94.73(2)(bg)1.
1. Investigation to determine the extent and severity of environmental contamination caused by the discharge.
94.73(2)(bg)2.
2. Containment, removal, treatment or monitoring of environmental contamination caused by the discharge if the containment, removal, treatment or monitoring complies with
chs. 281 to
285 and
289 to
299, except
s. 281.48.
94.73(2)(bg)3.
3. Transportation, storage, land application or disposal of contaminated materials, in compliance with
chs. 281 to
285 and
289 to
299, except
s. 281.48.
94.73(2)(c)
(c) The department may issue an order under
par. (a) on a summary basis without prior notice or a prior 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 requests a hearing on that order, the department shall hold a hearing within 10 days after it receives the request unless the recipient agrees to a later hearing date. The department is not required to stay enforcement of a summary order issued under this paragraph pending the outcome of the hearing. If the responsible person prevails after a hearing, the department shall reimburse the responsible person from the appropriation under
s. 20.115 (7) (e) or
(w) for the corrective action costs incurred as the result of the department's order.
94.73(2)(d)
(d) Soil or water removed from a discharge site as part of a corrective action may only be spread on land if that spreading on land is in compliance with
chs. 281 to
285 and
289 to
299, except
s. 281.48, and if the department has given its written authorization.
94.73(2m)
(2m) Corrective action ordered by the department of natural resources. The department of natural resources may take action under
s. 292.11 (7) (a) or may issue an order under
s. 292.11 (7) (c) in response to a discharge only if one or more of the following apply:
94.73(2m)(a)
(a) The action or order is necessary in an emergency to prevent or mitigate an imminent hazard to public health, safety or welfare or to the environment.
94.73(2m)(b)
(b) The department of agriculture, trade and consumer protection requests the department of natural resources to take the action or issue the order.
94.73(2m)(c)
(c) The secretary of natural resources approves the action or order in advance after notice to the secretary of agriculture, trade and consumer protection.
94.73(2m)(d)
(d) The department of natural resources takes action under
s. 292.11 (7) (a) after the responsible person fails to comply with an order that was issued under
s. 292.11 (7) (c) in compliance with this subsection.
94.73(2m)(e)
(e) The department of natural resources takes the action or issues the order in compliance with a memorandum of understanding under
sub. (12) between the department of agriculture, trade and consumer protection and the department of natural resources.
94.73(3)
(3) Eligibility for reimbursement. A responsible person who takes corrective action may apply to the department for reimbursement of corrective action costs. Except as provided in
sub. (3m), an applicant is eligible for reimbursement if all of the following conditions are met:
94.73(3)(a)
(a) The applicant submits an application that complies with
sub. (5).
94.73(3)(b)
(b) The department finds that the corrective action costs incurred by the applicant are reasonable and the corrective action taken is necessary.
94.73(3)(c)
(c) The applicant demonstrates, to the department's satisfaction, that the corrective action costs are not covered by insurance and have not been reimbursed from other sources.
94.73(3)(d)
(d) The applicant has complied with every corrective action order issued to the applicant by the department under
sub. (2) or the department of natural resources under
s. 292.11 (7) (c).
94.73(3)(f)
(f) The applicant, upon discovery of the discharge, promptly reported the discharge to the department or, if the applicant was required to report the discharge under
s. 292.11 (2), to the department of natural resources.
94.73(3)(g)
(g) If the discharge occurred at a pesticide mixing and loading site owned or operated by the applicant, the applicant has fully complied with rules promulgated by the department under
sub. (11) (d) requiring registration of pesticide mixing and loading sites.
94.73(3)(h)
(h) If the applicant was required to submit a work plan under
sub. (4), the corrective action taken by the applicant was in accordance with a work plan approved by the department.
94.73(3m)
(3m) Costs not eligible for reimbursement. An applicant under
sub. (3) is not eligible for reimbursement of any of the following costs:
94.73(3m)(a)
(a) Costs for corrective action taken in response to a discharge that is an intentional use of an agricultural chemical for agricultural purposes, unless the corrective action is ordered by the department under
sub. (2) or by the department of natural resources under
s. 292.11 (7) (c).
94.73(3m)(c)
(c) Costs for corrective action that a pesticide manufacturer or labeler takes in response to a discharge by that pesticide manufacturer or labeler.
