292.65(5)(b)4.
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.
292.65(5)(b)5.
5. That all dry cleaning solvent is delivered to the dry cleaning facility by means of a closed, direct-coupled delivery system.
292.65(7)(a)(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:
292.65(7)(a)1.
1. Removal of dry cleaning solvents from surface waters, groundwater or soil.
292.65(7)(a)2.
2. Investigation and assessment of contamination caused by a dry cleaning solvent discharge from a dry cleaning facility.
292.65(7)(a)8.
8. Maintenance of equipment for dry cleaning solvent recovery performed as part of remedial action activities.
292.65(7)(a)9.
9. Restoration or replacement of a private or public potable water supply.
292.65(7)(a)13.
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.
292.65(7)(a)14.
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.
292.65(7)(c)
(c)
Exclusions from eligible costs. Eligible costs for an award under this section do not include the following:
292.65(7)(c)2.
2. Costs of retrofitting or replacing dry cleaning equipment.
292.65(7)(c)3.
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.
292.65(7)(c)4.
4. Costs that the department determines to be unreasonable or unnecessary to carry out the remedial action activities as specified in the remedial action plan.
292.65(7)(c)5.
5. Costs for investigations or remedial action activities conducted outside this state.
292.65(7)(ce)
(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.
292.65(7)(cm)
(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.
292.65(7)(d)
(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.
292.65(8)(a)(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:
292.65(8)(a)1.
1. A record of investigation results and data interpretation.
292.65(8)(a)3.
3. Contracts for eligible costs incurred because of the discharge and records of the contract negotiations.
292.65(8)(a)4.
4. Accounts, invoices, sales receipts or other records documenting actual eligible costs incurred because of the discharge.
292.65(8)(a)4m.
4m. If the owner or operator receives any proceeds arising from an insurance claim for any eligible costs, a record of the payment.
292.65(8)(a)5.
5. Other records and statements that the department determines to be necessary to complete the application.
292.65(8)(b)
(b)
Acknowledgement. The department shall acknowledge, in writing, the receipt of an application under
par. (a).
292.65(8)(c)
(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.
292.65(8)(d)
(d)
Denial of applications. The department shall deny an application under this section if any of the following applies:
292.65(8)(d)1.
1. The application is not within the scope of this section.
292.65(8)(d)3.
3. The applicant has been grossly negligent in the maintenance of the dry cleaning facility.
292.65(8)(d)4.
4. The applicant intentionally damaged the dry cleaning equipment.
292.65(8)(d)6.
6. The applicant willfully failed to comply with laws or rules of this state concerning the use or disposal of dry cleaning solvents.
292.65(8)(d)8.
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, including a person who provided perchloroethylene to the owner or operator or prior owner or operator of a dry cleaning facility using a system other than a closed, direct-coupled delivery system.
292.65(8)(e)1.1. 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:
292.65(8)(e)1.b.
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.
292.65(8)(e)1.c.
c. If eligible costs exceed $400,000, $26,000 plus 10% of the amount by which eligible costs exceed $400,000.
292.65(8)(e)3.
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:
292.65(8)(e)3.am.
am. 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.
292.65(8)(e)3.ar.
ar. If eligible costs exceed $400,000, $26,000 plus 10% of the amount by which eligible costs exceed $400,000.
292.65(8)(e)3.b.
b. An amount equal to 30 times the average annual license fee paid under
s. 77.9961 (1) for the year in which an award is made.
292.65(8)(e)3.c.
c. An amount equal to 30 times the total amount collected under
s. 77.9962 for the year in which an award is made divided by the number of dry cleaning facilities in operation during that year.
292.65(8)(e)3.d.
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.
292.65(8)(f)
(f)
Maximum awards. The department may not issue financial assistance under this section for reimbursement for costs incurred at a single dry cleaning facility that totals more than $500,000.
292.65(8)(g)
(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.
292.65(8)(h)
(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.
292.65(8)(i)
(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.
292.65(8)(j)1.1. 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.
292.65(8)(j)2.
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.
292.65(8)(j)3.
3. The department shall promulgate a rule identifying the ineligible costs to which
subds. 1. and
2. apply.
292.65(8)(j)4.
4. If, prior to receiving an award under this section, an owner or operator receives payment from an insurance company arising out of a claim for payment of any eligible costs, the department may not reimburse the owner or operator any amount that exceeds the difference between the amount of the award calculated under
subd. 1. or
2. and
pars. (e) and
(f) and the amount by which the insurance payment exceeds the sum of the deductible and the amount by which the amount calculated under
par. (e) exceeds the maximum award under
par. (f).
292.65(8m)
(8m) Reimbursement of insurance proceeds. If, after the owner or operator receives an award under this section, the owner or operator receives payment from an insurance company arising out of a claim for payment of any eligible costs, the owner or operator shall pay to the department the amount by which the insurance payment exceeds the sum of the deductible and the amount by which the amount calculated under
sub. (8) (e) exceeds the maximum award under
sub. (8) (f), but not more than the amount of the award received. The amounts collected by the department under this subsection shall be deposited in the dry cleaner environmental response fund.
292.65(9)(a)(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.
292.65(9)(b)
(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.
292.65(9)(c)
(c)
Disposition of funds. The net proceeds of the recovery under
par. (b) shall be paid into the dry cleaner environmental response fund.
292.65(10)(a)(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.
292.65(10)(b)
(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.
292.65(10)(c)
(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.
292.65(11)
(11) Environmental fund reimbursement. If the department expends funds from the environmental fund under
s. 292.11 (7) (a) or
292.31 (3) (b) because of a discharge of dry cleaning solvent at a dry cleaning facility, the department shall transfer from the appropriation account under
s. 20.370 (6) (eq) to the environmental fund an amount equal to the amount expended under
s. 292.11 (7) (a) or
292.31 (3) (b). The department shall make transfers under this subsection when the department determines that sufficient funds are available in the appropriation account under
s. 20.370 (6) (eq).
292.65(12)(a)(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.
292.65(12)(b)
(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.
292.65(12m)
(12m) Prohibition. No person may knowingly make or cause to be made a false or misleading statement in any document submitted to the department under this section.
292.65(13)
(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.
292.65(14)
(14) Sunset. This section does not apply after June 30, 2032.
292.65 History
History: 1997 a. 27;
1999 a. 9,
185 ss.
143 to
145,
188 to
190.
292.66
292.66
Assistance for purchase and installation of interim remedial equipment at dry cleaning facilities. 292.66(1)(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.
292.66(2)
(2) The owner or operator of a dry cleaning facility is eligible for an award under this section if all of the following apply:
292.66(2)(a)
(a) The owner or operator reports the dry cleaning solvent discharge to the department in a timely manner, as provided in
s. 292.11.
