Section 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:

(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.

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

(3)  Taken by the department of natural resources under s. 292.11 (7) (a) , Stats., because the applicant failed or refused to respond adequately to a discharge.

(4)  Taken by a pesticide manufacturer or labeler who is required to be licensed under s. 94.68 (1) , Stats., or who is exempt from licensing under s. 94.68 (1) (b) , Stats., in response to a discharge by that pesticide manufacturer or labeler.

(5)  Taken in response to a discharge that occurs while the agricultural chemical is being held or transported by a common carrier.

(6)  Taken in response to a discharge from a landfill or other facility that is any of the following:

(a) A facility required to be licensed under s. 289.31 , Stats.

(b) A facility that would be required to be licensed under s. 289.31 , Stats., except that the department of natural resources has issued a specific exemption under s. 289.43 , Stats., or rules promulgated under s. 289.05 (1) or (2) , Stats.

(c) A closed or abandoned solid or hazardous waste disposal facility that, if operating today, would require a license under s. 289.31 , Stats., or a specific license exemption under s. 289.05 (1) or (2) , Stats.

(7)  Taken in violation of federal, state or local law.

(8)  Taken in response to a discharge caused by an intentional or grossly negligent violation of law committed by the responsible person or the responsible person's agent, including an intentional or grossly negligent violation of ss. 94.645 , 94.67 to 94.71 , 94.73 or 292.11 , Stats., or of any rule or order adopted under those sections.

(9)  Taken without a reasonable technical or scientific basis.

(10)  Taken without a reasonable prospect of success or environmental benefit.

(11)  Taken at a discharge site located outside this state.

Cr. Register, August, 1994, No. 464 , eff. 9-1-94; am. (1) to (3), (6) (a) to (c), (8) and (10), Register, September, 1998, No. 513 , eff. 10-1-98.