Chapter 292

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)(c)6. 6. Costs of financing eligible activities.

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) (8) Awards.

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 if the owner or operator submits the notification of potential claim under sub. (4) (c) after August 30, 2008. 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)2. 2. A remedial action plan.

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 funds arising from an application, including an insurance claim, for any eligible costs or a tax credit based on 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 the applicant for eligible costs. 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)2. 2. The applicant submits a fraudulent application.

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)5. 5. The applicant falsified records.

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)7. 7. All of the fees, interest, and penalties due under ss. 77.9961, 77.9962, and 77.9964 have not been paid unless an agreement has been entered into with the department of revenue establishing a payment schedule for all of the fees, interest, and penalties due.

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 make an award to 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)1. 1. If eligible costs are $200,000 or less, $10,000.

292.65(8)(e)2. 2. If eligible costs exceed $200,000 but do not exceed $400,000, $10,000 plus 8 percent 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 percent 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) (j) Reduction of awards.

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 percent of the ineligible costs under subd. 2. that are included in the application.

292.65(8)(j)2. 2. If a person other than an owner or operator prepares an application that is submitted by the owner or operator and that includes ineligible costs that are identified under subd. 3., the person shall pay to the department an amount equal to 50 percent of the ineligible costs identified under subd. 3. that are included in the application. A person, other than an owner or operator, who prepares an application may not charge the owner or operator for any amount that the person 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)3m. 3m. If a person other than an owner or operator prepares a statement that is submitted by the owner or operator to obtain payment for costs incurred by a 3rd party under sub. (7) (b) and the statement includes ineligible costs, the person shall pay to the department an amount equal to 50 percent of the amount of ineligible costs included in the statement. Payments made under this subdivision shall be deposited in the dry cleaner environmental response fund.

292.65(8)(j)4. 4. If, prior to receiving an award under this section, an owner or operator receives payment from another person, including an insurance company, arising out of an application for payment of any eligible costs or receives a tax credit based on 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 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 payments and tax credits. If, after an owner or operator receives an award under this section, the owner or operator receives payment from another person, including an insurance company, arising out of an application for payment of any eligible costs or receives a tax credit based on any eligible costs, the owner or operator shall pay to the department any amount by which the payment or tax credit exceeds the difference between the total amount of eligible costs and the amount of the award, but not more than the amount of the award. The amounts collected by the department under this subsection shall be deposited in the dry cleaner environmental response fund.

292.65(9) (9) Recovery of awards.

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) (10) Liability.

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 product at a dry cleaning facility and there is a person who would be an eligible owner or operator under this section for the 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) less the applicable deductible under sub. (8) (e). 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) (12) Records.

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 program under this section. 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; 2001 a. 16; 2003 a. 312.

292.65 Cross-reference Cross-reference: See also ch. NR 169, Wis. adm. code.

292.68 292.68 Reimbursement for disposal of PCB contaminated sediment.

292.68(1) (1) Definitions. In this section:

292.68(1)(a) (a) “Disposal costs” means the costs of transporting PCB contaminated sediment to a hazardous waste disposal facility, the fees for disposing of the PCB contaminated sediment in the hazardous waste disposal facility, and the cost of any permits that an applicant is required to obtain in order to transport and dispose of the PCB contaminated sediment.

292.68(1)(b) (b) “PCB contaminated sediment” means sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater and that is dredged from a navigable water in this state.

292.68(2) (2) Program. The department shall administer a program to provide reimbursement to certain responsible parties for a portion of costs incurred for disposing of PCB contaminated sediment at an out-of-state hazardous waste disposal facility, as provided in this section.

292.68(3) (3) Eligible person. A person is eligible for the program under this section if the person is a responsible party, under s. 292.11 or 42 USC 9601 to 9675, for the remediation of PCB contaminated sediment or has entered into a consent decree with the department or the federal environmental protection agency under which the person undertakes the remediation of PCB contaminated sediment.

292.68(4) (4) Application. A person may seek reimbursement under this section by submitting an application to the department that contains all of the following:

292.68(4)(a) (a) Test results that show that the sediment on which the application is based contains polychlorinated biphenyls in a concentration of 50 parts per million or greater.

292.68(4)(b) (b) Documentation showing that the applicant is an eligible person under sub. (3).

292.68(4)(c) (c) Documentation showing that the PCB contaminated sediment was transported to and disposed of at a licensed hazardous waste disposal facility outside of this state and that disposal occurred on or after May 1, 2007.

