94.73 Agricultural chemical cleanup program.
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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
(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
(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
(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
(a)or may issue an order under s. 292.11
(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
(a)after the responsible person fails to comply with an order that was issued under s. 292.11
(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
(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.
(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
(c).
(b)Costs of reimbursing the department of natural resources for action taken under s. 292.11
(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.
(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.