Section 292.63. Petroleum storage remedial action; financial assistance.

 

(1)   Definitions. In this section:

(ad) “Bodily injury" does not include those liabilities which are excluded from coverage in liability insurance policies for bodily injury other than liabilities excluded because they are caused by a petroleum product discharge from a petroleum product storage system.

(bm) “Enforcement standard" has the meaning given in s. 160.01 (2) .

(c) “Groundwater" has the meaning designated under s. 281.75 (1) (c) .

(cm) “Home oil tank system" means an underground home heating oil tank used for consumptive use on the premises together with any on-site integral piping or dispensing system.

(cq) “Natural attenuation" means the reduction in the concentration and mass of a substance, and the products into which the substance breaks down, due to naturally occurring physical, chemical and biological processes.

(cs) “Occurrence" means a contiguous contaminated area resulting from one or more petroleum products discharges.

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

1. A person who operates a petroleum product storage system, regardless of whether the system remains in operation and regardless of whether the person operates or permits the use of the system at the time environmental pollution occurs.

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

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

1. A person who owns, or has possession or control of, a petroleum product storage system, or who receives direct or indirect consideration from the operation of a system regardless of whether the system remains in operation and regardless of whether the person owns or receives consideration at the time environmental pollution occurs.

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

3. A person who formerly owned a farm tank and who satisfies the criteria in sub. (4) (ei) 1m. b.

(f) “Petroleum product" means gasoline, gasoline-alcohol fuel blends, kerosene, fuel oil, burner oil, diesel fuel oil or used motor oil.

(fg) “Petroleum product storage system" means a storage tank that is located in this state and is used to store petroleum products together with any on-site integral piping or dispensing system. The term does not include pipeline facilities; tanks of 110 gallons or less capacity; residential tanks of 1,100 gallons or less capacity storing petroleum products that are not for resale; farm tanks of 1,100 gallons or less capacity storing petroleum products that are not for resale, except as provided in sub. (4) (ei) ; tanks used for storing heating oil for consumptive use on the premises where stored, except for heating oil tanks owned by school districts and heating oil tanks owned by technical college districts and except as provided in sub. (4) (ei) ; or tanks owned by this state or the federal government.

(g) “Program year" means the period beginning on August 1, and ending on the following July 31.

(gm) “Property damage" does not include those liabilities that are excluded from coverage in liability insurance policies for property damage, other than liability for remedial action associated with petroleum product discharges from petroleum product storage systems. “Property damage" does not include the loss of fair market value resulting from contamination.

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

(h) “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 petroleum product storage system site.

(hm) “Terminal" means a petroleum product storage system that is itself connected to a pipeline facility, as defined in 49 USC 60101 (18) or is one of a number of connected petroleum product storage systems at least one of which is connected to a pipeline facility, as defined in 49 USC 60101 (18).

(i) “Underground petroleum product storage tank system" means an underground storage tank used for storing petroleum products together with any on-site integral piping or dispensing system with at least 10 percent of its total volume below the surface of the ground.

(1m)   Rules concerning 3rd-party compensation. The commissioner of insurance shall promulgate rules defining “liabilities which are excluded from coverage in liability insurance policies for bodily injury" and “liabilities which are excluded from coverage in liability insurance policies for property damage" for the purposes of sub. (1) (ad) and (gm) . The definitions shall be consistent with standard insurance industry practices.

(2)   Powers and duties of the department.

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

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

(d) The department shall reserve a portion, not to exceed 20 percent, of the amount annually appropriated under s. 20.370 (6) (fr) for awards under this section to be used to fund emergency remedial action and claims that exceed the amount initially anticipated.

(e) The department shall promulgate rules, with an effective date of no later than January 1, 1996, specifying the methods the department will use under sub. (3) (ae) , (ah) , (am) and (ap) to identify the petroleum product storage system or home oil tank system which discharged the petroleum product that caused an area of contamination and to determine when a petroleum product discharge that caused an area of contamination occurred. The department shall write the rule in a way that permits a clear determination of what petroleum product contamination is eligible for an award under sub. (4) after December 31, 1995.

(em)

1. The department may promulgate rules that specify a fee that must be paid by a service provider as a condition of submitting a bid to conduct an activity under sub. (3) (c) for which a claim for reimbursement under this section will be submitted. Any fees collected under the rules shall be deposited into the petroleum inspection fund.

2. If the department promulgates rules under subd. 1. , the department may purchase, or provide funding for the purchase of, insurance to cover the amount by which the costs of conducting activities under sub. (3) (c) exceed the amount bid to conduct those activities.

(f) The department shall promulgate a rule establishing a priority system for paying awards under sub. (4) for petroleum product storage systems that are owned by school districts and that are used for storing heating oil for consumptive use on the premises where stored.

(g) The department may promulgate, by rule, requirements for the certification or registration of persons who provide consulting services to owners and operators who file claims under this section. Any rule requiring certification or registration shall also authorize the revocation or suspension of the certification or registration.

(h) The department shall promulgate rules designed to facilitate effective and cost-efficient administration of the program under this section that specify all of the following:

1. Information that must be submitted under this section, including quarterly summaries of costs incurred with respect to a discharge for which a claim is intended to be submitted under sub. (3) but for which a final claim has not been submitted.

2. Formats for submitting the information under subd. 1.

3. Review procedures that must be followed by employees of the department in reviewing the information submitted under subd. 1.

(i) The department shall promulgate rules specifying procedures for evaluating remedial action plans and procedures to be used by employees of the department while remedial actions are being conducted. The department shall specify procedures that include all of the following:

1. Annual reviews that include application of the method in the rules promulgated under sub. (2e) (a) to determine the risk posed by discharges that are the subject of the remedial actions.

2. Annual reports by consultants estimating the additional costs that must be incurred to comply with sub. (3) (c) 3. and with enforcement standards.

3. A definition of “reasonable time" for the purpose of determining whether natural attenuation may be used to achieve enforcement standards.

