94.73 Agricultural chemical cleanup program.

(1) Definitions. In this section:

(a) “Agricultural chemical" means a substance that is a fertilizer or a nonhousehold pesticide and that is a hazardous substance, as defined in s. 299.01 (6).

(b) “Corrective action" means action that is taken in response to a discharge and that is necessary to restore the environment to the extent practicable and to minimize the harmful effects of the discharge to the air, lands or waters of this state. “Corrective action" includes action taken or ordered by the department of natural resources under s. 292.11 (7) in response to a discharge, but does not include action ordered by the department of natural resources under s. 291.37 (2) or 291.95. “Corrective action" does not include action taken, or ordered to be completed, before January 1, 1989.

(c) “Corrective action costs" means reasonable costs incurred in taking corrective action.

(e) “Discharge" means the discharge, as defined in s. 292.01 (3), of an agricultural chemical.

(f) “Fertilizer" has the meaning given in s. 94.64 (1) (e), except that it does not include nitrates or other forms of nitrogen found in the environment that cannot be attributed to a discharge.

(g) “Nonhousehold pesticide" has the meaning given in s. 94.681 (1) (c).

(h) “Responsible person" means a person who owns or controls an agricultural chemical that is discharged, a person who causes a discharge or a person on whose property an agricultural chemical is discharged or any of their successors in interest.

(2) Corrective action ordered or authorized by the department.

(a) The department may issue an order requiring a responsible person to take corrective action. Except as provided in a memorandum of understanding under sub. (12), if a discharge involves a hazardous substance that may also become a hazardous waste, the department and the department of natural resources shall consult to determine whether corrective action should be taken under this section or s. 291.37 (2), 291.95 (1) or 292.31 (3).

(b) An order under par. (a) shall include all of the following:

1. The name and address of the responsible person.

2. A description of the property on which the responsible person is required to take the corrective action.

3. A description of the corrective action required to be taken.

4. A date by which the responsible person is required to complete the corrective action.

(bg) The corrective action ordered under par. (a) may include any of the following:

1. Investigation to determine the extent and severity of environmental contamination caused by the discharge.

2. Containment, removal, treatment or monitoring of environmental contamination caused by the discharge if the containment, removal, treatment or monitoring complies with chs. 281 to 285 and 289 to 299.

3. Transportation, storage, land application or disposal of contaminated materials, in compliance with chs. 281 to 285 and 289 to 299, except s. 281.48.

(c) The department may issue an order under par. (a) on a summary basis without prior notice or a prior hearing if the department determines that a summary order is necessary to prevent imminent harm to public health or safety or to the environment. If the recipient of a summary order requests a hearing on that order, the department shall hold a hearing within 10 days after it receives the request unless the recipient agrees to a later hearing date. The department is not required to stay enforcement of a summary order issued under this paragraph pending the outcome of the hearing. If the responsible person prevails after a hearing, the department shall reimburse the responsible person from the appropriation under s. 20.115 (7) (wm) for the corrective action costs incurred as the result of the department's order.

(d) Soil or water removed from a discharge site as part of a corrective action may only be spread on land if that spreading on land is in compliance with chs. 281 to 285 and 289 to 299 and if the department has given its written authorization.

(2m) Corrective action ordered by the department of natural resources. The department of natural resources may take action under s. 292.11 (7) (a) or may issue an order under s. 292.11 (7) (c) in response to a discharge only if one or more of the following apply:

(a) The action or order is necessary in an emergency to prevent or mitigate an imminent hazard to public health, safety or welfare or to the environment.

(b) The department of agriculture, trade and consumer protection requests the department of natural resources to take the action or issue the order.

(c) The secretary of natural resources approves the action or order in advance after notice to the secretary of agriculture, trade and consumer protection.

(d) The department of natural resources takes action under s. 292.11 (7) (a) after the responsible person fails to comply with an order that was issued under s. 292.11 (7) (c) in compliance with this subsection.

(e) The department of natural resources takes the action or issues the order in compliance with a memorandum of understanding under sub. (12) between the department of agriculture, trade and consumer protection and the department of natural resources.