94.73(3m)(d)
(d) Costs for corrective action taken in response to a discharge that occurs while the agricultural chemical is being held or transported by a common carrier.
94.73(3m)(e)
(e) Costs for corrective action taken in response to a discharge from a facility that is required to be licensed under
s. 289.31 or that would be required to be licensed except that the department of natural resources has issued a specific exemption under
s. 289.43 or rules promulgated under
s. 289.05 (1) or
(2).
94.73(3m)(f)
(f) The cost of an activity that the department determines does not contribute to cleaning up a discharge.
94.73(3m)(g)
(g) A cost related to the repair, replacement or upgrading of a facility, structure or equipment, except that, if a responsible person who applies for reimbursement demonstrates to the department's satisfaction that the removal of an existing structure is the least expensive corrective action alternative, the department may reimburse the responsible person the depreciated value of the structure as determined by the department by rule.
94.73(3m)(j)
(j) Costs of permanent relocation of residents.
94.73(3m)(L)
(L) The cost of a responsible person's time spent in planning and implementing the corrective action.
94.73(3m)(m)
(m) Costs incurred for the review of corrective action work plans.
94.73(3m)(o)
(o) The cost of corrective action that is not in compliance with federal, state or local safety codes.
94.73(3m)(p)
(p) A cost payable under an insurance or other contract.
94.73(3m)(q)
(q) The cost of replacing discharged agricultural chemicals.
94.73(3m)(r)
(r) The cost of providing alternative sources of drinking water, except that, subject to
sub. (6) (b) to
(e), the department may reimburse a responsible person who applies for reimbursement a total of not more than $20,000 for the replacement of private wells if the department or the department of natural resources orders the well replacement in response to a discharge.
94.73(3m)(t)
(t) Costs incurred by any federal, state or local governmental entity.
94.73(3m)(u)
(u) Corrective action costs incurred by a responsible person in response to a discharge caused by that responsible person's intentional or grossly negligent violation of law, including
ss. 94.645 or
94.67 to
94.71, a rule promulgated under those sections or an order issued under those sections.
94.73(3m)(v)
(v) Other costs excluded by the department by rule.
94.73(4)(a)(a) Except as provided in
par. (d), no responsible person may receive reimbursement for corrective action costs exceeding $20,000 unless the responsible person submits to the department in writing, and the department approves, a work plan for the corrective action before the corrective action is taken.
94.73(4)(b)
(b) Except as agreed under
sub. (12), the department of agriculture, trade and consumer protection shall promptly furnish the department of natural resources with a copy of each work plan submitted to the department of agriculture, trade and consumer protection under
par. (a) for comment by the department of natural resources. Within 14 days after it receives a copy of a work plan or within a different time period agreed to under
sub. (12), the department of natural resources may provide the department of agriculture, trade and consumer protection with any comments of the department of natural resources on the work plan. If the department of natural resources timely submits written comments on a proposed work plan, the department of agriculture, trade and consumer protection shall either incorporate those comments into the approved work plan or give the department of natural resources a written explanation of why the comments were not incorporated.
94.73(4)(c)
(c) The department shall approve or reject a work plan submitted under
par. (a) within 30 days after its submission. If the department fails to approve or reject the work plan within 30 days after its submission, the work plan approval requirement in
par. (a) no longer applies.
94.73(4)(d)
(d) This subsection does not apply to any of the following:
94.73(4)(d)1.
1. A reasonable and necessary corrective action taken on an emergency basis.
94.73(4)(d)2.
2. A corrective action taken before August 12, 1993.
94.73(5)(a)(a) A responsible person who seeks reimbursement for corrective action costs shall submit an application to the department. The application shall be made on a form provided, and shall contain information reasonably required, by the department.
94.73(5)(b)
(b) A responsible person may not submit more than one application under
par. (a) within a 12-month period for the same discharge site.
94.73(5)(c)
(c) Within 10 days from the date of the receipt of an application under
par. (a), the department shall notify the applicant of the receipt of the application. The department shall grant or deny the application within 90 days after receipt of the application unless the applicant agrees to an extension.
94.73(5)(d)
(d) Before or after the department receives an application under
par. (a), the department may issue a preliminary opinion on whether an applicant is eligible for reimbursement of corrective action costs. The opinion is not binding on the department.