4. Procedures to be used to measure concentrations of contaminants.

(j) The department shall promulgate rules specifying all of the following:

1. The conditions under which employees of the department must issue approvals under sub. (3) (c) 4.

2. Training and management procedures to ensure that employees comply with the requirements under subd. 1.

(2e)   Risk-based analysis.

(a) The department shall promulgate rules that specify a method, which shall include individualized consideration of the routes for migration of petroleum product contamination at each site, for determining the risk to public health, safety and welfare and to the environment posed by discharges for which the department receives notification under sub. (3) (a) 3.

(c) The department shall apply the method in the rules promulgated under par. (a) to determine the risk posed by a discharge for which the department receives notification under sub. (3) (a) 3.

(3)   Claims for petroleum product investigation, remedial action planning and remedial action activities.

(a) Who may submit a claim. Subject to pars. (ac) , (ae) , (ah) , (am) and (ap) , an owner or operator or a person owning a home oil tank system may submit a claim to the department for an award under sub. (4) to reimburse the owner or operator or the person for the eligible costs under sub. (4) (b) that the owner or operator or the person incurs because of a petroleum products discharge from a petroleum product storage system or home oil tank system if all of the following apply:

1. The owner or operator or the person is able to document that the source of a discharge is from a petroleum product storage system or home oil tank system.

3. The owner or operator or the person notifies the department, before conducting a site investigation or remedial action activity, of the discharge and the potential for submitting a claim under this section, except as provided under par. (g) .

4. The owner or operator registers the petroleum product storage system or the home oil tank system is registered with the department of agriculture, trade and consumer protection under s. 168.23 .

5. The owner or operator or the person reports the discharge in a timely manner to the division of emergency management in the department of military affairs or to the department, according to the requirements under s. 292.11 .

6. The owner or operator or the person investigates the extent of environmental damage caused by the petroleum product storage system or home oil tank system.

7. The owner or operator or the person recovers any recoverable petroleum products from the petroleum products storage system or home oil tank system.

8. The owner or operator or the person disposes of any residual solid or hazardous waste in a manner consistent with local, state and federal laws, rules and regulations.

9. The owner or operator or the person follows standards for groundwater restoration in the groundwater standards in the rules promulgated by the department under ss. 160.07 and 160.09 and restores the environment, to the extent practicable, according to those standards at the site of the discharge from a petroleum product storage system or home oil tank system.

(ac) Claim deadline; sunset.

1. An owner or operator or person owning a home oil tank system is not eligible for an award under this section for costs for which the owner or operator or person does not submit a claim within 180 days after incurring the costs, or by February 1, 2016, whichever is later.

2. An owner or operator or person owning a home oil tank system is not eligible for an award under this section for costs incurred because of a petroleum product discharge if the owner or operator or person does not provide notification under par. (a) 3. concerning the discharge before July 20.

3. An owner or operator or person owning a home oil tank system is not eligible for an award under this section if the owner or operator or person does not submit a claim for the costs before July 1, 2020.

(ae) New systems. An owner or operator or a person owning a home oil tank system is not eligible for an award under this section for costs incurred because of a petroleum product discharge from an underground petroleum product storage tank system or a home oil tank system that meets the performance standards in 40 CFR 280.20 or in rules of the department of agriculture, trade and consumer protection relating to underground petroleum product storage tank systems installed after December 22, 1988, if the discharge is confirmed after December 31, 1995.

(ah) New aboveground systems. An owner or operator is not eligible for an award under this section for costs incurred because of a petroleum product discharge from a petroleum product storage system that is not an underground petroleum product storage tank system and that meets the performance standards in rules of the department of agriculture, trade and consumer protection relating to petroleum product storage systems that are not underground petroleum product storage tank systems and that are installed after April 30, 1991, if the discharge is confirmed after December 22, 2001.

(am) Upgraded underground systems.

1. An owner or operator or a person owning a home oil tank system is not eligible for an award under this section for costs incurred because of a petroleum product discharge from an underground petroleum product storage tank system or a home oil tank system if the discharge is confirmed after December 31, 1995, and the discharge is confirmed, or activities under par. (c) or (g) are begun with respect to that discharge, after the day on which the underground petroleum product storage tank system or home oil tank system first meets the upgrading requirements in 40 CFR 280.21 (b) to (d) or in rules of the department of agriculture, trade and consumer protection relating to the upgrading of existing underground petroleum product storage tank systems, except as provided in subd. 2.

2. If an underground petroleum product storage tank system or home oil tank system first meets the upgrading requirements in 40 CFR 280.21 (b) to (d) or in rules of the department of agriculture, trade and consumer protection relating to the upgrading of existing underground petroleum product storage tank systems, after December 31, 1993, and the owner or operator or person owning the home oil tank system applies for private pollution liability insurance covering the underground petroleum product storage tank system or home oil tank system within 30 days after the day on which the underground petroleum product storage tank system or home oil tank system first meets those upgrading requirements, then the owner or operator or person remains eligible for an award for costs incurred because of a petroleum product discharge, from that underground petroleum product storage tank system or home oil tank system, which is confirmed, and with respect to which activities under par. (c) or (g) are begun, before the 91st day after the day on which the underground petroleum product storage tank system or home oil tank system first meets those upgrading requirements.

(ap) Upgraded aboveground systems. An owner or operator is not eligible for an award under this section for costs incurred because of a petroleum product discharge from a petroleum product storage system that is not an underground petroleum product storage tank system if the discharge is confirmed after December 22, 2001, and the discharge is confirmed, or activities under par. (c) or (g) are begun with respect to that discharge, after the day on which the petroleum product storage system first meets the upgrading requirements in rules of the department of agriculture, trade and consumer protection relating to the upgrading of existing petroleum product storage systems that are not underground petroleum product storage tank systems.