(3) Eligibility for reimbursement. A responsible person who takes corrective action may apply to the department for reimbursement of corrective action costs. Except as provided in sub. (3m), an applicant is eligible for reimbursement if all of the following conditions are met:

(a) The applicant submits an application that complies with sub. (5) within 3 years after incurring the corrective action costs or after October 14, 1997, whichever is later.

(b) The department finds that the corrective action costs incurred by the applicant are reasonable and the corrective action taken is necessary.

(c) The applicant demonstrates, to the department's satisfaction, that the corrective action costs are not covered by insurance and have not been reimbursed from other sources.

(d) The applicant has complied with every corrective action order issued to the applicant by the department under sub. (2) or the department of natural resources under s. 292.11 (7) (c).

(f) The applicant, upon discovery of the discharge, promptly reported the discharge to the department or, if the applicant was required to report the discharge under s. 292.11 (2), to the department of natural resources.

(g) If the discharge occurred at a pesticide mixing and loading site owned or operated by the applicant, the applicant has fully complied with rules promulgated by the department under sub. (11) (d) requiring registration of pesticide mixing and loading sites.

(h) If the applicant was required to submit a work plan under sub. (4), the corrective action taken by the applicant was in accordance with a work plan approved by the department.

(3m) Costs not eligible for reimbursement. An applicant under sub. (3) is not eligible for reimbursement of any of the following costs:

(a) Costs for corrective action taken in response to a discharge that is an intentional use of an agricultural chemical for agricultural purposes, unless the corrective action is ordered by the department under sub. (2) or by the department of natural resources under s. 292.11 (7) (c).

(b) Costs of reimbursing the department of natural resources for action taken under s. 292.11 (7) (a) or 292.31 (1), (3) or (7) because the applicant failed to respond adequately to a discharge.

(c) Costs for corrective action that a pesticide manufacturer or labeler takes in response to a discharge by that pesticide manufacturer or labeler.

(d) Costs for corrective action taken in response to a discharge that occurs while the agricultural chemical is being held or transported by a common carrier.

(e) Costs for corrective action taken in response to a discharge from a facility that is required to be licensed under s. 289.31 or that would be required to be licensed except that the department of natural resources has issued a specific exemption under s. 289.43 or rules promulgated under s. 289.05 (1) or (2).

(f) The cost of an activity that the department determines does not contribute to cleaning up a discharge.

(g) A cost related to the repair, replacement or upgrading of a facility, structure or equipment, except that, if a responsible person who applies for reimbursement demonstrates to the department's satisfaction that the removal of an existing structure is the least expensive corrective action alternative, the department may reimburse the responsible person the depreciated value of the structure as determined by the department by rule.

(h) Loss of income.

(i) Attorney fees.

(j) Costs of permanent relocation of residents.

(k) Decreased property values.

(L) The cost of a responsible person's time spent in planning and implementing the corrective action.

(m) Costs incurred for the review of corrective action work plans.

(n) Costs of aesthetic improvements.

(o) The cost of corrective action that is not in compliance with federal, state or local safety codes.

(p) A cost payable under an insurance or other contract.

(q) The cost of replacing discharged agricultural chemicals.

(r) The cost of providing alternative sources of drinking water, except that, subject to sub. (6) (b) to (f), the department may reimburse a responsible person who applies for reimbursement a total of not more than $50,000 for the replacement or restoration of private wells or for connection to a public or private water source if the department or the department of natural resources orders the well replacement or restoration or the connection in response to a discharge.

(s) Liability claims.

(t) Costs incurred by any federal, state or local governmental entity.

(u) Corrective action costs incurred by a responsible person in response to a discharge caused by that responsible person's intentional or grossly negligent violation of law, including ss. 94.645 or 94.67 to 94.71, a rule promulgated under those sections or an order issued under those sections.

(v) Other costs excluded by the department by rule.

(4) Work plan requirements.

(a) Except as provided in par. (d), no responsible person may receive reimbursement for corrective action costs exceeding $7,500 unless the responsible person submits to the department in writing, and the department approves, a work plan for the corrective action before the corrective action is taken.

(b) Except as agreed under sub. (12), the department of agriculture, trade and consumer protection shall promptly furnish the department of natural resources with a copy of each work plan submitted to the department of agriculture, trade and consumer protection under par. (a) for comment by the department of natural resources. Within 14 days after it receives a copy of a work plan or within a different time period agreed to under sub. (12), the department of natural resources may provide the department of agriculture, trade and consumer protection with any comments of the department of natural resources on the work plan. If the department of natural resources timely submits written comments on a proposed work plan, the department of agriculture, trade and consumer protection shall either incorporate those comments into the approved work plan or give the department of natural resources a written explanation of why the comments were not incorporated.

