AB100: Bill Text Engrossed

AB100-engrossed,1802,18 (L) Awards for dry cleaning facilities on tribal trust lands. The owner or operator of a dry cleaning facility located on trust lands of an American Indian tribe may be eligible for an award under this section if the owner or operator otherwise satisfies the requirements of this subsection and complies with the rules promulgated under this section and any other rules promulgated by the department concerning dry cleaning facilities.

AB100-engrossed,1802,23 (5) Enhanced pollution prevention measures. (a) 1. The owner or operator of a dry cleaning facility on which construction begins after the effective date of this subdivision .... [revisor inserts date], is not eligible for an award under this section unless the owner or operator has implemented the enhanced pollution prevention measures described in par. (b).

AB100-engrossed,1803,5 2. The owner or operator of a dry cleaning facility on which construction began on or before the effective date of this subdivision .... [revisor inserts date], is ineligible for an award under this section with respect to a discharge that occurs on or after the 91st day after the day on which the department issues a case closure letter with respect to an earlier discharge of dry cleaning solvent from the dry cleaning facility, unless the owner or operator has implemented the enhanced pollution prevention measures described in par. (b).

AB100-engrossed,1803,7 (b) An owner or operator who is required to implement enhanced pollution prevention measures shall demonstrate all of the following:

AB100-engrossed,1803,10 1. That the owner or operator manages all wastes that are generated at the dry cleaning facility and that contain dry cleaning solvent as hazardous wastes in compliance with ch. 291 and 42 USC 6901 to 6991i.

AB100-engrossed,1803,13 2. That the dry cleaning facility does not discharge dry cleaning solvent or wastewater from dry cleaning machines into any sanitary sewer or septic tank or into the waters of this state.

AB100-engrossed,1803,18 3. That each machine or other piece of equipment in which dry cleaning solvent is used, or the entire area in which those machines or pieces of equipment are located, is surrounded by a containment dike or other containment structure that is able to contain any leak, spill or other release of dry cleaning solvent from the machines or other pieces of equipment.

AB100-engrossed,1803,20 4. That the floor within any area surrounded by a dike or other containment structure under subd. 3. is sealed or is otherwise impervious to dry cleaning solvent.

AB100-engrossed,1803,22 5. That all dry cleaning solvent is delivered to the dry cleaning facility by means of a closed, direct-coupled delivery system.

AB100-engrossed,1804,2 (6) Additional requirement for closed facilities. (a) To be eligible for an award under this section, the owner or operator of a dry cleaning facility that has ceased operating at the time that the owner or operator applies under sub. (8) (a) shall agree to pay all of the following each year for 30 years after the department issues the award:

AB100-engrossed,1804,4 1. An amount equal to the average annual license fee paid under s. 77.9961 (1) for that year.

AB100-engrossed,1804,6 2. 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.

AB100-engrossed,1804,9 (b) An owner or operator to whom par. (a) applies shall guarantee payment under par. (a) by executing a note and mortgage on the site of the dry cleaning facility and a payment bond acceptable to the department.

AB100-engrossed,1804,11 (c) All funds paid under this subsection shall be deposited in the dry cleaner environmental response fund.

AB100-engrossed,1804,14 (7) Eligible costs. (a) General. Subject to pars. (c), (ce), (cm) and (d), eligible costs for an award under this section include reasonable and necessary costs paid for the following items only:

AB100-engrossed,1804,15 1. Removal of dry cleaning solvents from surface waters, groundwater or soil.

AB100-engrossed,1804,17 2. Investigation and assessment of contamination caused by a dry cleaning solvent discharge from a dry cleaning facility.

AB100-engrossed,1804,18 3. Preparation of remedial action plans.

AB100-engrossed,1804,19 4. Removal of contaminated soils.

AB100-engrossed,1804,20 5. Soil and groundwater treatment and disposal.

AB100-engrossed,1804,21 6. Environmental monitoring.

AB100-engrossed,1804,22 7. Laboratory services.

AB100-engrossed,1804,24 8. Maintenance of equipment for dry cleaning solvent recovery performed as part of remedial action activities.

AB100-engrossed,1804,25 9. Restoration or replacement of a private or public potable water supply.

AB100-engrossed,1805,1 10. Restoration of environmental quality.

AB100-engrossed,1805,2 11. Contractor costs for remedial action activities.

AB100-engrossed,1805,3 12. Inspection and supervision.

AB100-engrossed,1805,6 13. Those costs of purchase and installation of interim remedial equipment that qualify for reimbursement under s. 292.66 for which reimbursement was not received under s. 292.66.

AB100-engrossed,1805,9 14. Other costs identified by the department as reasonable and necessary for proper investigation, remedial action planning and remedial action activities to meet the requirements of s. 292.11.