(av) Claims submitted for petroleum product storage systems on tribal trust lands. The owner or operator of a petroleum product storage system located on trust lands of an American Indian tribe may submit a claim for an award under sub. (4) if the owner or operator otherwise satisfies par. (a) and complies with the rules promulgated under this section and any rules of the department of agriculture, trade and consumer protection concerning petroleum product storage systems.

(b) Claims submitted by owners or operators who were not owners or operators, or a person owning a home oil tank system when a petroleum product discharge occurred. An owner or operator who was not the owner or operator, or a person who owns a home oil tank system who did not own the home oil tank system, when a petroleum product discharge occurred and who meets the requirements of this section may submit a claim for an award under sub. (4) unless the owner or operator or the person knew or should have known of the ineligibility of the previous owner or operator or of the person who previously owned the home oil tank system as a result of actions under sub. (4) (g) 4. , 5. or 6.

(bm) Agents. Except as provided in par. (bn) , an owner or operator or a person owning a home oil tank system may enter into a written agreement with a county or any other person under which that county or other person acts as an agent for the owner or operator or person owning a home oil tank system in conducting the activities required under par. (c) . The owner or operator or person owning a home oil tank system and the agent shall jointly submit the claim for an award under sub. (4) .

(bn) Department of transportation as agent. With the prior approval of the department and the owner or operator or person owning a home oil tank system, the department of transportation may act as an agent for an owner or operator or a person owning a home oil tank system whose petroleum product storage system or home oil tank system is located on property that is or may be affected by a transportation project under the jurisdiction of the department of transportation. The scope of the department of transportation's agency shall be limited to conducting the activities required under par. (c) and submitting the claim for an award under sub. (4) to be jointly paid to the owner or operator or person and the department of transportation for the eligible costs incurred by the department of transportation in conducting the activities required under par. (c) .

(c) Investigations, remedial action plans and remedial action activities. Before submitting an application under par. (f) , except as provided under par. (g) , an owner or operator or the person shall do all of the following:

1. Complete an investigation to determine the extent of environmental damage caused by a discharge from a petroleum product storage system or home oil tank system.

2. Prepare a remedial action plan that identifies specific remedial action activities proposed to be conducted under subd. 3. and submit the remedial action plan to the department.

3. Conduct all remedial action activities at the site of the discharge from the petroleum product storage system or home oil tank system necessary to restore the environment to the extent practicable and minimize the harmful effects from the discharge as required under s. 292.11 .

4. Receive written approval from the department that the remedial action activities performed under subd. 3. meet the requirements of s. 292.11 .

(cm) Monitoring as remedial action. An owner or operator or person owning a home oil tank system may, with the approval of the department, satisfy the requirements of par. (c) 2. and 3. by proposing and implementing monitoring to ensure the effectiveness of natural attenuation of petroleum product contamination.

(cp) Bidding process.

1. Except as provided in subds. 2. and 5. , if the department estimates that the cost to complete a site investigation, remedial action plan and remedial action for an occurrence exceeds $60,000, the department shall implement a competitive public bidding process to obtain information to assist in making the determination under par. (cs) .

2. The department may waive the requirement under subd. 1. if an enforcement standard is exceeded in groundwater within 1,000 feet of a well operated by a public utility, as defined in s. 196.01 (5) , or within 100 feet of any other well used to provide water for human consumption.

5. The department may waive the requirement under subd. 1. after providing notice to the secretary of administration.

6. The department may disqualify a bid received under subd. 1. if, based on information available to the department and experience with remedial action at other sites, the bid is unlikely to establish an amount to sufficiently fund remedial action that will comply with par. (c) 3. and with enforcement standards.

7. The department may disqualify a person from submitting bids under subd. 1. if, based on past performance of the bidder, the department determines that the person has demonstrated an inability to complete remedial action within established cost limits.

(cs) Determination of least costly method of remedial action.

1. The department shall review the remedial action plan for a site and shall determine the least costly method of complying with par. (c) 3. and with enforcement standards. The department shall notify the owner or operator of its determination of the least costly method and shall notify the owner or operator that reimbursement for remedial action under this section is limited to the amount necessary to implement that method.

3. In making determinations under subd. 1. , the department shall determine whether natural attenuation will achieve compliance with par. (c) 3. and with enforcement standards.

4. The department may review and modify an amount established under subd. 1. if the department determines that new circumstances, including newly discovered contamination at a site, warrant those actions.

(cw) Annual reviews.

1. The department shall conduct the annual review required under sub. (2) (i) 1. for a site and shall determine the least costly method of completing remedial action at the site in order to comply with par. (c) 3. and with enforcement standards. The department shall notify the owner or operator of its determination of the least costly method and shall notify the owner or operator that reimbursement under this section for any remedial action conducted after the date of the notice is limited to the amount necessary to implement that method.

3. In making determinations under subd. 1. , the department shall determine whether natural attenuation will achieve compliance with par. (c) 3. and with enforcement standards.

4. The department may review and modify an amount established under subd. 1. if the department determines that new circumstances, including newly discovered contamination at a site, warrant those actions.

(d) Final review of remedial action activities. The department shall complete a final review of the remedial action activities within 60 days after the claimant notifies the department that the remedial action activities are completed.

(f) Application. A claimant shall submit a claim on a form provided by the department. The claim shall contain all of the following documentation of activities, plans and expenditures associated with the eligible costs incurred because of a petroleum products discharge from a petroleum product storage system:

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.

5. The written approval of the department under par. (c) 4.

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

(g) Emergency situations. Notwithstanding pars. (a) 3. and (c) 1. and 2. , an owner or operator or the person may submit a claim for an award under sub. (4) after notifying the department under par. (a) 3. , without completing an investigation under par. (c) 1. and without preparing a remedial action plan under par. (c) 2. , if an emergency existed which made the investigation under par. (c) 1. and the remedial action plan under par. (c) 2. inappropriate and, before conducting remedial action, the owner or operator or person notified the department of the emergency and the department authorized emergency action.