(c) The department shall approve or reject a work plan submitted under par. (a) within 30 days after its submission. If the department fails to approve or reject the work plan within 30 days after its submission, the work plan approval requirement in par. (a) no longer applies.

(d) This subsection does not apply to any of the following:

1. A reasonable and necessary corrective action taken on an emergency basis.

2. A corrective action taken before August 12, 1993.

(5) Application.

(a) A responsible person who seeks reimbursement for corrective action costs shall submit an application to the department. The application shall be made on a form provided, and shall contain information reasonably required, by the department.

(b) A responsible person may not submit more than one application under par. (a) within a 12-month period for the same discharge site.

(c) Within 10 days from the date of the receipt of an application under par. (a), the department shall notify the applicant of the receipt of the application. The department shall grant or deny the application within 90 days after receipt of the application unless the applicant agrees to an extension.

(d) Before or after the department receives an application under par. (a), the department may issue a preliminary opinion on whether an applicant is eligible for reimbursement of corrective action costs. The opinion is not binding on the department.

(e) No person may make a false statement or misrepresentation on an application submitted under this section. A person who makes a false statement or misrepresentation on an application related to a corrective action is ineligible for reimbursement related to that corrective action and is ineligible for any reimbursement related to any other corrective action taken or ordered within 5 years after the date of the false statement or misrepresentation. If the responsible person has received any reimbursement for which the responsible person is ineligible under this paragraph, the responsible person shall refund the full amount of that reimbursement to the department. The amounts refunded to the department under this paragraph shall be deposited in the agricultural chemical cleanup fund.

(6) Amount of reimbursement.

(a) If the department determines that a responsible person is eligible for reimbursement of corrective action costs under sub. (3), the department shall authorize reimbursement in the amount specified in this subsection and in the manner provided in sub. (7).

(am) If more than one responsible person is eligible for reimbursement under sub. (3) for corrective action taken in response to one or more discharges at the same site, the combined amount paid to those responsible persons may not exceed the maximum amount specified for a single responsible person under this section, except as provided by the department by rule. The department shall allocate payments among the responsible persons according to rules promulgated by the department.

(b) Except as provided in pars. (c) and (e), the department shall reimburse a responsible person an amount equal to 75 percent of the corrective action costs incurred for each discharge site that are greater than $3,000 and less than $400,000 for costs incurred before July 1, 2017, or that are greater than $3,000 and less than $650,000 for costs incurred on or after July 1, 2017.

(c) Except as provided in par. (e), the department shall reimburse a responsible person an amount equal to 75 percent of the corrective action costs incurred for each discharge site that are greater than $7,500 and less than $400,000 for costs incurred before July 1, 2017, or that are greater than $7,500 and less than $650,000 for costs incurred on or after July 1, 2017, if any of the following applies:

1. The responsible person is required to be licensed under ss. 94.67 to 94.71.

2. The responsible person employs more than 25 persons.

3. The responsible person has gross annual sales of more than $2,500,000.

(d) For the purposes for pars. (b) and (c), a discharge that occurs in the course of transporting an agricultural chemical is considered to have occurred at the site from which the agricultural chemical was being transported if the site from which the agricultural chemical was being transported is under the ownership or control of the person transporting the agricultural chemical.

(e) The department may not reimburse corrective action costs that exceed $100,000 for any one discharge for which groundwater remediation is not ordered unless the criteria in rules promulgated under par. (f) are satisfied.

(f) The department may promulgate rules under which it may provide reimbursement under pars. (b) and (c) for corrective action costs that exceed $100,000 at a site at which groundwater remediation is not ordered if the applicant obtains the approval of the department before incurring the costs and if the contamination is extensive or complex cleanup strategies are required. The rules shall establish criteria for exceeding the $100,000 limit, such as the size of the area contaminated or the type of agricultural chemical that is involved.

(7) Payment.

