94.72(9)
(9) Inspection. The department shall have free access during regular business hours to all places of business, mills, buildings, carriages, cars, vessels and parcels used in this state in the manufacture, transportation, importation, sale or storage of any feed product. The department may open any parcel containing or supposed to contain any feed product and take from the parcel in the manner prescribed in
sub. (10) samples for analysis. The department may cause to be analyzed annually at least one sample so taken of every feed product found, exposed for sale or distributed in this state. Any feed product stored on the premises of a retail establishment shall be considered as being exposed for sale unless plainly labeled or placarded as not being offered for retail sale.
94.72(10)
(10) Sampling, analysis. No action may be maintained for a violation of this section based upon an analysis of a sample from less than 10 separate original packages, unless there are less than 10 separate original packages in the lot, in which case portions for the official sample shall be taken from each original package. If the feed product is in bulk, portions shall be taken from not less than 10 different places in the lot but this does not exclude sampling in bulk when not exposed sufficiently to take portions from 10 different places, in which case portions are to be taken from as many places as practicable. If the sample procured is larger than is required, it shall be thoroughly mixed and quartered until a sample of suitable size remains. If requested the sample shall be divided into 2 parts, placed in suitable containers and sealed and one of the containers, if requested, shall be delivered to the person apparently in charge of the feeds. In sampling canned or small packaged goods, one entire can or small package is sufficient for examination. In sampling liquids or semiliquids a portion drawn from one container is sufficient for examination. The department shall analyze, or cause to be analyzed, the sample collected, and the result of the analysis, together with additional information as the department may deem advisable, shall be promptly transmitted to the manufacturer and to the dealer or person in whose possession the product was sampled, and shall be published annually. The manufacturer or person responsible for the placing of any commodity sampled upon the market or the dealer or person in whose possession the feed was found, upon request to the department within 10 days after the report is mailed, shall be furnished with a portion of the official sample. The methods of analysis shall be those in effect at the time by the association of official analytical chemists.
94.72(11)
(11) Hearing. If it shall appear from the examination of any sample of feed or other evidence that any of the provisions of this section relating to accuracy of label statements have been violated, the department shall cause notice of such violation to be given to the manufacturer and the dealer from whom said sample was taken; any party so notified shall be given an opportunity to be heard under such rules and regulations as may be prescribed by the department. After such hearing, if it appears that any of the provisions of this section relating to accuracy of label statements have been violated, the department may certify the facts to the proper prosecuting attorney and furnish that officer with a copy of the results of the analysis or other examination of such sample, duly authenticated by the analyst or other officer making the examination, under the oath of such officer.
94.72(12)
(12) Statistics. For the purpose of obtaining information bearing directly on the agricultural situation in this state each manufacturer or distributor selling commercial feeds to purchasers in this state shall submit on request of the department a confidential statement of total tonnage of differing brands or types of feed sold during any calendar year, the tonnage to be classified as requested by the department. If accurate information is not obtainable estimates shall be made.
94.72(13)
(13) Authority. The department may:
94.72(13)(a)
(a) Enforce the provisions of this section and prescribe and enforce administrative rules and regulations which shall be in harmony with the provisions of this section and the official pronouncements of the association of American feed control officials;
94.72(13)(b)
(b) Temporarily order withdrawn from distribution any lot of a feed product if the department has reasonable cause to believe that it is being distributed in this state in violation of this section by serving written notice on the owner or custodian. A temporary order prohibits the distribution, movement or disposition of the feed product for up to 60 days after the service of the notice without the prior approval of the department pending further inspection, sampling or laboratory examination. If the department determines that the feed product is not being distributed in violation of this section after the inspection, analysis or examination, it shall immediately withdraw the order and promptly notify the owner or custodian. If the department determines that the feed product is being distributed in violation of this section, the department may extend the order by serving written notice on the owner or custodian. An extended order prohibits the distribution, movement or disposition of the feed product without the prior approval of the department. An extended order remains in effect until the final disposition of the feed is agreed upon or the feed is otherwise disposed of as the department authorizes or directs. If the final disposition is not agreed upon within 30 days after the service of notice of the extended order, the feed product shall be disposed of as the department by notice in writing may authorize or direct. Any order under this paragraph has the effect of a special order under
s. 93.18 and is subject to the right to a hearing before the department if a request is received within 10 days after the service of the notice.