(h) Initial eligibility review. When an owner or operator or the person notifies the department under par. (a) 3. , the department shall provide the owner or operator or the person with information on the program under this section and the department's estimate of the eligibility of the owner or operator or of the person for an award under this section.

(4)   Awards for petroleum product investigation, remedial action planning and remedial action activities.

(a) Awards.

1. If the department finds that the claimant meets all of the requirements of this section and any rules promulgated under this section, the department shall issue an award to reimburse a claimant for eligible costs incurred because of a petroleum products discharge from a petroleum product storage system or home oil tank system.

2. The department may not issue an award before all eligible costs have been incurred and written approval is received under sub. (3) (c) 4. , except as follows:

a. The department may issue an award before all eligible costs have been incurred and written approval is received under sub. (3) (c) 4. if the department determines that the delay in issuing the award would cause a financial hardship to the owner or operator or the person.

b. The department shall issue an award if the owner or operator or the person has incurred at least $50,000 in unreimbursed eligible costs and has not submitted a claim during the preceding 12 months.

5. The department shall review claims related to home oil tank discharges as soon as the claims are received. The department shall issue an award for an eligible home oil tank discharge as soon as it completes the review of the claim.

5m. The department shall review claims related to discharges from farm tanks described in par. (ei) as soon as the claims are received. The department shall issue an award for an eligible discharge from a farm tank described in par. (ei) as soon as it completes the review of the claim.

6. In any fiscal year, the department may not award more than 5 percent of the amount appropriated under s. 20.370 (6) (fr) as awards for petroleum product storage systems described in par. (ei) .

7. In any fiscal year, the department may not award more than 5 percent of the amount appropriated under s. 20.370 (6) (fr) as awards for petroleum product storage systems that are owned by school districts and that are used for storing heating oil for consumptive use on the premises where stored.

8. If an owner or operator or person owning a home oil tank system is conducting approved remedial action activities that were necessitated by a petroleum product discharge from a petroleum product storage system or home oil tank system and those remedial action activities have not remedied the discharge, then the department may approve financial assistance under this section for enhancements to the approved remedial action activities or different remedial action activities that the department determines will remedy the discharge without increasing the overall costs of remedying the discharge. The total amount of an original award under this section plus additional financial assistance provided under this subdivision is subject to the limits in pars. (d) to (e) , (ei) and (em) on amounts of awards.

(b) Eligible costs. Except as provided in par. (c) or (cc) , eligible costs for an award under par. (a) include actual costs or, if the department establishes a usual and customary cost under par. (cm) for an item, usual and customary costs for the following items:

1. Testing to determine tightness of tanks and lines if the method used is approved by the department.

2. Removal of petroleum products from surface waters, groundwater or soil.

3. Investigation and assessment of contamination caused by a petroleum product storage system or a home oil tank system.

4. Preparation of remedial action plans.

5. Removal of contaminated soils.

6. Soil treatment and disposal.

7. Environmental monitoring.

8. Laboratory services.

9. Maintenance of equipment for petroleum product recovery or remedial action activities.

10. Restoration or replacement of a private or public potable water system.

11. Restoration of environmental quality.

12. Contractor costs for remedial action activities.

13. Inspection and supervision.

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

15. For an owner or operator only, compensation to 3rd parties for bodily injury and property damage caused by a petroleum products discharge from an underground petroleum product storage tank system.

Cross-reference: See also s. Ins 6.35 , Wis. adm. code.

(c) Exclusions from eligible costs. Eligible costs for an award under par. (a) do not include the following, regardless of whether a competitive bidding process is used:

1. Costs incurred before August 1, 1987.

2. Costs of retrofitting or replacing a petroleum product storage system or home oil tank system.

3. Other costs that the department determines to be associated with, but not integral to, the eligible costs incurred because of a petroleum products discharge from a petroleum product storage system or home oil tank system.

4. Costs, other than costs for compensating 3rd parties for bodily injury and property damage, which 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 for remedial action activities funded under 42 USC 6991 , unless the owner or operator or the person repays the funds provided under 42 USC 6991 .

7. Costs of emptying, cleaning and disposing of the tank and other costs normally associated with closing or removing any petroleum product storage system or home oil tank system unless those costs were incurred before November 1, 1991, or unless the claimant had signed a contract for services for activities required under sub. (3) (c) or a loan agreement, note or commitment letter for a loan for the purpose of conducting activities required under sub. (3) (c) before November 1, 1991.

8. Interest costs incurred by an applicant that exceed interest at the following rate:

a. If the applicant has gross revenues of not more than $25,000,000 in the most recent tax year before the applicant submits a claim, 1 percent under the prime rate.

d. If the applicant has gross revenues of more than $25,000,000 in the most recent tax year before the applicant submits a claim, 4 percent.

9. Loan origination fees incurred by an applicant that exceed 2 percent of the principal amount of the loan.

10. Fees charged under s. 292.55 (2) .

11. Costs that exceed the amount necessary to comply with sub. (3) (c) 3. and with enforcement standards using the least costly method.

12. Costs that are incurred after the date of a notice under sub. (3) (cw) 1. and that exceed the amount necessary to comply with sub. (3) (c) 3. and with enforcement standards using the method specified in the notice.

(cc) Ineligibility for interest reimbursement.

1.

a. Except as provided in subd. 1m. or 2. , if an applicant's final claim is submitted more than 120 days after receiving written notification that no further remedial action is necessary with respect to the discharge, interest costs incurred by the applicant after the 60th day after receiving that notification are not eligible costs.

c. Except as provided in subd. 2. , if an applicant does not complete the investigation of the petroleum product discharge by the first day of the 61st month after the month in which the applicant notified the department under sub. (3) (a) 3. or October 1, 2003, whichever is later, interest costs incurred by the applicant after the later of those days are not eligible costs.

