discharge occurs or is discovered:

ATCP 35.22(2)(a)1. 1. The responsible person is required to be licensed under ss. 94.67 to 94.71, Stats.

ATCP 35.22(2)(a)2. 2. The responsible person employs more than 25 persons.

ATCP 35.22(2)(a)3. 3. The responsible person has gross annual sales of more than $2,500,000.

ATCP 35.22(2)(b) (b) To the amount under par. (a) the department shall add interest costs under s. ATCP 35.25.

ATCP 35.22(2)(c) (c) If no more than $7,500 of the eligible corrective action costs under par. (a) were incurred prior to January 1, 2004, the total amount paid under pars. (a) and (b) may not exceed $481,875.

ATCP 35.22(2)(d) (d) If more than $7,500 of the eligible corrective action costs under par. (a) were incurred prior to January 1, 2004, the total amount paid under pars. (a) and (b) may not exceed $501,500 or the sum of the following, whichever amount is less:

ATCP 35.22(2)(d)1. 1. Eighty percent of the eligible corrective action costs incurred up to $400,000 prior to January 1, 2004 that exceed $7,500.

ATCP 35.22(2)(d)2. 2. Seventy-five percent of the difference between $650,000 and the eligible corrective action costs incurred prior to January 1, 2004.

ATCP 35.22(3) (3) Transportation discharges. For purposes of subs. (1) and (2), whenever an agricultural chemical is discharged while being transported from a site owned or controlled by a person who owns or controls the discharged agricultural chemical, the discharge is deemed to occur at that site.

ATCP 35.22(4) (4) Preapproval required for some corrective action costs.

ATCP 35.22(4)(a) (a) The department may not reimburse corrective action costs that exceed $100,000 for any discharge unless the department, after determining that the costs are reasonable and necessary based on the nature, size and complexity of the corrective action, approves the additional costs before the responsible person incurs them. The department may specify conditions and limitations on its approval. An approval under s. ATCP 35.16 (2) (c) 3. constitutes an approval under this paragraph.

ATCP 35.22(4)(b) (b) A discharge under par. (a) includes all discharges that occur at a discharge site before the responsible person initiates corrective action in response to any of those discharges. A subsequent discharge is considered a separate discharge under par. (a), subject to a separate $100,000 limit.

ATCP 35.22(4)(c) (c) A reimbursement under this subsection may not exceed the limits provided under subs. (1) and (2).

ATCP 35.22(5) (5) Corrective action costs incurred prior to January 1, 2004. For eligible corrective action costs incurred prior to January 1, 2004, the applicable reimbursement rate under subs. (1) and (2) is 80%, rather than 75%.

ATCP 35.22(6) (6) Reduced reimbursement rate for repeat discharges. The department may reduce the applicable reimbursement rate under this section, if a reduction is appropriate under s. ATCP 35.08 (6).

ATCP 35.22 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; r. and recr., Register, September, 1998, No. 513, eff. 10-1-98; am. (1), (2) (a) (intro.) and (4) (a), r. (4) (b), Register, October, 2000, No. 538, eff. 11-1-00; CR 03-119: r. and recr. (1) and (2), renum. (4) (c) and (d) to be (4) (b) and (c), cr. (5) and (6) Register October 2004 No. 586, eff. 11-1-04; CR 22-080: am. (1), (2) (a) (intro.), (c), (d) Register February 2024 No. 818, eff. 3-1-24.

ATCP 35.25 ATCP 35.25 Interest on approved reimbursement amounts. The department shall add interest to a reimbursement amount calculated under s. ATCP 35.22 at a rate equal to the prime interest rate on the date when the department receives a complete reimbursement application. The department shall calculate interest from that date for the unpaid balance approved under s. ATCP 35.22.

ATCP 35.25 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. Register, September, 1998, No. 513, eff. 10-1-98.

ATCP 35.26 ATCP 35.26 Partial corrective action; reimbursement.

ATCP 35.26(1) (1) Upon completing any of the following portions of a corrective action, a responsible person may apply for and receive reimbursement of eligible corrective action costs which the responsible person pays prior to the reimbursement application date:

ATCP 35.26(1)(a) (a) An emergency response, if any.