292.68(4)(d) (d) Documentation showing the disposal costs, including information concerning the length and other terms of any contract for the disposal of the PCB contaminated sediment, and showing any other costs that the department determines to be reasonably necessary and attributable to the out-of-state disposal.

292.68(4)(e) (e) An estimate, in accordance with sub. (5), of what the disposal costs would be using a facility in this state that is approved for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater.

292.68(5) (5) Estimate of in-state disposal costs.

292.68(5)(a) (a) If there is a facility in this state that is approved for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater, an applicant shall make the estimate required by sub. (4) (e) using the disposal costs for that facility.

292.68(5)(b) (b) Except as provided in par. (c), if there is no facility in this state that is approved for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater, an applicant shall make the estimate required by sub. (4) (e) in one of the following ways:

292.68(5)(b)1. 1. Based on the costs of disposing of PCB contaminated sediment at facilities in other states, other than the facility that the applicant uses for disposal of the contaminated sediments, that are comparable to a facility that, if constructed in this state, would meet the applicable state and federal requirements for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater.

292.68(5)(b)2. 2. Based on the costs of constructing and operating a facility in this state that would meet the applicable state and federal requirements for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater.

292.68(5)(c) (c) If there is no facility in this state that is approved for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater and if the department has accepted, within 2 years of the date that an applicant submits an application, an estimate required by sub. (4) (e) using the method under par. (b) 1., the applicant may use that estimate to satisfy sub. (4) (e).

292.68(5)(d) (d) If an applicant is required to make an estimate under par. (b), the applicant shall include in the application an explanation of the method used to estimate the cost of transporting the PCB contaminated sediment to a facility in this state.

292.68(6) (6) Notification of completeness. When the department receives an application under sub. (4), the department shall notify the claimant whether the application is complete and, if the application is not complete, the information that the applicant must submit to complete the application.

292.68(7) (7) Decision on application.

292.68(7)(a) (a) Subject to pars. (b) and (c), the department shall approve a complete application that complies with sub. (4) and the rules promulgated under sub. (11) if the department determines that the disposal costs incurred by the applicant and any other costs that the department determines to be reasonably necessary and attributable to the out-of-state disposal exceed what the disposal costs would be using a facility in this state that meets the applicable state and federal requirements for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater.

292.68(7)(b) (b) The department may only approve reimbursement for costs incurred on or after the first day of the 24th month before the month in which the application is submitted, except that the department may approve reimbursement for costs incurred between May 1, 2007, and June 30, 2009, if the application is submitted before July 1, 2011.

292.68(7)(c) (c) The department shall deny an application if the department determines that the application is fraudulent.

292.68(8) (8) Reimbursement.

292.68(8)(a) (a) Except as provided in par. (b), if the department approves an application under sub. (4), the department shall, within 60 days of receiving the complete application, pay the applicant an amount equal to 95 percent of the amount by which the sum of the approved costs exceeds what the disposal costs would be using a facility in this state that meets the applicable state and federal requirements for the disposal of sediment that contains polychlorinated biphenyls in a concentration of 50 parts per million or greater.

292.68(8)(b) (b) If the amount determined under par. (a) exceeds the amount available in the appropriation account under s. 20.370 (6) (ev), the department shall pay the excess when additional funds become available.

292.68(9) (9) Review of decision.

292.68(9)(a) (a) No later than the 30th day after the day on which the department approves or denies an application under sub. (4), the applicant may submit a petition for reconsideration to the secretary. The secretary shall issue a decision on whether to grant the petition no later than the 20th day after the day on which the applicant submits the petition. If the secretary grants the petition, the secretary shall meet with the applicant and employees of the department and shall issue a decision on the reconsideration no later than the 30th day after the day of the meeting.

292.68(9)(b) (b) No later than the 30th day after the day on which the department approves or denies an application under sub. (4) or, if the applicant petitioned for reconsideration under par. (a), no later than the 30th day after the day on which the secretary denied the petition or issued a decision on reconsideration, the applicant may request a contested case hearing under ch. 227.

292.68(9)(c) (c) No later than the 30th day after the day on which the department approves or denies an application under sub. (4) or, if the applicant petitioned for reconsideration under par. (a), no later than the 30th day after the day on which the secretary denied the petition or issued a decision on reconsideration, or, if the applicant requested a contested case hearing under ch. 227, no later than the 30th day after the day on which the final decision on the contested case is issued, an applicant may petition for judicial review of the department’s decision on the application.

292.68(10) (10) Effect of program.