1m. If an applicant received written notification that no further remedial action is necessary with respect to a discharge before September 1, 2001, and the applicant's final claim is submitted more than 120 days after September 1, 2001, interest costs incurred by the applicant after the 120th day after September 1, 2001, are not eligible costs.

2. Subdivision 1. does not apply to any of the following:

a. An applicant that is a local unit of government, if federal or state financial assistance other than under this section, has been provided for that expansion or redevelopment.

b. An applicant that is engaged in the expansion or redevelopment of brownfields, as defined in s. 238.13 (1) (a) , if federal or state financial assistance other than under this section, has been provided for that expansion or redevelopment.

(ce) 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. (b) , or that eligible costs are limited to the amount that the selected service provider would have charged, if an owner or operator of a petroleum product storage system located in that area, or a person owning a home oil tank system 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.

(cm) Usual and customary costs. The department shall establish a schedule of usual and customary costs for items under par. (b) that are commonly associated with claims under this section. The department shall use that schedule to determine the amount of eligible costs for an occurrence for which a competitive bidding process is not used, except in circumstances under which higher costs must be incurred to comply with sub. (3) (c) 3. and with enforcement standards. For an occurrence for which a competitive bidding process is used, the department may not use the schedule. In the schedule, the department shall specify the maximum number of reimbursable hours for particular tasks and the maximum reimbursable hourly rates for those tasks. The department shall use methods of data collection and analysis that enable the schedule to be revised to reflect changes in actual costs.

(d) Awards for claims; underground systems.

1. The department shall issue an award under this paragraph for a claim filed after July 31, 1987, for eligible costs, under par. (b) , incurred on or after August 1, 1987, and before December 22, 2001, by the owner or operator of an underground petroleum product storage tank system and for eligible costs, under par. (b) , incurred on or after December 22, 2001, by the owner or operator of an underground petroleum product storage tank system if the petroleum product discharge on which the claim is based is confirmed and activities under sub. (3) (c) or (g) are begun before December 22, 2001.

2. The department shall issue the award under this paragraph without regard to fault in an amount equal to the amount of the eligible costs that exceeds the deductible amount under par. (dg) . An award issued under this paragraph may not exceed the following for each occurrence:

a. For an owner or operator of an underground petroleum product storage tank system that is located at a facility at which petroleum is stored for resale or an owner or operator of an underground petroleum product storage tank system that handles an annual average of more than 10,000 gallons of petroleum per month, $1,000,000.

b. For an owner or operator other than an owner or operator under subd. 2. a. , c. or d. , $500,000.

c. For an owner or operator of a petroleum product storage system described in par. (ei) , $100,000.

d. For a school district or a technical college district with respect to a discharge from a petroleum product storage system that is used for storing heating oil for consumptive use on the premises where stored, $190,000.

3. The department may not issue awards under this paragraph to an owner or operator for eligible costs incurred in one program year that total more than the following:

a. For an owner or operator of 100 or fewer underground petroleum product storage tank systems, $1,000,000.

b. For an owner or operator of more than 100 underground petroleum product storage tank systems, $2,000,000.

4. The department shall recalculate all awards issued under this paragraph, or under s. 101.143 (4) (e) , 1987 stats., before May 3, 1990, according to all of the requirements of those provisions at the time that the award was made, except that the award shall be based on 100 percent of the eligible costs and except that the award shall be subject to the maximum amounts under subds. 2. and 3. The department shall issue an award under this subdivision for the difference between the award as recalculated under this subdivision and the award issued before May 3, 1990.

(dg) Deductible; underground systems. The amount of the deductible for an award under par. (d) is as follows for each occurrence:

2. For a school district or a technical college district with respect to a discharge from an underground petroleum product storage tank system that is used for storing heating oil for consumptive use on the premises, 25 percent of eligible costs.

4. For an owner or operator other than an owner or operator described in subd. 2. , $2,500, plus 5 percent of eligible costs.

(di) Rules concerning deductible for underground systems. The department may promulgate rules describing a class of owners and operators of underground petroleum product storage tank systems otherwise subject to par. (dg) for whom the deductible is based on financial hardship.

(dm) Awards for aboveground systems for a specified period.

1. The department shall issue an award under this paragraph for a claim for eligible costs, under par. (b) , incurred on or after August 1, 1987, and before December 22, 2001, by the owner or operator of a petroleum product storage system that is not an underground petroleum product storage tank system and for eligible costs, under par. (b) , incurred on or after December 22, 2001, by the owner or operator of a petroleum product storage system that is not an underground petroleum product storage tank system if the petroleum product discharge on which the claim is based is confirmed and activities under sub. (3) (c) or (g) are begun before December 22, 2001.

2. The department shall issue the award under this paragraph without regard to fault in an amount equal to the amount of the eligible costs that exceeds the following deductible:

a. For the owner or operator of a terminal, $15,000 plus 10 percent of the amount by which eligible costs exceed $200,000.

b. For a school district or a technical college district with respect to a discharge from a petroleum product storage system that is used for storing heating oil for consumptive use on the premises where stored, 25 percent of eligible costs.

c. For the owner or operator of a petroleum product storage system that is described in par. (ei) , $2,500 plus 5 percent of eligible costs per occurrence.

d. For an owner or operator other than an owner or operator under subd. 2. a. , b. or c. , $15,000 plus 2 percent of the amount by which eligible costs exceed $200,000.

3. An award issued under this paragraph may not exceed the following for each occurrence:

a. For an owner or operator of a petroleum product storage system that is located at a facility at which petroleum is stored for resale or an owner or operator of a petroleum product storage system that handles an annual average of more than 10,000 gallons of petroleum per month, $1,000,000.

b. For a school district or a technical college district with respect to a discharge from a petroleum product storage system that is used for storing heating oil for consumptive use on the premises where stored, $190,000.

c. For an owner or operator of a petroleum product storage system described in par. (ei) , $100,000.

d. For an owner or operator other than an owner or operator under subd. 3. a. , b. or c. , $500,000.

