ATCP 35.08(5)(b) (b) If the department finds that any portion of an applicant’s reimbursement application is ineligible, and that the applicant knew or should have known that it was ineligible, the department shall deduct twice the amount of the ineligible cost from the applicant’s total application. Deductions under this paragraph may not exceed the total amount of the applicant’s application. Before making a deduction under this paragraph, the department may consult with the agricultural chemical cleanup council appointed under s. ATCP 35.34.

ATCP 35.08 Note Note: The department will invoke sub. (5) (b) in cases where a cost is clearly ineligible, either because it is clearly prohibited under s. ATCP 35.14 or because there is no plausible basis for applying for reimbursement under this chapter. In order to protect themselves against a double deduction under sub. (5) (b), applicants may discuss questionable items with the department before submitting an application.

ATCP 35.08(5)(c) (c) If, after consulting with the agricultural cleanup council, the department determines that the cost submitted for any goods or services is clearly unreasonable in relation to current market cost for those goods or services, the department may deny reimbursement of the excessive cost, and may reimburse a lesser cost which the department considers reasonable. In determining whether a cost is unreasonable, the department may consider the nature of the goods or services, the geographic location of the discharge site, the need for the goods or services, the availability of alternative goods or services, and other factors that may reasonably affect the cost of the goods or services.

ATCP 35.08(6) (6) Recontamination; reduced reimbursement rate.

ATCP 35.08(6)(a) (a) The department, after consulting with the agricultural chemical cleanup council, may reduce the reimbursement rate for a corrective action related to a discharge discovered after November 1, 2004 if the department has received or paid a reimbursement application related to a prior discharge at the same discharge site.

ATCP 35.08(6)(b) (b) The presumptive reimbursement rate under par. (a) is 50%, unless the department finds that a different rate is appropriate. In determining the appropriate reimbursement rate, the department may consider all of the following in consultation with the agricultural chemical cleanup council:

ATCP 35.08(6)(b)1. 1. The type of agricultural chemical discharged.

ATCP 35.08(6)(b)2. 2. The nature, size and location of discharge.

ATCP 35.08(6)(b)3. 3. The similarity between the discharge and prior discharges.

ATCP 35.08(6)(b)4. 4. The number of prior discharges, and the number of prior discharges for which the department has reimbursed corrective action costs.

ATCP 35.08(6)(b)5. 5. The responsible person’s apparent negligence, if any.

ATCP 35.08(6)(b)6. 6. Whether the discharge was caused by a law violation.

ATCP 35.08 Note Note: See s. ATCP 35.12 (8), which prohibits the department from reimbursing any costs for corrective actions made necessary by intentional or grossly negligent violations of law.

ATCP 35.08(7) (7) Failure to submit information. If an applicant for reimbursement fails to provide an adequate report of the corrective measures taken or corrective action costs incurred, or fails to provide any other relevant information required by the department, the department may disapprove all or part of the application for reimbursement.

ATCP 35.08 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (1) and (5) (b), Register, September, 1998, No. 513, eff. 10-1-98; correction in (4) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 1998, No. 513; am. (5) (b), cr. (6), Register, October, 2000, No. 538, eff. 11-1-00; correction in (5) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, October, 2000, No. 538; CR 03-119: renum. (6) to be (7), cr. (6) Register October 2004 No. 586, eff. 11-1-04; CR 10-122: am. (5) (title), (a), (b), (c), (6) (a) Register July 2011 No. 667, eff. 8-1-11.

ATCP 35.10 ATCP 35.10 Responsible person; eligibility for reimbursement. A responsible person is not eligible for reimbursement of corrective action costs unless all of the following requirements are met:

ATCP 35.10(1) (1) The responsible person files with the department, by October 14, 2000 or within 3 years after incurring the corrective action costs, whichever is later, a reimbursement application that complies with s. ATCP 35.06.

ATCP 35.10(2) (2) The responsible person complies with every corrective action order issued by the department under s. ATCP 35.02 or the department of natural resources under s. 292.11 (7) (c), Stats.

ATCP 35.10(3) (3) The responsible person, upon discovering the discharge, promptly reports the discharge to the department or, if the responsible person is required to report the discharge under s. 292.11 (2), Stats., to the department of natural resources.

ATCP 35.10(4) (4) If the responsible person is a commercial application business, the responsible person is in compliance, at the time of the discharge, with s. ATCP 29.20.

ATCP 35.10(5) (5) If an approved workplan is required under s. ATCP 35.18 (1), the corrective action complies with the approved workplan for that corrective action.

ATCP 35.10(6) (6) The corrective action complies with applicable requirements under chs. 281 to 285 and 289 to 299, Stats., this chapter, chs. ATCP 29 to 33, and chs. NR 700, 706, 708 and 712 to 727.

ATCP 35.10 Note Note: For corrective actions under this chapter, the department is authorized to review compliance with chs. NR 700, 706, 708, and 712 to 727, and to grant required approvals and variances under those chapters on behalf of the department of natural resources.

ATCP 35.10(7) (7) The corrective action is performed by or under the direct supervision of a person who meets applicable qualification requirements under ch. NR 712, and who has adequate training and experience to perform the corrective action.

ATCP 35.10(8) (8) The responsible person’s application for reimbursement includes an application or waiver, under s. ATCP 35.20 (3), from each of the responsible persons identified under s. ATCP 35.20 (2).

ATCP 35.10 History History: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (1) to (4) and (6), Register, September, 1998, No. 513, eff. 10-1-98; CR 10-122: am. (8) Register July 2011 No. 667, eff. 8-1-11; CR 14-047: am. (6) Register May 2015 No. 713, eff. 6-1-15.

ATCP 35.12 ATCP 35.12 Corrective actions not eligible for reimbursement. The department may not reimburse a responsible person for a corrective action that is any of the following:

ATCP 35.12(1) (1) Taken in response to a discharge that is an intentional use of an agricultural chemical for an agricultural purpose, unless the corrective action is ordered by the department under s. ATCP 35.02 or by the department of natural resources under s. 292.11 (7) (c), Stats. An intentional use of an agricultural chemical includes an application of that chemical, but does not include handling, mixing, loading or disposal that is incidental to an application.

ATCP 35.12(2) (2) Taken by the department of natural resources under s. 292.31 (1), (3) or (7), Stats.