(a) The department may make payments to a responsible person who is eligible for reimbursement under sub. (3) if the department has authorized reimbursement to that person under sub. (6). The department shall make payment from the appropriation account under s. 20.115 (7) (wm), subject to the availability of funds in that appropriation account. If there are insufficient funds to pay the full amounts authorized under sub. (6) to all eligible responsible persons, the department shall distribute payments in the order in which applications were received, unless the department specifies, by rule, a different order of payment.

(b) The department may promulgate rules specifying the procedure by which, and the order in which, it will distribute payments under par. (a). The department may establish distribution priorities or formulas based on the severity of contamination, the time elapsed since corrective action costs were incurred or other factors that the department considers appropriate.

(8) Subrogation. The department is entitled to the right of subrogation for the reimbursement of corrective action costs to the extent that a responsible person who receives reimbursement of corrective action costs may recover the costs from a 3rd party. The amounts collected by the department under this subsection shall be deposited in the agricultural chemical cleanup fund.

(11) Rules. The department shall promulgate rules to implement this section. The department may promulgate rules regarding all of the following:

(a) The form of the application required to be filed with the department by persons seeking reimbursement of corrective action costs.

(b) The procedures to be used by the department in determining eligibility for and the amount of reimbursement for corrective action costs.

(c) The procedures to be used in making annual payments under sub. (7).

(d) Registration requirements for persons who own or operate pesticide mixing and loading sites.

(e) Reasonable and customary charges for corrective action costs.

(f) Payment priorities under sub. (7) among eligible responsible persons.

(g) Requirements related to the contents of orders under sub. (2) or work plans under sub. (4) (a).

(h) Corrective action costs that are not eligible for reimbursement under this section.

(12) Memorandum of understanding. The department and the department of natural resources shall enter into a memorandum of understanding establishing their respective functions in the administration of this section. The memorandum of understanding shall establish procedures to ensure that corrective actions taken under this section are consistent with actions taken under s. 292.11 (7). The department and the department of natural resources may request that the secretary of administration provide assistance in accomplishing the memorandum of understanding.

(12m) Sample collection and analysis. For the purpose of investigating a discharge or exercising its authority under this section, the department may collect and analyze samples of plants, soil, surface water, groundwater and other material.

(13) Penalty. Any person who violates this section or an order issued or rule promulgated under this section shall forfeit not less than $10 nor more than $5,000 for each violation. Each day of continued violation is a separate offense.

(14) Enforcement. The department, the department of justice at the request of the department or any district attorney at the request of the department may bring an action in the name of the state to recover a forfeiture under sub. (13) or to seek an injunction restraining the violation of an order issued by the department under this section.

(15) Surcharge adjustments.

(a) On May 1 annually, the department shall determine the amount available in the agricultural chemical cleanup fund.

(b) If the amount determined under par. (a) is more than $1,500,000, the surcharges for the subsequent year shall be as follows:

1. Under s. 94.64 (3r) (b) 1. and 2., $0.

2. Under s. 94.64 (3r) (b) 3., $0.

3. Under s. 94.64 (4) (a) 5., $0.

4. Under s. 94.681 (3), $0.

5. Under s. 94.685 (3) (a) 2., $0.

6. Under s. 94.703 (3) (a) 2., $0.

7. Under s. 94.703 (3) (a) 3., $0.

8. Under s. 94.704 (3) (a) 2., $0.

(c) If the amount determined under par. (a) is $1,500,000 or less, but more than $750,000, the surcharges for the subsequent license year shall be as follows:

1. Under s. 94.64 (3r) (b) 1. and 2., $10.

2. Under s. 94.64 (3r) (b) 3., $12.50.

3. Under s. 94.64 (4) (a) 5., 5 cents per ton.

4. Under s. 94.681 (3), $15.

5. Under s. 94.685 (3) (a) 2., $10.

6. Under s. 94.703 (3) (a) 2., $10.

7. Under s. 94.703 (3) (a) 3., $12.50.

8. Under s. 94.704 (3) (a) 2., $5.

History: 1993 a. 16, 437; 1995 a. 27, 227; 1997 a. 27, 86; 2001 a. 16; 2003 a. 33; 2005 a. 347; 2007 a. 20; 2013 a. 20; 2017 a. 59.

NOTE: 2005 Wis. Act 347, which affected this section, contains extensive explanatory notes.