Current through August 26, 2024
(1) PRELIMINARY
OPINION. The department may issue a preliminary opinion on whether an applicant
is eligible for reimbursement of corrective action costs. The preliminary
opinion is not binding on the department.
(2) NOTICE ACKNOWLEDGING APPLICATION. Within
10 days after the department receives an application under s.
ATCP 35.06, the department shall issue a notice to the
applicant acknowledging the department's receipt of the application.
(3) REQUEST FOR ADDITIONAL INFORMATION.
Following receipt of an application under s.
ATCP 35.06, the department may require an applicant to
submit any additional information which may be relevant to the department's
review of the application.
(4)
DECISION. Within 90 days after the department receives a complete application
under s.
ATCP 35.06, including any additional information required
by the department under sub. (3), the department shall issue a written decision
approving or disapproving the application. The department may approve an
application in part, or approve an application subject to conditions specified
by the department. In its decision, the department shall specify all of the
following:
(a) The amount of eligible costs,
if any, on which reimbursement may be paid.
(b) The applicable rate of reimbursement
under s.
ATCP 35.22,
if any.
(c) The total reimbursement
amount, if any, that is approved for payment under s.
ATCP 35.28. The decision shall specify that payment is
subject to the terms and conditions specified under s.
ATCP 35.28.
(d)
If the department disapproves all or part of an application, the reasons for
that disapproval. The department shall also explain any amounts deducted from
the reimbursement application under sub. (5).
(5) INELIGIBLE COSTS REJECTED.
(a) The department shall disapprove any
portion of a reimbursement application that the department finds to be
ineligible for reimbursement under this chapter, and shall deduct any costs
that the department finds to be ineligible for reimbursement.
(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.
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.
(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.
(6) RECONTAMINATION; REDUCED REIMBURSEMENT
RATE.
(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.
(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:
1. The type of
agricultural chemical discharged.
2. The nature, size and location of
discharge.
3. The similarity
between the discharge and prior discharges.
4. The number of prior discharges, and the
number of prior discharges for which the department has reimbursed corrective
action costs.
5. The responsible
person's apparent negligence, if any.
6. Whether the discharge was caused by a law
violation.
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.
(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.