ATCP 35.26(1)(b) (b) A soil investigation approved by the department. If the soil investigation concludes that active soil remediation is necessary, the department shall approve an active soil remediation plan before reimbursing the responsible person for the soil investigation.

ATCP 35.26(2) (2) The department may not reimburse any portion of a corrective action under sub. (1) unless the responsible person demonstrates, to the department’s satisfaction, that the responsible person is proceeding in a timely manner with the remainder of the corrective action. The department may withhold reimbursement pending department approval of a workplan for the remainder of the corrective action.

ATCP 35.26(3) (3) If, after receiving any reimbursement under sub. (1), a responsible person fails to complete a corrective action as required under this subsection, the department may direct the responsible person to return that reimbursement by a specified date. If the department properly directs a responsible person to return a reimbursement, the responsible person shall return the reimbursement according to the department’s directive.

ATCP 35.26(4) (4) Reimbursement under sub. (1) for a portion of a corrective action does not affect the reimbursement rate that applies to a discharge under s. ATCP 35.22 (4) (a) or to a discharge site under s. ATCP 35.22 (1) or (2).

ATCP 35.26 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; r. and recr. Register, September, 1998, No. 513, eff. 10-1-98.

ATCP 35.28 ATCP 35.28 Reimbursement payments. The department shall reimburse responsible persons for approved corrective action costs, in the total amount approved for each corrective action under s. ATCP 35.08 (4) (c), in the order in which the department receives complete reimbursement applications from those responsible persons. The department shall make payments under this section from the appropriations under s. 20.115 (7) (wm), Stats. Notwithstanding any other provision of this chapter, payment is subject to the availability of funds in those appropriations.

ATCP 35.28 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; r. and recr. (1) and (2), am. (3) (a), renum. (3) (d) to be (3) (c), r. (4) and (5), Register, September, 1998, No. 513, eff. 10-1-98; CR 03-119: r. and recr. Register October 2004 No. 586, eff. 11-1-04; correction made under s. 13.92 (4) (b) 7., Stats., Register July 2011 No. 667.

ATCP 35.30 ATCP 35.30 Contested insurance claim; duplicate reimbursement; repayment. If, after being reimbursed by the department for any corrective action cost, a responsible person recovers on a contested insurance claim related to the same corrective action, the responsible person shall apply the proceeds of that recovery as follows:

ATCP 35.30(1) (1) The responsible person may first apply the proceeds to pay reasonable legal fees, reasonable expert witness fees and other reasonable legal costs necessarily incurred by the responsible person to obtain the recovery.

ATCP 35.30(2) (2) The responsible person may next apply the proceeds against that portion of the responsible person’s eligible corrective action costs which exceeds the maximum amount on which the department may pay reimbursement under s. ATCP 35.22.

ATCP 35.30(3) (3) The responsible person shall pay to the department a percentage of any remaining proceeds which equals the applicable reimbursement rate specified under s. ATCP 35.22, except that the total amount repaid under this subsection need not exceed the total amount of reimbursement which the department paid to the responsible person for the same corrective action.

ATCP 35.30 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (2) and (3), Register, September, 1998, No. 513, eff. 10-1-98.

ATCP 35.32 ATCP 35.32 Hearing on denial of reimbursement application.

ATCP 35.32(1) (1) Request for hearing. A person adversely affected by the department’s disapproval of a reimbursement application under s. ATCP 35.08 (5) may, within 30 days after receiving notice of that disapproval, request a hearing before the department to contest that disapproval. A request for hearing shall be made in writing and shall specify the grounds for the request.

ATCP 35.32(2) (2) Informal hearing.

ATCP 35.32(2)(a) (a) Within 10 business days after the department receives a request for hearing under sub. (1), the department shall hold an informal hearing in response to the request unless the requester agrees to a later date for the informal hearing. The informal hearing shall be held before a department employee or official who is authorized to reverse or modify the department’s decision as necessary. The informal hearing shall be held by telephone or at a location determined by the department.