AB100-engrossed,1805,11 15. Compensation to 3rd parties for bodily injury and property damage caused by a dry cleaning solvent discharge from a dry cleaning facility.

AB100-engrossed,1805,13 16. Financing for eligible activities under this paragraph as provided in par. (b).

AB100-engrossed,1805,16 (b) Financing costs. 1. Except as provided in subd. 2., eligible costs for an award under this section include the following costs of financing activities eligible for reimbursement under par. (a):

AB100-engrossed,1805,17 a. Loan origination fees of up to 1% of the loan principal.

AB100-engrossed,1805,19 b. Interest on a loan at no more than the prime rate as determined under rules promulgated by the department.

AB100-engrossed,1805,22 2. Costs of financing activities that are undertaken after the effective date of this subdivision .... [revisor inserts date], and that are undertaken without the department's advance written approval are not eligible costs.

AB100-engrossed,1805,24 (c) Exclusions from eligible costs. Eligible costs for an award under this section do not include the following:

AB100-engrossed,1805,25 1. Costs incurred before January 1, 1991.

AB100-engrossed,1806,1 2. Costs of retrofitting or replacing dry cleaning equipment.

AB100-engrossed,1806,4 3. Other costs that the department determines to be associated with, but not integral to, the investigation and remediation of a dry cleaning solvent discharge from a dry cleaning facility.

AB100-engrossed,1806,8 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.

AB100-engrossed,1806,10 5. Costs for investigations or remedial action activities conducted outside this state.

AB100-engrossed,1806,13 (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.

AB100-engrossed,1806,23 (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.

AB100-engrossed,1807,2 (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.

AB100-engrossed,1807,13 (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:

AB100-engrossed,1807,14 1. A record of investigation results and data interpretation.

AB100-engrossed,1807,15 2. A remedial action plan.

AB100-engrossed,1807,17 3. Contracts for eligible costs incurred because of the discharge and records of the contract negotiations.

AB100-engrossed,1807,19 4. Accounts, invoices, sales receipts or other records documenting actual eligible costs incurred because of the discharge.

AB100-engrossed,1807,21 5. Other records and statements that the department determines to be necessary to complete the application.

AB100-engrossed,1807,23 (b) Acknowledgement. The department shall acknowledge, in writing, the receipt of an application under par. (a).

AB100-engrossed,1808,5 (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.

AB100-engrossed,1808,7 (d) Denial of applications. The department shall deny an application under this section if any of the following applies:

AB100-engrossed,1808,8 1. The application is not within the scope of this section.

AB100-engrossed,1808,9 2. The applicant submits a fraudulent application.

AB100-engrossed,1808,11 3. The applicant has been grossly negligent in the maintenance of the dry cleaning facility.

AB100-engrossed,1808,12 4. The applicant intentionally damaged the dry cleaning equipment.

AB100-engrossed,1808,13 5. The applicant falsified records.

AB100-engrossed,1808,15 6. The applicant willfully failed to comply with laws or rules of this state concerning the use or disposal of dry cleaning solvents.

AB100-engrossed,1808,17 7. The applicant has not paid all of the fees under ss. 77.9961, 77.9962 and 77.9963.

AB100-engrossed,1808,20 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.

AB100-engrossed,1808,24 (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:

AB100-engrossed,1808,25 a. If eligible costs are $200,000 or less, $10,000.

AB100-engrossed,1809,2 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.

AB100-engrossed,1809,4 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.

AB100-engrossed,1809,7 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:

AB100-engrossed,1809,8 a. Ten thousand dollars.

AB100-engrossed,1809,11 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.

AB100-engrossed,1809,15 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.

AB100-engrossed,1809,19 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.

AB100-engrossed,1809,22 (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.

AB100-engrossed,1809,24 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:

AB100-engrossed,1809,25 a. For an owner or operator of 10 or fewer dry cleaning facilities, $250,000.

AB100-engrossed,1810,1 b. For an owner or operator of more than 10 dry cleaning facilities, $500,000.

AB100-engrossed,1810,10 (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.

AB100-engrossed,1810,13 (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.

AB100-engrossed,1810,21 (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.

AB100-engrossed,1811,2 (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.

AB100-engrossed,1811,9 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.

AB100-engrossed,1811,11 3. The department shall promulgate a rule identifying the ineligible costs to which subds. 1. and 2. apply.

AB100-engrossed,1811,16 (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.

AB100-engrossed,1811,20 (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.

AB100-engrossed,1811,22 (c) Disposition of funds. The net proceeds of the recovery under par. (b) shall be paid into the dry cleaner environmental response fund.

AB100-engrossed,1812,3 (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.

AB100-engrossed,1812,6 (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.

AB100-engrossed,1812,11 (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.

AB100-engrossed,1812,20 (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 property 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.

AB100-engrossed,1812,23 (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.

AB100-engrossed,1813,3 (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.