4. The department may not issue awards under this paragraph to an owner or operator for eligible costs incurred in one program year that total more than the following:

a. For an owner or operator of 100 or fewer petroleum product storage systems that are not underground petroleum product storage tank systems, $1,000,000.

b. For an owner or operator of more than 100 petroleum product storage systems that are not underground petroleum product storage tank systems, $2,000,000.

5. The department shall recalculate all awards issued under par. (e) before July 29, 1995, for eligible costs incurred before May 7, 1994, by the owner or operator of a petroleum product storage system that is not an underground petroleum product storage tank system according to the eligibility requirements at the time that the awards were made except that the awards shall be subject to the deductible amounts under subd. 2. and the maximum amounts under subds. 3. and 4. The department shall issue an award under this subdivision for the difference between the award as recalculated under this subdivision and the award issued before July 29, 1995.

(dr) Deductible in certain cases. If a person is the owner or operator of an underground petroleum product storage tank system and a petroleum product storage system that is not an underground petroleum product storage tank system, both of which have discharged resulting in one occurrence, and if the person is eligible for an award under pars. (d) and (dm) , the department shall calculate the award using the deductible determined under par. (d) 2. if the predominant method of petroleum product storage at the site, measured in gallons, is underground petroleum product storage tank systems or using the deductible determined under par. (dm) 2. if the predominant method of petroleum product storage at the site is not underground petroleum product storage tank systems.

(e) Awards for certain owners or operators.

1. The department shall issue an award under this paragraph for a claim for any of the following:

b. Eligible costs, under par. (b) , incurred on or after December 22, 2001, by the owner or operator of a petroleum product storage system that is not an underground petroleum product storage system if those costs are not reimbursable under par. (dm) 1.

c. Eligible costs, under par. (b) , incurred on or after December 22, 2001, by the owner or operator of an underground petroleum product storage tank system if those costs are not reimbursable under par. (d) 1.

2. The department shall issue the award under this paragraph without regard to fault in an amount equal to the amount of the eligible costs that exceeds a deductible amount of $10,000, except that the deductible amount for a petroleum product storage system that is owned by a school district or a technical college district and that is used for storing heating oil for consumptive use on the premises where stored is 25 percent of eligible costs and except that the deductible for a petroleum product storage system that is described in par. (ei) is $2,500 plus 5 percent of the eligible costs, but not more than $7,500 per occurrence without regard to when the eligible costs are incurred.

2m. An award issued under this paragraph may not exceed $190,000 for each occurrence, except that an award under this paragraph to the owner or operator of a petroleum product storage system described in par. (ei) may not exceed $100,000 per occurrence.

3. The department may not issue awards under this paragraph to an owner or operator for eligible costs incurred in one program year that total more than $190,000.

(ee) Waiver of deductible. Notwithstanding par. (d) 2. , (dm) 2. or (e) 2. , 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 petroleum product storage system is located. If the department records the statement of lien, the department has a lien on the property on which the petroleum product storage system 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.

(ei) Awards for certain farm tanks. A farm tank of 1,100 gallons or less capacity storing petroleum products that are not for resale, together with any on-site integral piping or dispensing system, is a petroleum product storage system for the purposes of this section, if all of the following apply:

1m. One of the following conditions is satisfied:

a. The owner or operator of the farm tank owns a parcel of 35 or more acres of contiguous land, on which the farm tank is located, which is devoted primarily to agricultural use, as defined in s. 91.01 (2) , including land designated by the department as part of the ice age trail under s. 23.17 , which during the year preceding submission of a first claim under sub. (3) produced gross farm profits, as defined in s. 71.58 (4) , of not less than $6,000 or which, during the 3 years preceding that submission produced gross farm profits, as defined in s. 71.58 (4) , of not less than $18,000, or a parcel of 35 or more acres, on which the farm tank is located, of which at least 35 acres, during part or all of the year preceding that submission, were enrolled in the conservation reserve program under 16 USC 3831 to 3836 .

b. The claim is submitted by a person who, at the time that the notification was made under sub. (3) (a) 3. , was the owner of the farm tank and owned a parcel of 35 or more acres of contiguous land, on which the farm tank is or was located, which was devoted primarily to agricultural use, as defined in s. 91.01 (2) , including land designated by the department as part of the ice age trail under s. 23.17 , which during the year preceding that notification produced gross farm profits, as defined in s. 71.58 (4) , of not less than $6,000 or which, during the 3 years preceding that notification, produced gross farm profits, as defined in s. 71.58 (4) , of not less than $18,000, or a parcel of 35 or more acres, on which the farm tank is located, of which at least 35 acres, during part or all of the year preceding that notification, were enrolled in the conservation reserve program under 16 USC 3831 to 3836 .

2m. The owner or operator of the farm tank has received a letter or notice from the department indicating that the owner or operator must conduct a site investigation or remedial action because of a discharge from the farm tank or an order to conduct such an investigation or remedial action.

(em) Awards for claims for home oil tank system discharges.

1. The department shall issue an award for a claim filed after May 17, 1988, for eligible costs, under par. (b) , incurred on or after August 1, 1987, by a person who owns a home oil tank system.

2. The department shall issue the award under this paragraph without regard to fault for each home oil tank system in an amount equal to 75 percent of the amount of the eligible costs, except that, if the home oil tank system is owned by a nonprofit organization that provides housing assistance to families with incomes below 80 percent of the median family income, as determined annually by the U.S. department of housing and urban development for each county in the state, of the county in which the home oil tank system is located, then the award shall equal 100 percent of the amount of the eligible costs. The department shall recalculate any award made to such a nonprofit organization under this paragraph before May 7, 1994, based on 100 percent of eligible costs and shall issue an award for the difference between the award as recalculated and the award issued before May 7, 1994.

3. An award issued under this paragraph may not exceed $7,500.

(es) Awards for claims for investigations.