94.72(13)(c)
(c) Cooperate with any agency of the United States government in the inspection of medicated feeds and establishments where such feed is manufactured.
94.72(13)(d)
(d) Require persons manufacturing or distributing in this state any feed product to furnish the department with a label or facsimile thereof for the feed product sold or distributed by them.
94.72(14)(a)(a) A person who violates this section or an order issued or a rule promulgated under this section shall be fined not more than $200 or imprisoned not more than 6 months or both.
94.72(14)(b)
(b) In addition to any other penalty, an adulterated feed product is subject to seizure by court action, condemnation and disposition as the court directs and the proceeds from any sale shall be paid into the state treasury. The court may release the feed product seized when the requirements of this section have been complied with, and upon payment of all costs and expenses incurred by the state in any proceedings connected with the seizure.
94.72 Cross-reference
Cross-reference: See also ch.
ATCP 42, Wis. adm. code.
94.73
94.73
Agricultural chemical cleanup program. 94.73(1)(1)
Definitions. In this section:
94.73(1)(a)
(a) "Agricultural chemical" means a substance that is a fertilizer or a nonhousehold pesticide and that is a hazardous substance, as defined in
s. 299.01 (6).
94.73(1)(b)
(b) "Corrective action" means action that is taken in response to a discharge and that is necessary to restore the environment to the extent practicable and to minimize the harmful effects of the discharge to the air, lands or waters of this state. "Corrective action" includes action taken or ordered by the department of natural resources under
s. 292.11 (7) in response to a discharge, but does not include action ordered by the department of natural resources under
s. 291.37 (2) or
291.95. "Corrective action" does not include action taken, or ordered to be completed, before January 1, 1989.
94.73(1)(c)
(c) "Corrective action costs" means reasonable costs incurred in taking corrective action.
94.73(1)(e)
(e) "Discharge" means the discharge, as defined in
s. 292.01 (3), of an agricultural chemical.
94.73(1)(f)
(f) "Fertilizer" has the meaning given in
s. 94.64 (1) (e), except that it does not include nitrates or other forms of nitrogen found in the environment that cannot be attributed to a discharge.
94.73(1)(h)
(h) "Responsible person" means a person who owns or controls an agricultural chemical that is discharged, a person who causes a discharge or a person on whose property an agricultural chemical is discharged or any of their successors in interest.
94.73(2)
(2) Corrective action ordered or authorized by the department. 94.73(2)(a)(a) The department may issue an order requiring a responsible person to take corrective action. Except as provided in a memorandum of understanding under
sub. (12), if a discharge involves a hazardous substance that may also become a hazardous waste, the department and the department of natural resources shall consult to determine whether corrective action should be taken under this section or
s. 291.37 (2),
291.95 (1) or
292.31 (3).
94.73(2)(b)
(b) An order under
par. (a) shall include all of the following:
94.73(2)(b)2.
2. A description of the property on which the responsible person is required to take the corrective action.
94.73(2)(b)3.
3. A description of the corrective action required to be taken.
94.73(2)(b)4.
4. A date by which the responsible person is required to complete the corrective action.
94.73(2)(bg)
(bg) The corrective action ordered under
par. (a) may include any of the following:
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.
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) (wm) 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 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) within 3 years after incurring the corrective action costs or after October 14, 1997, whichever is later.
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
(f), the department may reimburse a responsible person who applies for reimbursement a total of not more than $50,000 for the replacement or restoration of private wells or for connection to a public or private water source if the department or the department of natural resources orders the well replacement or restoration or the connection 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 $7,500 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 agricultural chemical cleanup 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.
