Section 35.08. Department action on reimbursement application.

 

(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 .

(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.

(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.

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.

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. Microsoft Windows NT 6.1.7601 Service Pack 1 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. Microsoft Windows NT 6.1.7601 Service Pack 1