(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.
(5) Prohibition. No person may advertise or otherwise hold himself or herself out to be a certified remediation professional unless that person possesses a valid certificate issued by the department.
(6) Exemption. Subsection (3) does not apply to a report prepared, or an activity performed, by an employe of this state acting within the scope of his or her employment.
(7) Departments may investigate. (a) Employes or agents of the department of natural resources, the department of commerce or the department of agriculture, trade and consumer protection may at any reasonable time enter any site or building for the purpose of investigating, sampling or inspecting any condition, equipment, practice or property relating to a covered activity conducted, supervised or directed by a certified remediation professional.
(b) Employes or agents of the department of natural resources, the department of commerce or the department of agriculture, trade and consumer protection may seek a special inspection warrant under s. 66.122 authorizing entry to a site or building under par. (a) if permission to enter is denied or if one of those departments determines that entry without prior notice is necessary to enforce this section.
(c) A certified remediation professional shall provide any information requested by the department of natural resources, the department of commerce or the department of agriculture, trade and consumer protection relating to his or her activities as a certified remediation professional. If one of those departments has reason to suspect that a violation of any statute or rule related to a covered activity has occurred or may occur, it may issue to a certified remediation professional an order requiring the production or analysis of samples, requiring the production of records or requiring any action by the certified remediation professional that may be necessary to prevent or eliminate the violation.
(8) Memorandum of understanding. The department of natural resources, the department of commerce and the department of agriculture, trade and consumer protection shall enter into a memorandum of understanding with respect to common areas of responsibility that relate to this section. A memorandum of understanding under this subsection does not take effect until it is approved by the secretary of administration.
(9) Appeals. Any person aggrieved by a determination or order of the department under this section may request a contested case hearing under ch. 227.
27,3730m
Section 3730m. 293.13 (1) (b) of the statutes is amended to read:
293.13 (1) (b) Establish by rule after consulting with the metallic mining council minimum qualifications for
applicants for prospecting and mining permits. Such minimum qualifications shall ensure that each operator in the state is competent to conduct mining and reclamation and each prospector in the state is competent to conduct prospecting in a fashion consistent with the purposes of this chapter. The department shall also consider such other relevant factors bearing upon minimum qualifications, including but not limited to, any past forfeitures of bonds posted pursuant to mining activities in any state.
27,3730p
Section 3730p. 293.13 (2) (a) of the statutes is amended to read:
293.13 (2) (a) The department by rule after consulting with the metallic mining council shall adopt minimum standards for exploration, prospecting, mining and reclamation to ensure that such activities in this state will be conducted in a manner consistent with the purposes and intent of this chapter. The minimum standards may classify exploration, prospecting and mining activities according to type of minerals involved and stage of progression in the operation.
27,3731
Section 3731
. 295.11 (4) of the statutes is amended to read:
295.11 (4) “Nonmetallic mining reclamation" means the rehabilitation of a nonmetallic mining site to achieve a land use specified in an approved nonmetallic mining reclamation plan, including removal or reuse of nonmetallic mining refuse, grading of the nonmetallic mining site, removal, storage and replacement of topsoil, stabilization of soil conditions, establishment reestablishment of vegetative cover, control of surface water and groundwater, prevention of environmental pollution, construction of fences where necessary and, if practical, restoration of plant, fish and wildlife habitat.
27,3732
Section 3732
. 295.11 (5) of the statutes is amended to read:
295.11 (5) “Nonmetallic mining refuse" means waste soil, rock, mineral, liquid and vegetation and other waste natural material resulting from nonmetallic mining. This term does not include merchantable marketable by-products resulting directly from or displaced by the nonmetallic mining.
27,3733
Section 3733
. 295.11 (6) (intro.), (a), (b), (c) and (d) of the statutes are renumbered 295.11 (6) (a) (intro.), 1., 2., 3. and 4., and 295.11 (6) (a) (intro.), 1. and 2., as renumbered, are amended to read:
295.11 (6) (a) (intro.) “Nonmetallic mining site" means all of the following, except as provided in par. (b):
1. The location where nonmetallic mining is proposed or conducted, including all surface areas from which materials have been or will be removed.
2. Storage and processing areas related to the
that are in or contiguous to areas excavated for nonmetallic mining.
27,3734
Section 3734
. 295.11 (6) (a) 5. of the statutes is created to read:
295.11 (6) (a) 5. Areas where grading or regrading is necessary to conduct nonmetallic mining or to achieve a land use specified in an approved nonmetallic mining reclamation plan.
27,3735
Section 3735
. 295.11 (6) (b) of the statutes is created to read:
295.11 (6) (b) “Nonmetallic mining site" does not include any area described in par. (a) 1. to 5. that is not used for nonmetallic mining or for purposes related to nonmetallic mining on or after the effective date of this paragraph .... [revisor inserts date].
27,3736
Section 3736
. 295.11 (6) (e) of the statutes is repealed.
27,3737
Section 3737
. 295.11 (9) of the statutes is amended to read:
295.11 (9) “Replacement of topsoil" means the replacement of the topsoil that was removed or disturbed by nonmetallic mining, or the provision of soil that is at least as adequate as material to substitute for the topsoil that was removed or disturbed, for the purposes of providing adequate vegetative cover and stabilization of soil conditions to achieve a land use specified in an approved nonmetallic mining reclamation plan.
27,3738
Section 3738
. 295.12 (1) (c) of the statutes is amended to read:
295.12 (1) (c) Uniform statewide standards requirements and procedures for the administration of a nonmetallic mining reclamation ordinance program by any county, city, village or town.
27,3739
Section 3739
. 295.12 (1) (d) of the statutes is repealed.
27,3740
Section 3740
. 295.12 (2) (a) of the statutes is amended to read:
295.12 (2) (a) The department shall establish nonmetallic mining reclamation standards under sub. (1) (a) that are applicable to activities related to nonmetallic mining reclamation both during nonmetallic mining and after the termination of nonmetallic mining.
27,3741
Section 3741
. 295.12 (2) (b) and (c) of the statutes are repealed.
27,3742
Section 3742
. 295.12 (2) (d) of the statutes is amended to read:
295.12 (2) (d) Standards for those portions of a nonmetallic mining site that are mined on or after the effective date of the ordinance Nonmetallic mining reclamation standards under sub. (1) (a) shall be designed to encourage the development and reclamation of nonmetallic mining sites in existence on the effective date of this paragraph .... [revisor inserts date], and shall include requirements necessary to achieve a land use specified in an approved nonmetallic mining reclamation plan, including requirements related to the removal or reuse of nonmetallic mining refuse, removal of roads no longer in use, stabilization of soil conditions, grading the nonmetallic mining site, replacement of topsoil, establishment of vegetative cover, control of surface water flow and groundwater withdrawal, prevention of environmental pollution, construction of fences where necessary and, if practical, protection or restoration of plant, fish and wildlife habitat.
27,3743
Section 3743
. 295.12 (2) (e) of the statutes is repealed.
27,3744
Section 3744
. 295.12 (3) (intro.) of the statutes is amended to read:
