Current through August 26, 2024
(1) CONTRIBUTORY
NEGLIGENCE. The department may not diminish or deny an award under this chapter
as a result of negligence attributable to the applicant or any person who is
entitled to submit an application, except as provided in s.
292.65(8) (h), Stats.
Note: Section
292.65(8) (h), Stats., cross references s.
292.65(8) (d) 3, Stats., which states that applications
from applicants who were grossly negligent in maintaining the dry cleaning
facility in question shall be denied.
(2) ASSIGNMENT OF AWARDS. Awards may be
assigned as provided in s.
292.65(8) (i), Stats.
Note: Section
292.65(8) (i), Stats., provides that 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 and has
priority over any previously existing or subsequently created lien, assignment,
security interest or other interest in the proceeds of the award.
(3) REDUCTION OF AWARDS. Awards
based on applications that contain ineligible costs under s.
NR 169.11(3) shall be adjusted as
provided in s.
292.65(8) (j), Stats.
Note: Section
292.65(8) (j), Stats., provides that:
1. If an owner or operator prepares and
submits an application that includes ineligible costs that are identified by
the department by rule, 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 identified by rule that are included in the application.
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 by rule, the person shall
pay to the department an amount equal to 50% of the ineligible costs identified
by rule 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.
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% of the amount of ineligible costs
included in the statement.
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 s.
292.65(8) (e), (f), and (j) 1. and 2., Stats., and the
amount by which the payment exceeds the sum of the deductible and the amount by
which the amount calculated under s.
292.65(8) (e), Stats., exceeds the maximum award under
s.
292.65(8) (f), Stats.
(4) RECOVERY OF AWARDS. Awards shall be
recovered as provided in s.
292.65(9),
Stats.
Note: Section
292.65(9),
Stats., provides that:
(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.
(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.
(c) Disposition of funds. The net proceeds of
the recovery under par. (b) shall be paid into the dry cleaner environmental
response fund.
(5)
LIABILITY. This chapter does not create liability except as provided in s.
292.65(10),
Stats.
Note: Section
292.65(10),
Stats., provides that:
(a) No common
law liability, and no statutory liability that is provided in a statute other
than s.
292.65,
Stats., 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.
(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.
(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.
(6) PENALTIES. No person may knowingly make
or cause to be made a false or misleading statement in any document submitted
to the department under this chapter. Penalties for making the statements shall
be assessed as indicated in s.
292.99(1m) and (2), Stats.
