Section NR 169.25 - Legal ramifications of awards(1) CONTRIBUTORY NEGLIGENCE. The department may not diminish or deny an award under this chapter as a result of negligence attributable to the applicant or any person who is entitled to submit an application, except as provided in s. 292.65(8) (h), Stats. Note: Section 292.65(8) (h), Stats., cross references s. 292.65(8) (d) 3, Stats., which states that applications from applicants who were grossly negligent in maintaining the dry cleaning facility in question shall be denied.
(2) ASSIGNMENT OF AWARDS. Awards may be assigned as provided in s. 292.65(8) (i), Stats. Note: Section 292.65(8) (i), Stats., provides that 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 and has priority over any previously existing or subsequently created lien, assignment, security interest or other interest in the proceeds of the award.
(3) REDUCTION OF AWARDS. Awards based on applications that contain ineligible costs under s. NR 169.11(3) shall be adjusted as provided in s. 292.65(8) (j), Stats. Note: Section 292.65(8) (j), Stats., provides that:
1. If an owner or operator prepares and submits an application that includes ineligible costs that are identified by the department by rule, 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% of the ineligible costs identified by rule 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 by rule, the person shall pay to the department an amount equal to 50% of the ineligible costs identified by rule 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.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% of the amount of ineligible costs included in the statement.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 s. 292.65(8) (e), (f), and (j) 1. and 2., Stats., and the amount by which the payment exceeds the sum of the deductible and the amount by which the amount calculated under s. 292.65(8) (e), Stats., exceeds the maximum award under s. 292.65(8) (f), Stats.(4) RECOVERY OF AWARDS. Awards shall be recovered as provided in s. 292.65(9), Stats. Note: Section 292.65(9), Stats., provides that:
(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.(5) LIABILITY. This chapter does not create liability except as provided in s. 292.65(10), Stats. Note: Section 292.65(10), Stats., provides that:
(a) No common law liability, and no statutory liability that is provided in a statute other than s. 292.65, Stats., 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.(6) PENALTIES. No person may knowingly make or cause to be made a false or misleading statement in any document submitted to the department under this chapter. Penalties for making the statements shall be assessed as indicated in s. 292.99(1m) and (2), Stats.Wis. Admin. Code Department of Natural Resources NR 169.25
CR 04-128: cr. Register July 2005 No. 595, eff. 8-1-05.