Section 292.65. Dry cleaner environmental response program.

 

(1)   Definitions. In this section:

(b) “Case closure letter" means a letter provided by the department that states that, based on information available to the department, no further remedial action is necessary with respect to a dry cleaning product discharge.

(d) “Dry cleaning facility" means a facility for cleaning apparel or household fabrics for the general public using a dry cleaning product, other than a facility that is one of the following:

1. A coin-operated facility.

2. A facility that is located on a U.S. military installation.

3. An industrial laundry.

4. A commercial laundry.

5. A linen supply facility.

6. A facility that is located at a prison or other penal institution.

7. A facility that is located at a nonprofit hospital or at another nonprofit health care institution.

8. A facility that is located on property that is owned by the federal government or by this state or that is located on property that was owned by the federal government or by this state when the facility was operating.

9. A formal wear rental firm.

(e) “Dry cleaning product" means a hazardous substance used to clean apparel or household fabrics, except for a hazardous substance used to launder apparel or household fabrics.

(ek) “Formal wear" includes tuxedos, suits and dresses, but does not include costumes, table linens and household fabrics.

(em) “Formal wear rental firm" means a facility that rents formal wear to the general public and dry cleans only the formal wear that it rents to the general public.

(g) “Groundwater" has the meaning given in s. 281.75 (1) (c) .

(gm) “Immediate action" means a remedial action that is taken within a short time after a discharge of dry cleaning product occurs, or after the discovery of a discharge of dry cleaning product, to halt the discharge, contain or remove discharged dry cleaning product, or remove contaminated soil or water in order to restore the environment to the extent practicable and to minimize the harmful effects of the discharge to air, lands, and waters of the state and to eliminate any imminent threat to public health, safety, or welfare.

(gs) “Interim action" means a remedial action that is taken to contain or stabilize a discharge of a dry cleaning product, in order to minimize any threats to public health, safety, or welfare or to the environment, while other remedial actions are being planned.

(gv) “Launder" means to use water and detergent as the main process for cleaning apparel or household fabrics.

(h) “Operator" means any of the following:

1. A person who holds the license under s. 77.9961 (2) for a dry cleaning facility.

2. A subsidiary or parent corporation of the person specified under subd. 1.

3. A person who operated a dry cleaning facility that ceased operating before October 14, 1997.

4. A person who operated a dry cleaning facility that ceased operation after October 13, 1997, but that was licensed under s. 77.9961 (2) before it ceased operation.

(i) “Owner" means any of the following:

1. A person who owns, or has possession or control of, and who receives or received direct or indirect consideration from the operation of, any of the following:

a. A dry cleaning facility that is licensed under s. 77.9961 (2) .

b. A dry cleaning facility that has ceased operation but that, if it ceased operation on or after October 14, 1997, was licensed under s. 77.9961 (2) before it ceased operation.

2. A subsidiary or parent corporation of the person specified under subd. 1.

3. A person who owns the property on which one of the following is located:

a. A dry cleaning facility that is licensed under s. 77.9961 (2) .

b. A dry cleaning facility that has ceased operation but that was licensed under s. 77.9961 (2) before it ceased operation and was licensed and operating while the person owned the property.

(j) “Program year" means the period beginning on July 1, and ending on the following June 30.

(L) “Service provider" means a consultant, testing laboratory, monitoring well installer, soil boring contractor, other contractor or any other person who provides a product or service for which an application for reimbursement has been or will be filed under this section, or a subcontractor of such a person.

(m) “Subsidiary or parent corporation" means a business entity, including a subsidiary, parent corporation or other business arrangement, that has elements of common ownership or control or that uses a long-term contractual arrangement with a person to avoid direct responsibility for conditions at a dry cleaning facility.

(3)   Duties of the department.

(a) The department shall promulgate rules for the administration of the program under this section.

(am)

1. The department shall establish a method for determining the order in which it pays awards under this section. Except as provided in subd. 2. , the method shall be based on environmental factors and on the order in which applications are received.

2. The department shall pay an award for immediate action activities before it pays other awards.

(b) The department shall promote the program under this section to persons who may be eligible for awards.

(c) The department shall allocate 9.7 percent of the funds appropriated under s. 20.370 (6) (eq) in each fiscal year for awards for immediate action activities and applications that exceed the amount anticipated.

(d) The department shall keep records and statistics on the program under this section and shall periodically evaluate the effectiveness of the program.

