"Contiguous land" means land included in the same parcel or an adjacent parcel. "Contiguous land" includes parcels that are separated only by a road, railway, or utility right-of-way, or by a government-owned land corridor or waterway not wider than 66 feet.
"Contractor" means a person who contracts to perform all or part of a corrective action. "Contractor" includes a consultant, general contractor or subcontractor who contracts to perform all or part of a corrective action, but does not include a responsible person or an employee of a responsible person.
"Contract services" means services provided by a contractor as part of a corrective action. "Contract services" includes all of the following services:
Drilling, including at-depth soil sampling and well installation.
"Corrective action" means an action, consisting of one or more corrective measures under sub. (12)
, that is taken or ordered in response to a discharge in this state, and that is necessary to restore the environment to the extent practicable and to minimize the harmful effects of the discharge to the air, lands or waters of this state. "Corrective action" includes an action taken or ordered by the department of natural resources under s. 292.11 (7)
, Stats., in response to a discharge, but does not include an action ordered by the department of natural resources under s. 291.37 (2)
, Stats. "Corrective action" does not include any action taken or required to be taken before January 1, 1989.
"Corrective action costs" means reasonable costs that a responsible person has actually incurred for a necessary corrective action.
Investigation to determine the extent and severity of environmental contamination caused by a discharge, including sampling and analysis of soils, groundwater or other media.
Containment, removal, treatment or monitoring of environmental contamination caused by a discharge.
Transportation, storage, land application or disposal of materials contaminated by a discharge.
Other corrective measures approved or ordered by the department.
"Department" means the state of Wisconsin department of agriculture, trade and consumer protection.
ATCP 35.01 Note
Under s. 292.01 (3)
, Stats., "discharge" includes, but is not limited to, spilling, leaking, pumping, pouring, emptying, emitting or dumping.
"Discharge site" means the area affected by one or more discharges. "Discharge site" includes all contiguous land that is owned, leased or controlled by the responsible person at the time the discharge occurs, plus any other area affected by the discharge.
"Eligible corrective action costs" means costs on which the department is authorized to pay reimbursement under this chapter.
"Fiscal year" means the state fiscal year ending June 30.
Facilities for the transmission of telecommunications or television services, including wires, optics, cables, poles and towers.
"General contractor" means a consultant or other contractor who, on behalf of a responsible person, secures or directs the services of other contractors related to a corrective action. "General contractor" includes a person who solicits or receives contract bids, prepares contracts, directs corrective measures performed by others, or enters into contracts with subcontractors to perform corrective measures.
"Household pesticide" means a pesticide that is any of the following:
An insect repellant that is applied to the human body or to clothing.
A pesticide that is used exclusively for the treatment of household pets.
A pesticide product that is labeled exclusively for household, lawn or garden use if the product either is sold in ready-to-use form or is sold exclusively in container sizes of less than one gallon.
A solid or liquid pesticide product that is used exclusively for the treatment of swimming pools, spas or hot tubs.
"Indirect cost" means any general cost of doing business that cannot be directly and exclusively attributed to a corrective action. "Indirect cost" includes costs for equipment, supplies, services, real estate, structures and improvements, overhead, managerial and staff support, staff training, taxes, insurance, financing and other items which are not directly and exclusively attributable to a corrective action or whose use is not limited to the corrective action.
"Industrial pesticide" means any of the following pesticides that is not a household pesticide:
A pesticide that is solely labeled for use on wood and contains pentachlorophenol, coal tar creosote or inorganic arsenical wood preservatives.
A pesticide that is labeled for use in controlling algae, fungi, bacteria, other microscopic organisms or mollusks in or on one or more of the following, and is labeled for no other use except a use described in sub. (19) (f)
Textiles, paper, leather, plastic, vinyl or other synthetic materials, metal or rubber.
Commercial, construction, manufacturing or industrial fluids, including adhesives, additives and pigments.