94.73(5)(e)
(e) No person may make a false statement or misrepresentation on an application submitted under this section. A person who makes a false statement or misrepresentation on an application related to a corrective action is ineligible for reimbursement related to that corrective action and is ineligible for any reimbursement related to any other corrective action taken or ordered within 5 years after the date of the false statement or misrepresentation. If the responsible person has received any reimbursement for which the responsible person is ineligible under this paragraph, the responsible person shall refund the full amount of that reimbursement to the department. The amounts refunded to the department under this paragraph shall be deposited in the agrichemical management fund.
94.73(6)(a)(a) If the department determines that a responsible person is eligible for reimbursement of corrective action costs under
sub. (3), the department shall authorize reimbursement in the amount specified in this subsection and in the manner provided in
sub. (7).
94.73(6)(am)
(am) If more than one responsible person is eligible for reimbursement under
sub. (3) for corrective action taken in response to one or more discharges at the same site, the combined amount paid to those responsible persons may not exceed the maximum amount specified for a single responsible person under this section, except as provided by the department by rule. The department shall allocate payments among the responsible persons according to rules promulgated by the department.
94.73(6)(b)
(b) Except as provided in
par. (d), if the department has not previously reimbursed any responsible person for corrective action costs for the discharge site for which reimbursement is sought, the department shall reimburse the responsible person in the following amounts:
94.73(6)(b)1.
1. An amount equal to 75% of the corrective action costs that exceed $7,500 for a person required to be licensed under
ss. 94.64 to
94.71 or that exceed $3,000 for any other person but that do not exceed $100,000.
94.73(6)(b)2.
2. If the corrective action includes groundwater remediation ordered by the department under
sub. (2) or by the department of natural resources under
s. 292.11 (7) (c), 80% of the corrective action costs that exceed $100,000 but that do not exceed $300,000.
94.73(6)(c)
(c) Except as provided in
par. (e), if the department has previously reimbursed any responsible person for corrective action costs for the discharge site for which reimbursement is sought, the department shall reimburse the responsible person an amount equal to 50% of the corrective action costs that exceed $15,000 but that do not exceed $100,000, except that if the corrective action includes groundwater remediation ordered by the department under
sub. (2) or by the department of natural resources under
s. 292.11 (7) (c) the department shall reimburse the responsible person an amount equal to 50% of the corrective action costs that exceed $15,000 but that do not exceed $300,000.
94.73(6)(d)
(d) If the corrective action is related to a discharge that occurred in the course of transporting an agricultural chemical, the reimbursement under
par. (b) is limited to 75% of the corrective action costs that exceed $7,500 for a person required to be licensed under
ss. 94.64 to
94.71 or that exceed $3,000 for any other person but that do not exceed $50,000.
94.73(6)(e)
(e) If the corrective action is related to a discharge that occurred in the course of transporting an agricultural chemical, the reimbursement under
par. (c) is limited to 50% of the corrective action costs that exceed $15,000 but that do not exceed $50,000.
94.73(7)(a)(a) Beginning on August 1, 1994, the department may, in accordance with this subsection, make payments to responsible persons who are eligible for reimbursement under
sub. (3) and for whom the department has authorized reimbursement under
sub. (6). The department shall make payments from the appropriations under
s. 20.115 (7) (e) and
(w), subject to the availability of funds in those appropriations.
94.73(7)(b)
(b) For costs incurred after January 1, 1989, the department may make an initial payment of not more than $50,000, or the amount authorized under
sub. (6), whichever is less, to each eligible responsible person. The department shall make payments to eligible responsible persons from the appropriations under
s. 20.115 (7) (e) and
(w). If there are insufficient funds in the appropriations under
s. 20.115 (7) (e) and
(w) to pay the amounts specified under this paragraph, the department shall distribute the available funds according to rules promulgated by the department. Before distributing any funds, the department shall promulgate rules establishing distribution priorities or formulas based on the severity of the contamination, the time elapsed since the corrective action costs were incurred or other criteria that the department considers appropriate.
94.73(7)(c)1.1. Except as provided in
subd. 2. and
par. (d), if the department authorizes reimbursement to an eligible responsible person under
sub. (6) in an amount that exceeds the initial payment to that person under
par. (b), or if there were insufficient funds available to pay the full amount of the initial payment, the department shall pay that person an amount not to exceed $100,000 in each succeeding year until the balance of the amount authorized under
sub. (6) is paid to that person.