(e) No later than January 1, 2002, the department shall complete a review of the program under this section and shall submit a report on the results of the review to the joint committee on finance and to the appropriate standing committees of the legislature, as determined by the speaker of the house and the president of the senate, under s. 13.172 (3) . The report shall include the department's recommendations for changes to the program. The review shall include consideration of whether the program should be expanded or ended, whether the program should be incorporated into a broader program of financial assistance for the remediation of environmental contamination and whether private insurance coverage should be required for any dry cleaning facilities.

(4)   Process; eligibility.

(a) General requirements. To be eligible for an award under this section, the owner or operator of a dry cleaning facility shall comply with pars. (b) , (c) , (e) , (f) and (j) and the other requirements of this section applicable to the owner or operator.

(b) Report. An owner or operator shall report a dry cleaning product discharge to the department in a timely manner, as provided in s. 292.11 .

(c) Notification of potential claim.

1. An owner or operator shall notify the department, before conducting a site investigation or any remedial action activity, of the potential for submitting an application for an award under this section, except as provided in subd. 2.

2. Subdivision 1. does not apply to an owner or operator who began a site investigation or remedial action activity before October 14, 1997.

(d) Information from department. When an owner or operator notifies the department under par. (c) 1. , the department shall provide the owner or operator with information on the program under this section and the department's estimate of the eligibility of the owner or operator for an award under this section.

(e) Investigation. After notifying the department under par. (c) 1. , if applicable, and before conducting remedial action activities, an owner or operator shall complete an investigation to determine the extent of environmental impact of the dry cleaning product discharge, except as provided in pars. (g) and (h) .

(f) Remedial action plan. After completing the investigation under par. (e) and before conducting remedial action activities, an owner or operator shall prepare a remedial action plan, based on the investigation under par. (e) , that identifies specific remedial action activities proposed to be conducted, except as provided in pars. (g) and (h) .

(g) Immediate action. An owner or operator is not required to complete an investigation or prepare a remedial action plan before conducting an immediate action activity if the department determines that an immediate action is necessary.

(h) Interim action. An owner or operator is not required to complete an investigation or prepare a remedial action plan before conducting an interim action activity if the department determines that an interim action is necessary.

(i) Review of site investigation and remedial action plan. The department shall, at the request of an owner or operator, review the site investigation results and the remedial action plan and advise the owner or operator on the adequacy of the proposed remedial action activities in meeting the requirements of this section. The department shall complete the review of the site investigation and remedial action plan within 45 days. The department shall also provide an estimate of when funding will be available to pay an award for remedial action conducted in response to the dry cleaning product discharge.

(j) Remedial action. The owner or operator shall conduct all remedial action activities that are required under this section in response to the dry cleaning product discharge, including all of the following:

1. Recovering any recoverable dry cleaning product from the environment.

2. Managing any residual solid or hazardous waste in a manner consistent with local, state and federal law.

3. Restoring groundwater according to the standards promulgated by the department under ss. 160.07 and 160.09 .

(k) Agents. An owner or operator may enter into a written agreement with another person under which that other person acts as an agent for the owner or operator in conducting the activities under pars. (e) to (j) . If an agreement is entered into under this paragraph, all requirements applicable to an owner or operator under par. (m) and subs. (8) (a) , (8m) , and (12) apply to the agent. The owner or operator or the agent may submit the application for an award under this section.

(L) Awards for dry cleaning facilities on tribal trust lands. The owner or operator of a dry cleaning facility located on trust lands of an American Indian tribe may be eligible for an award under this section if the owner or operator otherwise satisfies the requirements of this subsection and complies with the rules promulgated under this section and any other rules promulgated by the department concerning dry cleaning facilities.

(m) Notification of applications and receipt of funds. An owner or operator shall notify the department of any application, including any insurance claim, made to obtain funds to cover eligible costs or to obtain a tax credit based on eligible costs, the status of the application, and, if the owner or operator has received any funds or any tax credit arising from the application, the amount of funds or tax credit received.

(5)   Enhanced pollution prevention measures.

(a)

1. The owner or operator of a dry cleaning facility on which construction begins after October 14, 1997, is not eligible for an award under this section unless the owner or operator has implemented the enhanced pollution prevention measures described in par. (b) .

2. The owner or operator of a dry cleaning facility on which construction began on or before October 14, 1997, is ineligible for an award under this section with respect to a discharge that occurs on or after the 91st day after the day on which the department issues a case closure letter with respect to an earlier discharge of dry cleaning solvent from the dry cleaning facility, unless the owner or operator has implemented the enhanced pollution prevention measures described in par. (b) .