1. The department shall issue an award for a claim filed after August 9, 1989, for eligible costs, under par. (b) , incurred on or after August 1, 1987, by an owner or operator or a person owning a home oil tank system in investigating the existence of a discharge or investigating the presence of petroleum products in soil or groundwater if the investigation is undertaken at the written direction of the department and no discharge or contamination is found.

2. The department shall issue the award under this paragraph without regard to fault for each petroleum product storage system or home oil tank system in an amount equal to the eligible costs incurred.

3. If an award has been made under this paragraph and a discharge or contamination is found in a subsequent investigation, the department shall reduce the award under par. (d) or (e) by the amount paid under this paragraph.

(f) Contributory negligence. Contributory negligence shall not be a bar to submitting a claim under this section and no award under this section may be diminished as a result of negligence attributable to the claimant or any person who is entitled to submit a claim.

(g) Denial of claims, limits on awards. The department shall deny a claim under par. (a) if any of the following applies:

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

2. The claimant submits a fraudulent claim.

3. The claimant has been grossly negligent in the maintenance of the petroleum product storage system or home oil tank system.

4. The claimant intentionally damaged the petroleum product storage system or home oil tank system.

5. The claimant falsified storage records.

6. The claimant willfully failed to comply with laws or rules of this state concerning the storage of petroleum products.

7. The petroleum product discharge was caused by a person who provided services or products to the claimant or to a prior owner or operator of the petroleum product storage system or home oil tank system.

(h) Reductions of awards.

1. Notwithstanding pars. (d) 2. (intro.) , (dm) 2. (intro.) , (e) 2. and (em) 2. , if an owner or operator or person owning a home oil tank system prepares and submits a claim that includes ineligible costs that are identified under subd. 2. , the department shall calculate the award by determining the amount that the award would otherwise be under par. (d) , (dm) , (e) or (em) based only on the eligible costs and then by reducing that amount by 50 percent of the amount of the ineligible costs identified under subd. 2. that are included in the claim.

1m. If a consultant prepares a claim that is submitted by a claimant and that includes ineligible costs that are identified under subd. 2. , the consultant shall pay to the department an amount equal to 50 percent of the ineligible costs identified under subd. 2. that are included in the claim. A consultant may not charge the owner or operator for any amount that the consultant is required to pay under this subdivision. Payments made under this subdivision shall be deposited in the petroleum inspection fund.

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

(4e)   Payments to lenders.

(a) Notwithstanding sub. (4) (g) , when the department denies a claim under sub. (3) because of fraud, gross negligence or willful misconduct on the part of an owner or operator, the department shall pay, to a person who loaned money to the owner or operator for the purpose of conducting activities under sub. (3) (c) , an amount equal to the amount that would have been paid under sub. (4) for otherwise eligible expenses actually incurred, but not more than the amount specified under par. (b) , if all of the following conditions are satisfied:

1. The lender assigns to the department an interest in the collateral pledged by the owner or operator for the sole purpose of securing the loan that was made to finance the activities under sub. (3) (c) . If the amount of the payment under this subsection is less than the amount of the loan, the lender shall assign to the department that fraction of the lender's interest in the collateral that equals the ratio of the amount of the payment under this subsection to the amount of the loan.

2. For a loan that is made after July 29, 1995, before the lender made any disbursement of the loan the department provided a letter indicating its preliminary determination that the owner or operator was eligible for an award under sub. (4) .

3. For a loan that is made after July 29, 1995, claims for payment under sub. (3) are made after completion of the site investigation and remedial action plan, after completion of the remedial action and annually for any continuing maintenance, monitoring and operation costs.

(b) Payment under this section may not exceed the amount of the loan. If the loan is made after July 29, 1995, payment under this section may not exceed the amount of the loan disbursements made before the department notifies the lender that the claim may be denied.

(c) Assignment of an interest in collateral to the department under par. (a) 1. does not deprive a lender of its right to any cause of action arising out of the loan documents.

(d) Any payments made by the department under this subsection constitute a lien upon the property on which the remedial action is conducted if the department records the lien with the register of deeds in the county in which the property is located.

(4m)   Assignment of awards. The filing by a claimant with the department of an assignment of an award under sub. (4) to a person who loans money to the claimant for the purpose of conducting activities required under sub. (3) (c) 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 subsection has priority over any previously existing or subsequently created lien, assignment, security interest or other interest in the proceeds of the award.

(5)   Recovery of awards.

(a) Sale of remedial equipment or supplies. If a person who received an award under this section sells equipment or supplies that were eligible costs for which the award was issued, the person shall pay the proceeds of the sale to the department. The proceeds shall be paid into the petroleum inspection fund.

(am) Right of action. A right of action under this section shall accrue to the state against an owner, operator or other person only if one of the following applies:

1. The owner, operator or other person submits a fraudulent claim or does not meet the requirements under this section and an award is issued under this section to the owner, operator or other person for eligible costs under this section or payment is made to a lender under sub. (4e) .

2. A person fails to make a payment required under par. (a) .

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

(c) Disposition of funds. The net proceeds of a recovery under par. (b) shall be paid into the petroleum inspection fund.

(6)   Requirement for proof of financial responsibility.

(a) An owner or operator covered under sub. (4) (d) shall provide to the department proof of financial responsibility for the first $5,000 of eligible costs incurred because of a petroleum products discharge. The proof of financial responsibility shall be in a form determined by the department to provide assurance equal to that provided under 40 CFR 280.97 (b) (1) 2. b. that may include a bond, an irrevocable letter of credit, a deposit or an escrow account made payable to or established for the benefit of the department.

(b) The department shall determine whether proof of financial responsibility submitted under par. (a) satisfies par. (a) .

