292.65(4)(c)2.
2. Subdivision 1. does not apply to an owner or operator who began a site investigation or remedial action activity before October 14, 1997.
292.65(4)(d)
(d)
Information from department. When an owner or operator notifies the department under
par. (c) 1., the department shall provide the owner or operator with information on the program under this section and the department's estimate of the eligibility of the owner or operator for an award under this section.
292.65(4)(e)
(e)
Investigation. After notifying the department under
par. (c) 1., if applicable, and before conducting remedial action activities, an owner or operator shall complete an investigation to determine the extent of environmental impact of the dry cleaning product discharge, except as provided in
pars. (g) and
(h).
292.65(4)(f)
(f)
Remedial action plan. After completing the investigation under
par. (e) and before conducting remedial action activities, an owner or operator shall prepare a remedial action plan, based on the investigation under
par. (e), that identifies specific remedial action activities proposed to be conducted, except as provided in
pars. (g) and
(h).
292.65(4)(g)
(g)
Immediate action. An owner or operator is not required to complete an investigation or prepare a remedial action plan before conducting an immediate action activity if the department determines that an immediate action is necessary.
292.65(4)(h)
(h)
Interim action. An owner or operator is not required to complete an investigation or prepare a remedial action plan before conducting an interim action activity if the department determines that an interim action is necessary.
292.65(4)(i)
(i)
Review of site investigation and remedial action plan. The department shall, at the request of an owner or operator, review the site investigation results and the remedial action plan and advise the owner or operator on the adequacy of the proposed remedial action activities in meeting the requirements of this section. The department shall complete the review of the site investigation and remedial action plan within 45 days. The department shall also provide an estimate of when funding will be available to pay an award for remedial action conducted in response to the dry cleaning product discharge.
292.65(4)(j)
(j)
Remedial action. The owner or operator shall conduct all remedial action activities that are required under this section in response to the dry cleaning product discharge, including all of the following:
292.65(4)(j)1.
1. Recovering any recoverable dry cleaning product from the environment.
292.65(4)(j)2.
2. Managing any residual solid or hazardous waste in a manner consistent with local, state and federal law.
292.65(4)(k)
(k)
Agents. An owner or operator may enter into a written agreement with another person under which that other person acts as an agent for the owner or operator in conducting the activities required under
par. (j). The owner or operator and the agent shall jointly submit the application for an award under this section.
292.65(4)(L)
(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.
292.65(4)(m)
(m)
Notification of insurance claims and receipt of proceeds. An owner or operator shall notify the department of any insurance claim made to cover eligible costs, the status of the claim, and, if the owner or operator has received any insurance proceeds arising from the claim, the amount of the proceeds.
292.65(5)
(5) Enhanced pollution prevention measures. 292.65(5)(a)1.1. The owner or operator of a dry cleaning facility on which construction begins after October 14, 1997, 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).
292.65(5)(a)2.
2. The owner or operator of a dry cleaning facility on which construction began on or before October 14, 1997, 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).
292.65(5)(b)
(b) An owner or operator who is required to implement enhanced pollution prevention measures under
par. (a) shall demonstrate all of the following:
292.65(5)(b)3.
3. That each machine or other piece of equipment in which dry cleaning product 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 product from the machines or other pieces of equipment.
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 product.
292.65(5)(c)
(c) The owner or operator of a dry cleaning facility is not eligible for an award under this section unless the owner or operator has implemented the following enhanced pollution prevention measures:
292.65(5)(c)1.
1. That the owner or operator manages all wastes that are generated at the dry cleaning facility and that contain dry cleaning product as hazardous wastes in compliance with
ch. 291 and
42 USC 6901 to 6991i.
292.65(5)(c)2.
2. That the dry cleaning facility does not discharge dry cleaning product or wastewater from dry cleaning machines into any sanitary sewer or septic tank or into the waters of this state.
292.65(5)(c)3.
3. That any perchloroethylene delivered to the dry cleaning facility is delivered 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 incurred by the owner or operator of a dry cleaning facility because of a discharge of dry cleaning product at the dry cleaning facility 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 product discharge from a dry cleaning facility.
292.65(7)(a)8.
8. Maintenance of equipment for dry cleaning product 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)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 product 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 product.
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, 2005, 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 product 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 product discharge was caused on or after October 14, 1997, 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)
(e)
Deductible. The department may reimburse the owner or operator of a dry cleaning facility only for eligible costs incurred at each dry cleaning facility that exceed the following deductible:
292.65(8)(e)2.
2. 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.
3. If eligible costs exceed $400,000, $26,000 plus 10% of the amount by which eligible costs exceed $400,000.
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.
