Section 35.14. Costs not eligible for reimbursement.

  The department may not reimburse a responsible person for any of the following:

(1)  Costs that are not eligible for reimbursement under s. ATCP 35.04 .

(2)  Indirect costs charged by a contractor unless those costs are allocated to the contract according to a reasonable cost allocation formula that the contractor uses for other, similar contracts.

(3)  A responsible person's indirect costs. This does not prohibit the department from reimbursing any of the following:

(a) Actual costs for equipment, supplies or services that are used exclusively for the corrective action. If a responsible person purchases equipment that is used exclusively for the corrective action, the department may pay reimbursement on the difference between the purchase cost and the reasonable salvage value of that equipment, provided that the difference does not exceed the reasonable rental cost for equivalent equipment.

(b) Normal employee wages, salaries, expenses or fringe benefit allocations for time which the responsible person's employees actually spend on a corrective action.

(c) Costs for equipment owned by the responsible person and used during a corrective action for excavating, trucking or landspreading, provided that all of the following apply:

1. The equipment is reasonably sized and designed to perform the corrective action.

2. The hours or units of equipment use are reasonable and necessary for the task performed.

3. The equipment costs are determined according to a reasonable cost allocation formula.

4. The equipment costs do not exceed reasonable rental costs for equivalent equipment, including any operator costs.

(4)  The cost for the time that the responsible person, or any officer of the responsible person, spends planning or implementing a corrective action. This does not prohibit the department from reimbursing normal employee wages, salaries, expenses or fringe benefit allocations for time which employees, other than officers, spend implementing a corrective action.

(5)  Costs to construct, repair, replace, improve, relocate or demolish any structure, equipment or fixture, except as provided under s. ATCP 35.04 (5) .

(6)  Loss or impairment of property values or other assets, except as provided under s. ATCP 35.04 (5) .

(7)  Loss or impairment of revenue or income.

(8)  Attorney fees or other legal costs.

(9)  Costs of relocating residents or business operations.

(10)  Costs of aesthetic or other improvements that are not essential to a corrective action, except for restorative grading and filling costs authorized under s. ATCP 35.04 (3) .

(11)  A cost that is reimbursed from another source. If, after being reimbursed by the department for any cost, a responsible person is reimbursed for the same cost from another source, the responsible person shall promptly notify the department and repay any duplicate reimbursement.

(12)  The cost of replacing discharged agricultural chemicals.

(13)  The cost of providing alternative sources of drinking water or point–of–use water purification devices, except that the department may reimburse a responsible person up to $50,000 for any of the following corrective actions if the department or the department of natural resources orders that action in response to a discharge:

(a) Replacement or restoration of private wells.

(b) Connection to alternative water sources, whether public or private.

(14)  Liability claims or judgments.

(15)  Costs incurred by any federal, state or local government entity. The department may reimburse a responsible person for corrective action costs incurred by the department of natural resources under s. 292.11 (7) (a) , Stats., and charged to the responsible person, provided that the responsible person reimbursed the department of natural resources and did not fail or refuse to take corrective action in response to an order or directive from the department or the department of natural resources.

(16)  Costs for a contractor's services that exceed the contractor's bid price for those services, except as provided under s. ATCP 35.16 (2) (c) .

(17)  Costs that the responsible person has not yet paid, or on which the responsible person may later receive a discount or rebate.

(18)  Costs not supported by a canceled check or other conclusive proof of payment by the responsible person who is applying for reimbursement of those costs.

(19)  Costs to investigate or repair environmental contamination involving substances that are not agricultural chemicals. If a corrective action under this chapter is combined with the investigation or repair of environmental contamination involving substances that are not agricultural chemicals, the department may reimburse a portion of the combined project costs based on a reasonable cost allocation formula approved by the department. If, for any combination project, a responsible person also submits a reimbursement application to another governmental agency, the cost allocation formula shall be approved by the department and that other agency.

(20)  Costs to analyze environmental samples for substances that are not agricultural chemicals, except that the department may reimburse costs for the analysis of environmental parameters if that analysis is needed for the design or implementation of a corrective action.

(21)  Costs to analyze environmental samples for agricultural chemicals that are not reasonably suspected of having been discharged at the discharge site.

(22)  Costs for environmental audits, evaluations or appraisals, other than those needed for the effective planning and implementation of a corrective action.

(23)  Costs incurred by a responsible person because of a contractor's breach of contract.

(24)  Costs to prepare an application under s. ATCP 35.06 , to contest an application decision under s. ATCP 35.32 or to consult with the department on the application.

(25)  Air travel expenses.

(26)  Expense charges for meals, lodging, travel or other personal expenses that exceed actual, necessary or reasonable expenses.

(27)  Supplementary charges for expedited services, including expedited laboratory analysis, mail service or parcel delivery service, unless the department approves those charges in advance.

(28)  Contractor charges that are not based on services provided by the contractor and documented under s. ATCP 35.06 (1) (g) and (h) .

(29)  Interest expenses or other financing costs, except as calculated by the department under s. ATCP 35.25 .

(30)  The following costs related to landspreading under s. ATCP 35.03 :

(a) Compensation for crop damage, except as provided in s. ATCP 35.04 (4) (d) .

(b) Residue sampling for nutrients or pesticides, except as provided in s. ATCP 35.04 (4) (b) .

(c) Land rental or access charges, except as provided in s. ATCP 35.04 (4) (c) and (e) .

(31)  Costs for subcontractor service charges or markups.

(32)  Costs to plant or till land on which the responsible person landspreads soil or water under s. ATCP 35.03 , unless the department requires that land to be planted or tilled.

Cr. Register, August, 1994, No. 464 , eff. 9-1-94; am. (3) (intro.), (4), (15), (16), (24), (27), (28) and (30), cr. (3) (c), (31) and (32), Register, September, 1998, No. 513 , eff. 10-1-98; am. (5) and (6), r. and recr. (30), Register, October, 2000, No. 538 , eff. 11-1-00; CR 03-119 : am. (5), r. and recr. (13) Register October 2004 No. 586 , eff. 11-1-04; CR 10-122 : am. (19) Register July 2011 No. 667 , eff. 8-1-11.

Note

An example of a reasonable cost allocation formula may be obtained from the Department of Agriculture, Trade and Consumer Protection, Agricultural Resource Management Division, P.O. Box 8911, Madison WI 53708 Microsoft Windows NT 6.1.7601 Service Pack 1 See s. ATCP 35.30 related to duplicate reimbursement recovered as a result of a contested insurance claim. Microsoft Windows NT 6.1.7601 Service Pack 1