Section 35.04. Costs eligible for reimbursement.

  Subject to the provisions of this chapter, the department shall reimburse a responsible person for the following corrective action costs, and no others:

(1)  The cost of qualified professional services needed for the effective planning and implementation of a corrective action, including engineering, hydrogeologic, field technician, hazardous waste disposal or general contractor services.

(2)  Costs to sample and analyze soils, groundwater or other media. This may include costs for soil boring, installation of monitoring wells, sample collection, sample analysis and related activities.

(3)  Costs to excavate contaminated soils and other contaminated materials, including backfilling and grading to restore the contours or drainage characteristics of land altered by the corrective action.

(4)  Costs to collect, handle, transport, treat or dispose of contaminated soils, groundwater or other contaminated materials. If the responsible person disposes of contaminated soils by means of landspreading under s. ATCP 35.03 , the department may reimburse the following additional costs related to that landspreading:

(a) Reasonable costs for tillage that is in excess of normal tillage and that is needed to reduce soil compaction caused by the landspreading. The department may not reimburse costs for more than 2 tillage passes.

(b) Costs for pre-plant nitrogen testing of the landspreading site to determine appropriate nitrogen credits for landspread soil that includes a significant nitrogen component. The department may reimburse pre-plant nitrogen testing only if that testing uses sampling and analytical methods that are scientifically recognized and standard within the agronomic community.

(c) Locally reasonable rent, not to exceed rent for one growing season, for cropland taken out of production for any of the following reasons:

1. The necessary stockpiling of soil, pending landspreading.

2. Crop harvesting restrictions in the landspreading permit.

(d) Costs to compensate a landowner for crop loss or yield reduction that occurs within one year after the landspreading if the landowner demonstrates, to a reasonable degree of certainty, that the crop loss or yield reduction was caused by one of the following:

1. Agricultural chemicals that were present in the landspread soil, but not known to be present when the landspreading occurred.

2. Planting delays caused by the landspreading.

3. Soil compaction caused by landspreading, notwithstanding reasonable tillage of the landspreading site.

(e) Costs to compensate a landspreading site owner for access, scheduling and like costs related to landspreading, if that compensation is necessary to obtain access to a landspreading site. The department may reimburse costs that are locally reasonable, and do not exceed $0.50 per cubic yard of landspread soil. This paragraph does not apply to landspreading on a site owned by the responsible person.

(f) Costs to remove rocks and other debris from landspread soils. The department may reimburse costs to remove rocks and other debris before or after the landspreading occurs, but not both. The department may not reimburse costs to remove rocks or debris more than 90 days after landspreading is completed. If a responsible person obtains competitive bids to screen the soil before it is landspread, the responsible person may not substitute the costs for post-landspreading debris removal without obtaining competitive bids under s. ATCP 35.16 .

(5)  Costs for any of the following corrective measures that the department specifically requires, or that the department specifically pre-approves in writing after finding that the measures are less expensive than the available alternatives:

(a) Removal and disposal of concrete or asphalt. The department may not reimburse costs for the removal or disposal of concrete or asphalt installed after January 1, 1998 unless the responsible person proves to the department, by credible laboratory tests, that the construction site was free of agricultural chemical contamination when the concrete or asphalt was installed. The cost to remove concrete or asphalt may include its depreciated value calculated as the original construction cost less all depreciation claimed to date by any person for tax purposes.

(b) Installation of an engineered barrier to limit infiltration of existing contamination, provided that the responsible person agrees in writing to maintain the barrier at his or her expense until the contamination is removed or fully degraded.

(c) Temporary removal and reinstallation of a structure, fixture or equipment item that is removed intact, and returned intact to its original use and approximate original location.

(d) The following corrective measures related to fixtures that are in good condition and operating adequately when the corrective measure occurs:

1. Temporary or permanent relocation.

2. Removal and replacement with a new fixture of the same size and quality, including any upgrade required by law.

3. Protection during a corrective action, through shoring or other methods.

(7)  Interest on approved reimbursement amounts as calculated by the department under s. ATCP 35.25 .

Cr. Register, August, 1994, No. 464 , eff. 9-1-94; am. (5), renum. (6) to be (7) and cr. (6), Register, September, 1998, No. 513 , eff. 10-1-98; am. (3), r. and recr. (4) to (6), Register, October, 2000, No. 538 , eff. 11-1-00; CR 03-119 : r. and recr. (5), r. (6) Register October 2004 No. 586 , eff. 11-1-04.