94.73(7)(c)2.
2. The department may not make any payments under this paragraph in any year unless the department has made payments to all eligible responsible persons who are entitled to receive payment under
par. (b) in that year.
94.73(7)(c)3.
3. The department shall make no more than one payment in each year under this paragraph to an eligible responsible person as provided by rule. If there are insufficient funds in the appropriations under
s. 20.115 (7) (e) and
(w) to pay the amounts specified under this paragraph, the department shall distribute the available funds on a prorated basis.
94.73(7)(d)
(d) Notwithstanding
pars. (b) and
(c), if the department has previously reimbursed an eligible responsible person for corrective action costs incurred for prior corrective action taken at the same discharge site, the department may not pay that person more than $50,000 annually, nor may the department make any payment to that person in a year unless all other payments due under
pars. (b) and
(c) have been made. If there are insufficient funds in the appropriations under
s. 20.115 (7) (e) and
(w) to pay the amounts specified under this paragraph, the department shall distribute the available funds on a prorated basis.
94.73(7)(e)
(e) The department shall make payments under
par. (b) when funds are available in the appropriations under
s. 20.115 (7) (e) and
(w). The department shall make all payments under
pars. (c) and
(d) on the last day of each fiscal year in which a responsible person is entitled to receive a payment, except that the department may make initial payments for applications granted after April 30 of any year on the last day of the following fiscal year. When, on the last day of a fiscal year, the amount of funds available in the appropriations under
s. 20.115 (7) (e) and
(w) exceeds the amount necessary to make all payments under
pars. (b),
(c) and
(d), the department may make an additional payment to a responsible person who received a payment under
par. (b) or may increase the amount of a payment to a responsible person under
par. (b) or
(c) over the $50,000 or $100,000 maximum authorized under those paragraphs if the responsible person is authorized under
sub. (6) to receive additional reimbursement. After paying the full amount authorized under
sub. (6) to all responsible persons under
pars. (b) and
(c), the department may increase the amount of a payment to a responsible person under
par. (d) over the $50,000 maximum authorized under
par. (d) if the responsible person is authorized under
sub. (6) to receive additional reimbursement.
94.73(8)
(8) Subrogation. The department is entitled to the right of subrogation for the reimbursement of corrective action costs to the extent that a responsible person who receives reimbursement of corrective action costs may recover the costs from a 3rd party. The amounts collected by the department under this subsection shall be deposited in the agrichemical management fund.
94.73(9)
(9) Sampling requirements. The department, in cooperation with the department of natural resources, shall establish a program for the collection and analysis of soil and other environmental samples at sites where discharges may have occurred, including sites required to be registered according to rules promulgated by the department of agriculture, trade and consumer protection under
sub. (11).
94.73(10)
(10) Council duties. The council shall do all of the following:
94.73(10)(a)
(a) Advise the department on rules that are promulgated under this section.
94.73(10)(b)
(b) Advise the department on recommended fees and surcharges to fund reimbursement of corrective action costs.
94.73(10)(c)
(c) Advise the department on applications made for reimbursement of corrective action costs.
94.73(10)(d)
(d) Advise the department on any matter related to the administration of this section.
94.73(11)
(11) Rules. The department shall promulgate rules to implement this section. The department may promulgate rules regarding all of the following:
94.73(11)(a)
(a) The form of the application required to be filed with the department by persons seeking reimbursement of corrective action costs.
94.73(11)(b)
(b) The procedures to be used by the department in determining eligibility for and the amount of reimbursement for corrective action costs.
94.73(11)(c)
(c) The procedures to be used in making annual payments under
sub. (7).
94.73(11)(d)
(d) Registration requirements for persons who own or operate pesticide mixing and loading sites.
94.73(11)(e)
(e) Reasonable and customary charges for corrective action costs.
94.73(11)(f)
(f) Payment priorities under
sub. (7) among eligible responsible persons.
94.73(11)(g)
(g) Requirements related to the contents of orders under
sub. (2) or work plans under
sub. (4) (a).
94.73(11)(h)
(h) Corrective action costs that are not eligible for reimbursement under this section.