(b) An owner or operator who is required to implement enhanced pollution prevention measures under par. (a) shall demonstrate all of the following:

3. That each machine or other piece of equipment in which dry cleaning product is used, or the entire area in which those machines or pieces of equipment are located, is surrounded by a containment dike or other containment structure that is able to contain any leak, spill, or other release of dry cleaning product from the machines or other pieces of equipment.

4. That the floor within any area surrounded by a dike or other containment structure under subd. 3. is sealed or is otherwise impervious to dry cleaning product.

(c) The owner or operator of a dry cleaning facility is not eligible for an award under this section unless the owner or operator has implemented the following enhanced pollution prevention measures:

1. That the owner or operator manages all wastes that are generated at the dry cleaning facility and that contain dry cleaning product as hazardous wastes in compliance with ch. 291 and 42 USC 6901 to 6991i .

2. That the dry cleaning facility does not discharge dry cleaning product or wastewater from dry cleaning machines into any sanitary sewer or septic tank or into the waters of this state.

3. That any perchloroethylene delivered to the dry cleaning facility is delivered by means of a closed, direct-coupled delivery system.

(7)   Eligible costs.

(a) General. Subject to pars. (c) , (ce) , (cm) , and (d) , eligible costs for an award under this section include reasonable and necessary costs incurred by the owner or operator of a dry cleaning facility because of a discharge of dry cleaning product at the dry cleaning facility for the following items only:

1. Removal of dry cleaning solvents from surface waters, groundwater or soil.

2. Investigation and assessment of contamination caused by a dry cleaning product discharge from a dry cleaning facility.

3. Preparation of remedial action plans.

4. Removal of contaminated soils.

5. Soil and groundwater treatment and disposal.

6. Environmental monitoring.

7. Laboratory services.

8. Maintenance of equipment for dry cleaning product recovery performed as part of remedial action activities.

9. Restoration or replacement of a private or public potable water supply.

10. Restoration of environmental quality.

11. Contractor costs for remedial action activities.

12. Inspection and supervision.

14. Other costs identified by the department as reasonable and necessary for proper investigation, remedial action planning and remedial action activities to meet the requirements of s. 292.11 .

(b) Costs incurred by 3rd parties.

1. In this paragraph, “ 3rd party" means a person who is not an owner or operator or the agent of an owner or operator.

2. Eligible costs for an award under this section include reasonable and necessary costs, up to $15,000, incurred by a 3rd party in the discovery of a discharge of dry cleaning product from an eligible owner's or operator's dry cleaning facility before the eligible owner or operator discovered the discharge, notwithstanding noncompliance with the procedural requirements of sub. (4) in relation to the costs incurred by the 3rd party.

(c) Exclusions from eligible costs. Eligible costs for an award under this section do not include the following:

1. Costs incurred before October 14, 1997.

2. Costs of retrofitting or replacing dry cleaning equipment.

3. Other costs that the department determines to be associated with, but not integral to, the investigation and remediation of a dry cleaning product discharge from a dry cleaning facility.

4. Costs that the department determines to be unreasonable or unnecessary to carry out the remedial action activities as specified in the remedial action plan.

5. Costs for investigations or remedial action activities conducted outside this state.

6. Costs of financing eligible activities.

(ce) Usual and customary costs. The department may establish a schedule of usual and customary costs for any items under par. (a) and may use that schedule to determine the amount of an applicant's eligible costs.

(cm) Eligible cost; service providers. The department may promulgate rules under which the department selects service providers to provide investigation or remedial action services in specified areas. The rules may provide that the costs of a service for which the department has selected a service provider in an area are not eligible costs under par. (a) , or that eligible costs are limited to the amount that the selected service provider would have charged, if an owner or operator of a dry cleaning facility located in that area uses a service provider other than the service provider selected by the department to perform the services. If the department selects service providers under this paragraph, it shall regularly update the list of service providers that it selects.

(d) Discharges from multiple activities. If hazardous substances are discharged at a dry cleaning facility as a result of dry cleaning operations and as a result of other activities, eligible costs under this section are limited to activities necessitated by the discharge of dry cleaning product.

(8)   Awards.