Commercial, construction, manufacturing or industrial processes, equipment, devices or containers, other than those used in the production or storage of human food or animal feed.
"Laboratory services" means laboratory analysis and activities that are incidental to laboratory analysis.
"Landspread" means to spread or deposit on land, other than in a landfill approved by the department of natural resources under s. 289.31
, Stats., soil or water removed from a discharge site.
"Nonhousehold pesticide" means a pesticide that is not a household pesticide or industrial pesticide.
"Responsible person" means any of the following persons, or that person's successor in interest:
A person who owns or controls an agricultural chemical that is discharged.
A person on whose property an agricultural chemical is discharged.
ATCP 35.01 History
Cr. Register, August, 1994, No. 464
, eff. 9-1-94; am. (1), (3), (6), (10), (14), (15) and (20), cr. (7m), (20m), (22m) and (22r), r. and recr. (9) and (19), Register, September, 1998, No. 513
, eff. 10-1-98; am. (4), cr. (17m), Register, October, 2000, No. 538
, eff. 11-1-00.
The department may issue an order requiring a responsible person to take a corrective action. An order under this subsection shall include all of the following:
A description of the property on which the responsible person is required to take corrective action.
A description of the corrective action which the responsible person is required to take.
A date by which the responsible person is required to complete the corrective action.
Notice that the corrective action is required to comply with the following:
ATCP 35.02 Note
For corrective actions under this chapter, the department is authorized to review compliance with chs. NR 700
, and 712
, and to grant required approvals and variances under those chapters on behalf of the department of natural resources.
The department may issue an order under sub. (1)
on a summary basis, without prior notice or hearing, if the department determines that a summary order is necessary to prevent imminent harm to public health or safety or to the environment.
If the recipient of a summary order under par. (a)
requests a hearing on that order, the department shall hold an informal hearing within 10 days after the department receives the hearing request unless the recipient of the order consents to a later date for the informal hearing. If a contested matter is not resolved at the informal hearing, the recipient of the order is entitled to a class 2 contested case hearing under ch. 227, Stats.
, and ch. ATCP 1
The department is not required to stay a summary order issued under par. (a)
pending the outcome of a hearing under par. (b)
. If, after a hearing under par. (b)
, the department determines that a summary order under par. (a)
was not justified, the department shall reimburse the recipient of the order for reasonable corrective action costs necessarily incurred by the recipient to comply with the unjustified order.
ATCP 35.02 Note
See ch. ATCP 1
for procedure related to administrative orders and contested cases. Under s. 94.73 (13)
, Stats., a person who violates a corrective action order issued by the department under this section is subject to a civil forfeiture of not less than $10 nor more than $5,000 for each violation. Each day of continued violation is a separate offense.
ATCP 35.02 History
Cr. Register, August, 1994, No. 464
, eff. 9-1-94; am. (1) (e) 1., 2., (2) (b) and (c), Register, September, 1998, No. 513
, eff. 10-1-98.
No person may landspread soil that is removed from a discharge site, and contains an agricultural chemical, unless the department issues to that person a permit authorizing that landspreading. Landspreading shall comply with conditions that the department specifies in the permit.
An individual who landspreads soil containing a pesticide is deemed, for purposes of licensing and certification under ss. ATCP 29.25
, to be applying that pesticide.
ATCP 35.03 Note
Note: Landspreading is a potential method for destroying or recycling agricultural chemicals removed from a discharge site as part of a corrective action. The department may approve landspreading which applies agricultural chemicals at rates that are comparable to normal agronomic practice.
No person may landspread water that is removed from a discharge site, and is contaminated with an agricultural chemical, unless all of the following apply:
The department issues to that person a permit authorizing that landspreading.
The department of natural resources issues to that person a pollution discharge elimination system permit, if required under ch. 283, Stats.
, which authorizes that landspreading.
The landspreading complies with conditions specified by the department and the department of natural resources under pars. (a)