4. Costs
, other than costs for compensating 3rd parties for bodily injury and property damage, that the department determines to be unreasonable or unnecessary to carry out the remedial action activities as specified in the remedial action plan.
5. Costs for investigations or remedial action activities conducted outside this state.
(ce) Usual and customary costs. The department may establish a schedule of usual and customary costs for any items under par. (a) and may use that schedule to determine the amount of an applicant's eligible costs.
(cm) Eligible cost; service providers. The department may promulgate rules under which the department selects service providers to provide investigation or remedial action services in specified areas. The rules may provide that the costs of a service for which the department has selected a service provider in an area are not eligible costs under par. (a), or that eligible costs are limited to the amount that the selected service provider would have charged, if an owner or operator of a dry cleaning facility located in that area uses a service provider other than the service provider selected by the department to perform the services. If the department selects service providers under this paragraph, it shall regularly update the list of service providers that it selects.
(d) Discharges from multiple activities. If hazardous substances are discharged at a dry cleaning facility as a result of dry cleaning operations and as a result of other activities, eligible costs under this section are limited to activities necessitated by the discharge of dry cleaning solvent.
(8) Awards. (a) Application. An owner or operator shall submit an application on a form provided by the department. An owner or operator may not submit an application before September 1, 1998. An owner or operator may not submit an application after August 30, 2003, if the application relates to a dry cleaning facility that ceased to operate before September 1, 1998. An owner or operator may not submit an application after August 20, 2008, if the application relates to any other dry cleaning facility. The department shall authorize owners and operators to apply for awards at stages in the process under sub. (4) that the department specifies by rule. An application shall include all of the following documentation of activities, plans and expenditures associated with the eligible costs incurred because of a dry cleaning solvent discharge from a dry cleaning facility:
1. A record of investigation results and data interpretation.
2. A remedial action plan.
3. Contracts for eligible costs incurred because of the discharge and records of the contract negotiations.
4. Accounts, invoices, sales receipts or other records documenting actual eligible costs incurred because of the discharge.
5. Other records and statements that the department determines to be necessary to complete the application.
(b) Acknowledgement. The department shall acknowledge, in writing, the receipt of an application under par. (a).
(c) Approval. Subject to par. (d), if the department finds that an applicant meets the requirements of this section and rules promulgated under this section, the department shall make an award as provided in this subsection to reimburse the applicant for eligible costs paid. The department may not make an award for an investigation before it approves the investigation. The department may not make an award for remedial action activities before it approves the remedial action activities.
(d) Denial of applications. The department shall deny an application under this section if any of the following applies:
1. The application is not within the scope of this section.
2. The applicant submits a fraudulent application.
3. The applicant has been grossly negligent in the maintenance of the dry cleaning facility.
4. The applicant intentionally damaged the dry cleaning equipment.
5. The applicant falsified records.
6. The applicant willfully failed to comply with laws or rules of this state concerning the use or disposal of dry cleaning solvents.
7. The applicant has not paid all of the fees under ss. 77.9961, 77.9962 and 77.9963.
8. The dry cleaning solvent discharge was caused by a person who provided services or products to the owner or operator or to a prior owner or operator of the dry cleaning facility.
(e) Deductible. 1. The department may reimburse the owner or operator of a dry cleaning facility that is operating at the time that the owner or operator applies under par. (a) only for eligible costs incurred at each dry cleaning facility that exceed the following deductible:
a. If eligible costs are $200,000 or less, $10,000.
b. If eligible costs exceed $200,000 but do not exceed $400,000, $10,000 plus 8% of the amount by which eligible costs exceed $200,000.
c. If eligible costs exceed $400,000, $26,000 plus 10% of the amount by which eligible costs exceed $400,000
, but the maximum deductible is $46,000.
3. The department may reimburse the owner or operator of a dry cleaning facility that has ceased operation before the owner or operator applies under par. (a) only for eligible costs that exceed the sum of the following:
a. Ten thousand dollars.
b. For each year in which the owner or operator has not paid the annual license fee under s. 77.9961 (1) for the dry cleaning facility, an amount equal to the average annual license fee paid under s. 77.9961 (1) for that year.
c. For each year in which the dry cleaning solvents fee under s. 77.9962 was imposed and the dry cleaning facility was not in operation, an amount equal to the total amount collected under s. 77.9962 for that year divided by the number of dry cleaning facilities in operation during that year.
d. If the owner or operator did not pay the inventory fee under s. 77.9963 with respect to the dry cleaning facility, an amount equal to the total amount collected under s. 77.9963 divided by the number of dry cleaning facilities paying the inventory fee.