(a) Application. An owner or operator shall submit an application on a form provided by the department. An owner or operator may not submit an application if the owner or operator submits the notification of potential claim under sub. (4) (c) after August 30, 2008. The department shall authorize owners and operators to apply for awards at stages in the process under sub. (4) that the department specifies by rule. An application shall include all of the following documentation of activities, plans, and expenditures associated with the eligible costs incurred because of a dry cleaning product discharge from a dry cleaning facility:

1. A record of investigation results and data interpretation.

2. A remedial action plan.

3. Contracts for eligible costs incurred because of the discharge and records of the contract negotiations.

4. Accounts, invoices, sales receipts or other records documenting actual eligible costs incurred because of the discharge.

4m. If the owner or operator receives any funds arising from an application, including an insurance claim, for any eligible costs or a tax credit based on eligible costs, a record of the payment.

5. Other records and statements that the department determines to be necessary to complete the application.

(b) Acknowledgement. The department shall acknowledge, in writing, the receipt of an application under par. (a) .

(c) Approval. Subject to par. (d) , if the department finds that an applicant meets the requirements of this section and rules promulgated under this section, the department shall make an award as provided in this subsection to the applicant for eligible costs. The department may not make an award for an investigation before it approves the investigation. The department may not make an award for remedial action activities before it approves the remedial action activities.

(d) Denial of applications. The department shall deny an application under this section if any of the following applies:

1. The application is not within the scope of this section.

2. The applicant submits a fraudulent application.

3. The applicant has been grossly negligent in the maintenance of the dry cleaning facility.

4. The applicant intentionally damaged the dry cleaning equipment.

5. The applicant falsified records.

6. The applicant willfully failed to comply with laws or rules of this state concerning the use or disposal of dry cleaning solvents.

7. All of the fees, interest, and penalties due under ss. 77.9961 , 77.9962 , and 77.9964 have not been paid unless an agreement has been entered into with the department of revenue establishing a payment schedule for all of the fees, interest, and penalties due.

8. The dry cleaning product discharge was caused on or after October 14, 1997, by a person who provided services or products to the owner or operator or to a prior owner or operator of the dry cleaning facility, including a person who provided perchloroethylene to the owner or operator or prior owner or operator of a dry cleaning facility using a system other than a closed, direct-coupled delivery system.

(e) Deductible. The department may make an award to the owner or operator of a dry cleaning facility only for eligible costs incurred at each dry cleaning facility that exceed the following deductible:

1. If eligible costs are $200,000 or less, $10,000.

2. If eligible costs exceed $200,000 but do not exceed $400,000, $10,000 plus 8 percent of the amount by which eligible costs exceed $200,000.

3. If eligible costs exceed $400,000, $26,000 plus 10 percent of the amount by which eligible costs exceed $400,000.

(f) Maximum awards. The department may not issue financial assistance under this section for reimbursement for costs incurred at a single dry cleaning facility that totals more than $500,000.

(g) Waiver of deductible. Notwithstanding par. (e) , the department may waive the requirement that an owner or operator pay the deductible amount if the department determines that the owner or operator is unable to pay. If the department waives the requirement that an owner or operator pay the deductible, the department shall record a statement of lien with the register of deeds of the county in which the dry cleaning facility is located. If the department records the statement of lien, the department has a lien on the property on which the dry cleaning facility is located in the amount of the deductible that was waived. The property remains subject to the lien until that amount is paid in full.

(h) Contributory negligence. The department may not diminish or deny an award under this section as a result of negligence attributable to the applicant or any person who is entitled to submit an application, except as provided in par. (d) 3.

(i) Assignment of awards. The filing by an applicant with the department of an assignment of an award under this section to a person who loans money to the applicant for the purpose of conducting activities required under sub. (4) creates and perfects a lien in favor of the assignee in the proceeds of the award. The lien secures all principal, interest, fees, costs and expenses of the assignee related to the loan. The lien under this paragraph has priority over any previously existing or subsequently created lien, assignment, security interest or other interest in the proceeds of the award.

(j) Reduction of awards.

1. If an owner or operator prepares and submits an application that includes ineligible costs that are identified under subd. 3. , the department shall calculate the award by determining the amount that the award would otherwise be under pars. (e) and (f) based only on the eligible costs and then by reducing that amount by 50 percent of the ineligible costs under subd. 2. that are included in the application.

