Chapter ATCP 35

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.

ATCP 35.32(2)(b) (b) Within 10 business days after the conclusion of the informal hearing under par. (a), the presiding officer shall issue a brief written memorandum which summarizes the informal hearing, and any decision or action resulting from the informal hearing. A copy of the memorandum shall be provided to the person who requested the hearing. The memorandum shall include a notice of the person’s right to request a formal contested case hearing under sub. (3).

ATCP 35.32(3) (3) Formal hearing. If a contest related to the disapproval of a reimbursement application is not resolved after an informal hearing under sub. (2), a person adversely affected by the department’s disapproval of the application may request a full contested case hearing on the disapproval. A request for a full contested case hearing shall be filed with the department, in writing, within 30 days after the date of the informal hearing under sub. (2).

ATCP 35.32 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (1) and (3), Register, September, 1998, No. 513, eff. 10-1-98.

ATCP 35.34 ATCP 35.34 Agricultural chemical cleanup council.

ATCP 35.34(1) (1) Creation. The department shall appoint an advisory council to advise the department on matters related to the administration of this chapter. The advisory council shall be called the agricultural chemical cleanup council.

ATCP 35.34(2) (2) Members. The agricultural chemical cleanup council shall consist of the following members, appointed for 2-year terms:

ATCP 35.34(2)(a) (a) Two farmers.

ATCP 35.34(2)(b) (b) Two pesticide dealers or commercial applicators.

ATCP 35.34(2)(c) (c) One environmental consultant.

ATCP 35.34(2)(d) (d) One agricultural chemical manufacturer or wholesaler.

ATCP 35.34(3) (3) Meetings. The agricultural chemical cleanup council shall meet, at the call of the department, to advise the department on any of the following matters on which the department seeks advice:

ATCP 35.34(3)(a) (a) Rules proposed under s. 94.73, Stats.

ATCP 35.34(3)(b) (b) Fees and surcharges to fund reimbursement of corrective action costs.

ATCP 35.34(3)(c) (c) Proposed department actions under s. ATCP 35.08 (5) (b) and (c).

ATCP 35.34(3)(d) (d) Other matters related to the administration of this rule.

ATCP 35.34 History History: Cr. Register, October, 2000, No. 538, eff. 11-1-00.