(f) Maximum awards.
1. The department may not issue financial assistance under this section that exceeds $600,000 for reimbursement for costs incurred at a single dry cleaning facility.
2. The department may not issue financial assistance under this section to an owner or operator in one program year that totals more than the following:
a. For an owner or operator of 10 or fewer dry cleaning facilities, $250,000.
b. For an owner or operator of more than 10 dry cleaning facilities, $500,000.
(g) Waiver of deductible. Notwithstanding par. (e), the department may waive the requirement that an owner or operator pay the deductible amount if the department determines that the owner or operator is unable to pay. If the department waives the requirement that an owner or operator pay the deductible, the department shall record a statement of lien with the register of deeds of the county in which the dry cleaning facility is located. If the department records the statement of lien, the department has a lien on the property on which the dry cleaning facility is located in the amount of the deductible that was waived. The property remains subject to the lien until that amount is paid in full.
(h) Contributory negligence. The department may not diminish or deny an award under this section as a result of negligence attributable to the applicant or any person who is entitled to submit an application, except as provided in par. (d) 3.
(i) Assignment of awards. The filing by an applicant with the department of an assignment of an award under this section to a person who loans money to the applicant for the purpose of conducting activities required under sub. (4) creates and perfects a lien in favor of the assignee in the proceeds of the award. The lien secures all principal, interest, fees, costs and expenses of the assignee related to the loan. The lien under this paragraph has priority over any previously existing or subsequently created lien, assignment, security interest or other interest in the proceeds of the award.
(j) Reduction of awards. 1. If an owner or operator prepares and submits an application that includes ineligible costs that are identified under subd. 3., the department shall calculate the award by determining the amount that the award would otherwise be under pars. (e) and (f) based only on the eligible costs and then by reducing that amount by 50% of the ineligible costs under subd. 2. that are included in the application.
2. If a consultant prepares an application that is submitted by an owner or operator and that includes ineligible costs that are identified under subd. 3., the consultant shall pay to the department an amount equal to 50% of the ineligible costs identified under subd. 3. that are included in the application. A consultant may not charge the owner or operator for any amount that the consultant is required to pay under this subdivision. Payments made under this subdivision shall be deposited in the dry cleaner environmental response fund.
3. The department shall promulgate a rule identifying the ineligible costs to which subds. 1. and 2. apply.
(9) Recovery of awards. (a)
Right of action. A right of action under this section shall accrue to the state against an owner or operator only if the owner or operator submits a fraudulent application or does not meet the requirements under this section and if an award is issued under this section to the owner or operator for eligible costs under this section.
(b) Action to recover awards. The attorney general shall take appropriate actions to recover awards to which the state is entitled under par. (a). The department shall request that the attorney general take action if the department discovers a fraudulent application after an award is issued.
(c) Disposition of funds. The net proceeds of the recovery under par. (b) shall be paid into the dry cleaner environmental response fund.
(10) Liability. (a) No common law liability, and no statutory liability that is provided in a statute other than this section, for damages resulting from a dry cleaning facility is affected by this section. Except as provided in par. (b), the authority, power and remedies provided in this section are in addition to any authority, power or remedy provided in any statute other than this section or provided at common law.
(b) An award under this section is the exclusive method for the recovery of the amount of eligible costs equal to the amount of the award that may be issued under this section.
(c) If a person conducts a remedial action activity for a discharge at a dry cleaning facility site, whether or not the person files an application under this section, the remedial action activity conducted and any application filed under this section are not evidence of liability or an admission of liability for any potential or actual environmental pollution.
(11) Intervention in 3rd-party actions. An owner or operator of a dry cleaning facility shall notify the department of any action by a 3rd party against the owner or operator for compensation for bodily injury or proper
ty damage caused by a dry cleaning solvent discharge from the dry cleaning facility if the owner or operator may be eligible for an award under this section. The department may intervene in any action by a 3rd party against an owner or operator for compensation for bodily injury or property damage caused by a dry cleaning solvent discharge from a dry cleaning facility if the owner or operator may be eligible for an award under this section for compensation awarded in the action.