2. If a person other than an owner or operator prepares an application that is submitted by the owner or operator and that includes ineligible costs that are identified under subd. 3. , the person shall pay to the department an amount equal to 50 percent of the ineligible costs identified under subd. 3. that are included in the application. A person, other than an owner or operator, who prepares an application may not charge the owner or operator for any amount that the person is required to pay under this subdivision. Payments made under this subdivision shall be deposited in the dry cleaner environmental response fund.

3. The department shall promulgate a rule identifying the ineligible costs to which subds. 1. and 2. apply.

3m. If a person other than an owner or operator prepares a statement that is submitted by the owner or operator to obtain payment for costs incurred by a 3rd party under sub. (7) (b) and the statement includes ineligible costs, the person shall pay to the department an amount equal to 50 percent of the amount of ineligible costs included in the statement. Payments made under this subdivision shall be deposited in the dry cleaner environmental response fund.

4. If, prior to receiving an award under this section, an owner or operator receives payment from another person, including an insurance company, arising out of an application for payment of any eligible costs or receives a tax credit based on any eligible costs, the department may not reimburse the owner or operator any amount that exceeds the difference between the amount of the award calculated under subd. 1. or 2. and pars. (e) and (f) and the amount by which the payment exceeds the sum of the deductible and the amount by which the amount calculated under par. (e) exceeds the maximum award under par. (f) .

(8m)   Reimbursement of payments and tax credits. If, after an owner or operator receives an award under this section, the owner or operator receives payment from another person, including an insurance company, arising out of an application for payment of any eligible costs or receives a tax credit based on any eligible costs, the owner or operator shall pay to the department any amount by which the payment or tax credit exceeds the difference between the total amount of eligible costs and the amount of the award, but not more than the amount of the award. The amounts collected by the department under this subsection shall be deposited in the dry cleaner environmental response fund.

(9)   Recovery of awards.

(a) Right of action. A right of action under this section shall accrue to the state against an owner or operator only if the owner or operator submits a fraudulent application or does not meet the requirements under this section and if an award is issued under this section to the owner or operator for eligible costs under this section.

(b) Action to recover awards. The attorney general shall take appropriate actions to recover awards to which the state is entitled under par. (a) . The department shall request that the attorney general take action if the department discovers a fraudulent application after an award is issued.

(c) Disposition of funds. The net proceeds of the recovery under par. (b) shall be paid into the dry cleaner environmental response fund.

(10)   Liability.

(a) No common law liability, and no statutory liability that is provided in a statute other than this section, for damages resulting from a dry cleaning facility is affected by this section. Except as provided in par. (b) , the authority, power and remedies provided in this section are in addition to any authority, power or remedy provided in any statute other than this section or provided at common law.

(b) An award under this section is the exclusive method for the recovery of the amount of eligible costs equal to the amount of the award that may be issued under this section.

(c) If a person conducts a remedial action activity for a discharge at a dry cleaning facility site, whether or not the person files an application under this section, the remedial action activity conducted and any application filed under this section are not evidence of liability or an admission of liability for any potential or actual environmental pollution.

(11)   Environmental fund reimbursement. If the department expends funds from the environmental fund under s. 292.11 (7) (a) or 292.31 (3) (b) because of a discharge of dry cleaning product at a dry cleaning facility and there is a person who would be an eligible owner or operator under this section for the dry cleaning facility, the department shall transfer from the appropriation account under s. 20.370 (6) (eq) to the environmental fund an amount equal to the amount expended under s. 292.11 (7) (a) or 292.31 (3) (b) less the applicable deductible under sub. (8) (e) . The department shall make transfers under this subsection when the department determines that sufficient funds are available in the appropriation account under s. 20.370 (6) (eq) .

(12)   Records.

(a) The department shall promulgate rules prescribing requirements for the records to be maintained by an owner, operator or service provider and the periods for which they must retain those records.

(b) The department may inspect any document in the possession of an owner, operator or service provider or any other person if the document is relevant to an application for reimbursement under this section.

(12m)   Prohibition. No person may knowingly make or cause to be made a false or misleading statement in any document submitted to the department under this section.

(13)   Council. The dry cleaner environmental response council shall advise the department concerning the program under this section. The dry cleaner environmental response council shall evaluate the program under this section at least every 5 years, using criteria developed by the council.

(14)   Sunset. This section does not apply after June 30, 2032.

1997 a. 27 ; 1999 a. 9 , 185 ss. 143 to 145 , 188 to 190 ; 2001 a. 16 ; 2003 a. 312 . Cross-reference: See also ch. NR 169 , Wis. adm. code.