(12) Records. (a) The department shall promulgate rules prescribing requirements for the records to be maintained by an owner, operator or service provider and the periods for which they must retain those records.
(b) The department may inspect any document in the possession of an owner, operator or service provider or any other person if the document is relevant to an application for reimbursement under this section.
(13) Council. The dry cleaner environmental response council shall advise the department concerning the programs under this section and s. 292.66. The dry cleaner environmental response council shall evaluate the program under this section at least every 5 years, using criteria developed by the council.
(14) Sunset. This section does not apply after June 30, 2032.
27,3721m
Section 3721m. 292.66 of the statutes is created to read:
292.66 Assistance for purchase and installation of interim remedial equipment at dry cleaning facilities. (1) The department shall allocate 46% of the funds appropriated under s. 20.370 (6) (eq) in each fiscal year for awards to reimburse owners and operators for costs of preliminary site screening and the purchase and installation of equipment to begin the cleanup of discharges of dry cleaning solvent from dry cleaning facilities before the completion of full site investigations and remedial action plans. The department may not make an award under this section before September 1, 1998, or after June 30, 2002.
(2) The owner or operator of a dry cleaning facility is eligible for an award under this section if all of the following apply:
(a) The owner or operator reports the dry cleaning solvent discharge to the department in a timely manner, as provided in s. 292.11.
(b) The owner or operator conducts a preliminary site screening, including an onsite mobile laboratory analysis of any soil and groundwater affected by the discharge to determine the location for installation of the interim remedial equipment.
(c) Immediate action is not necessary at the affected dry cleaning facility.
(d) The owner or operator installs equipment that is approved by the department to begin the cleanup of the discharge of dry cleaning solvent.
(e) The dry cleaning facility is operating at the time that the owner or operator applies for assistance under this section.
(f) The owner or operator submits an application for reimbursement in a form and manner specified by the department and complies with any inspection requirements established by the department.
(3) An award under this section may not exceed $15,000, of which not more than $2,500 may be for the cost of conducting the preliminary site screening.
(4) The department may promulgate rules for determining the usual and customary costs for items for which it may make awards under this section and may use the rules to determine the amount of an applicant's eligible costs.
(5) (a) Notwithstanding s. 292.11 (3) and (7), if an owner or operator applies and is eligible under sub. (2) for an award under this section and also applies for an award under s. 292.65, the owner or operator and any person who caused the discharge of dry cleaning solvent is not required to conduct a site investigation or proceed with other remedial action until the department informs the owner or operator that funding is available for an award to the owner or operator under s. 292.65.
(b) Paragraph (a) does not apply if the department determines that immediate action is necessary because of the discharge of dry cleaning solvent.
27,3723
Section 3723
. 292.81 (2) (a) (intro.) of the statutes is amended to read:
292.81 (2) (a) (intro.) Before incurring expenses under s. 292.11, or 292.31 (1), (3) or (7) or 292.41 (4) with respect to a property, the department shall provide to the current owner of the property and to any mortgagees of record a notice containing all of the following:
27,3724
Section 3724
. 292.81 (2) (a) 1. of the statutes is amended to read:
292.81 (2) (a) 1. A brief description of the property for which the department expects to incur expenses under s. 292.11, or 292.31 (1), (3) or (7) or 292.41 (4).
27,3725
Section 3725
. 292.81 (2) (a) 2. of the statutes is amended to read:
292.81 (2) (a) 2. A brief description of the types of activities that the department expects may be conducted at the property under s. 292.11, or 292.31 (1), (3) or (7) or 292.41 (4).
27,3726
Section 3726
. 292.81 (2) (d) of the statutes is amended to read:
292.81 (2) (d) No notice under this subsection is necessary in circumstances in which entry onto the property without prior notice is authorized under s. 292.11 (8) or under s. 292.41 (5).
27,3727
Section 3727
. 292.81 (3) of the statutes is amended to read:
292.81 (3) Any expenditures made by the department under s. 292.11 or 292.31 (1), (3) or (7) or, subject to s. 292.41 (6) (d), under s. 292.41 (4) shall constitute a lien upon the property for which expenses are incurred if the department files the lien with the register of deeds in the county in which the property is located. A lien under this section shall be superior to all other liens that are or have been filed against the property, except that if the property is residential property, as defined in s. 895.52 (1) (i), the lien may not affect any valid prior lien on that residential property.
27,3727g
Section 3727g. 292.85 of the statutes is created to read:
292.85 Certified remediation professionals. (1) Definitions. In this section:
(a) “Certificate" means a remediation professional certificate issued under this section.
(b) “Covered activity" means corrective action under s. 94.73, petroleum storage tank remedial action under s. 101.143 or 101.144, hazardous waste facility closure under s. 291.29, corrective action under s. 291.37, a response to a discharge of a hazardous substance under s. 292.11, remedial action under s. 292.15 (2), an environmental assessment under s. 292.21 (1) (c) 2., environmental repair under s. 292.31 (3), an abandoned container response under s. 292.41 or any other environmental remedial action specified by the department by rule, except that “covered activity" does not include an emergency response under s. 292.11, 292.31 (3) or 292.41.
(c) “Report" means a report of a site investigation, a report of interim actions prior to remedial action, a report of the design of a proposed remedial action plan, a report of a site closure or any other report designated by the department of natural resources, the department of commerce or the department of agriculture, trade and consumer protection by rule.
(2) Rules. The department shall promulgate rules necessary to implement this section. The department shall develop the rules in consultation with all state agencies that have oversight responsibility for programs related to environmental remediation and with other interested persons. The rules shall include requirements for education, continuing education, training, experience and standards of professional conduct for certified remediation professionals. The requirements and standards shall be sufficiently stringent so that covered activities conducted by or under the direction or supervision of a certified remediation professional and all reports related to covered activities that are prepared by or under the direction or supervision of certified remediation professionals are rendered in a manner that protects public health, safety, welfare and the environment and that is consistent with applicable statutes and rules.
(3) Certificate required for certain activities. (a) Beginning on the effective date of this paragraph .... [revisor inserts date], a person may not submit a report to the department of natural resources, the department of commerce or the department of agriculture, trade and consumer protection with respect to a covered activity
unless the report is prepared by, or under the direction or supervision of, a certified remediation professional, except as provided in sub. (6).
(b) Beginning on the effective date of this paragraph .... [revisor inserts date], a person may not conduct a covered activity unless the person is, or is under the direction or supervision of, a certified remediation professional, except as provided in sub. (6).
(4) Department may certify. (a) An individual may apply for a remediation professional certificate. Each application for an initial or renewal certificate shall be accompanied by a fee in an amount established by the department by rule that is sufficient to cover all costs of administering and enforcing this section.
(b) The department may issue a certificate under this section only to an individual. A certificate issued under this section may not be transferred.
(c) The department shall periodically publish notice of each application for a certificate, approval or denial of a certificate, revocation of a certificate and termination of a certificate. The department may not approve an application for an initial certificate or a renewal certificate until at least 30 days after the notice of application for the initial certificate or renewal certificate has been published. The department shall promulgate rules for the periodic publication of notice under this paragraph.
(d) The department of natural resources may grant an initial certificate or renew a certificate only if the department of natural resources determines that the applicant or the holder of the certificate is in compliance with all requirements under this section and under rules promulgated by the department of natural resources, the department of commerce and the department of agriculture, trade and consumer protection. The department of natural resources shall suspend or revoke a certificate if it determines, or the department of commerce or the department of agriculture, trade or consumer protection determines, that the individual holding the certificate fails to comply with all requirements under this section and under rules promulgated by the department of natural resources, the department of commerce and the department of agriculture, trade and consumer protection.
(e) The department may bar an individual whose application for an initial certificate or a renewal certificate is denied, or whose certificate is revoked, from applying for a certificate for a period determined by the department. If the department revokes a certificate, it may permanently bar the individual from applying for a certificate.
(f) A certified remediation professional shall obtain and maintain insurance against loss, expense and liability, including loss, expense and liability caused by pollution, resulting from errors, omissions or neglect in the performance of any professional service in an amount of at least $1,000,000 per claim and $1,000,000 in annual aggregate claims, with a deductible of no more than $100,000 per claim.