(6s)   Arbitration. Upon the request of a person who files an appeal of a decision of the department under this section, if the amount at issue is $100,000 or less, the appeal shall be heard by one or more individuals designated by the department to serve as arbitrator under rules promulgated for this purpose by the department. In such an arbitration, the arbitrator shall render a decision at the conclusion of the hearing, or within 5 business days after the conclusion of the hearing if the arbitrator determines that additional time is needed to review materials submitted during the hearing, affirming, modifying or rejecting the decision of the department. The arbitrator shall promptly file his or her decision with the department. The decision of the arbitrator is final and shall stand as the decision of the department. An arbitrator's decision may not be cited as precedent in any other proceeding before the department or before any court. A decision under this subsection is subject to review under ss. 227.53 to 227.57 only on the ground that the decision was procured by corruption, fraud or undue means. The record of a proceeding under this subsection shall be transcribed as provided in s. 227.44 (8) .

(7)   Liability.

(a) No common law liability, and no statutory liability which is provided in a statute other than this section, for damages resulting from a petroleum product storage system or home oil tank system is affected by this section. Except as provided in par. (am) , 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.

(am) 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.

(b) If a person conducts a remedial action activity for a discharge at a petroleum product storage system or home oil tank system site, whether or not the person files a claim under this section, the claim and remedial action activity conducted are not evidence of liability or an admission of liability for any potential or actual environmental pollution.

(7m)   Intervention in 3rd-party actions. An owner or operator of an underground petroleum product storage tank system shall notify the department of any action by a 3rd party against the owner or operator for compensation for bodily injury or property damage caused by a petroleum products discharge from the underground petroleum product storage tank system if the owner or operator may be eligible for an award under this section. The department may intervene in any action by a 3rd party against an owner or operator for compensation for bodily injury or property damage caused by a petroleum products discharge from an underground petroleum product storage tank system if the owner or operator may be eligible for an award under this section for compensation awarded in the action.

(9)   Records.

(a) The department shall promulgate rules prescribing requirements for the records to be maintained by an owner or operator, person owning a home oil tank system 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 or operator, person owning a home oil tank system or service provider or any other person if the document is relevant to a claim for reimbursement under this section.

(9m)   Revenue obligations.

(a) For purposes of subch. II of ch. 18 , the petroleum storage remedial action program is a special fund program, and the petroleum inspection fund is a special fund. The petroleum inspection fund is a segregated fund created by the imposition of fees, penalties or excise taxes. The legislature finds and determines that a nexus exists between the petroleum storage remedial action program and the petroleum inspection fund in that fees imposed on users of petroleum are used to remedy environmental damage caused by petroleum storage.

(b) Deposits, appropriations or transfers to the petroleum inspection fund for the purposes of the petroleum storage remedial action program may be funded with the proceeds of revenue obligations issued subject to and in accordance with subch. II of ch. 18 and, if designated a higher education bond, in accordance with subch. IV of ch. 18 .

(e) The department shall have all other powers necessary and convenient to distribute the special fund revenues and to distribute the proceeds of the revenue obligations in accordance with subch. II of ch. 18 and, if designated a higher education bond, in accordance with subch. IV of ch. 18 , and to make payments under an agreement or ancillary arrangement entered into under s. 18.55 (6) with respect to revenue obligations issued under this subsection.

(f) The department may enter into agreements with the federal government or its agencies, political subdivisions of this state, individuals or private entities to insure or in any other manner provide additional security for the revenue obligations issued under this subsection.

(g)

1. Subject to the limitation under subd. 2. , the building commission shall contract revenue obligations under this subsection, as soon as practicable after October 29, 1999, in the maximum amount that the building commission believes can be fully paid on a timely basis from moneys received or anticipated to be received.

2. Revenue obligations issued under this subsection may not exceed $386,924,000 in principal amount, excluding any obligations that have been defeased under a cash optimization program administered by the building commission. In addition to this limit on principal amount, the building commission may contract revenue obligations under this subsection as the building commission determines is desirable to fund or refund outstanding revenue obligations, to pay issuance or administrative expenses, to make deposits to reserve funds, to pay accrued or capitalized interest, and to make payments under an agreement or ancillary arrangement entered into under s. 18.55 (6) with respect to revenue obligations issued under this subsection.

(h) Unless otherwise expressly provided in resolutions authorizing the issuance of revenue obligations or in other agreements with the owners of revenue obligations, each issue of revenue obligations under this subsection shall be on a parity with every other revenue obligation issued under this subsection and in accordance with subch. II of ch. 18 and, if designated a higher education bond, in accordance with subch. IV of ch. 18 .

(i) Recognizing its moral obligation to do so, the legislature expresses its expectation and aspiration that, if the legislature reduces the rate of the petroleum inspection fee and if the funds in the petroleum inspection fund are insufficient to pay the principal and interest on the revenue obligations issued under subch. II or IV of ch. 18 pursuant to this subsection, the legislature shall make an appropriation from the general fund sufficient to pay the principal and interest on the obligations.

(10)   Penalties.

(a) Any owner or operator, person owning a home oil tank system or service provider who fails to maintain a record as required by rules promulgated under sub. (9) (a) may be required to forfeit not more than $5,000. Each day of continued violation constitutes a separate offense.

(b) Any owner or operator, person owning a home oil tank system or service provider who intentionally destroys a document that is relevant to a claim for reimbursement under this section is guilty of a Class G felony.

1987 a. 399 ; 1989 a. 31 , 254 , 255 ; 1991 a. 39 , 82 , 269 ; 1993 a. 16 , 301 , 416 , 491 ; 1995 a. 27 ss. 3665 to 3683m , 9116 (5) ; 1995 a. 227 , 247 , 378 , 417 ; 1997 a. 27 , 35 , 237 , 252 , 283 ; 1999 a. 9 , 185 ; 2001 a. 16 , 109 ; 2003 a. 33 ; 2005 a. 75 ; 2007 a. 20 , 145 ; 2009 a. 28 , 240 ; 2011 a. 32 ; 2013 a. 20 ss. 1634 to 1706 ; Stats. 2013 s. 292.63; 2013 a. 173 s. 33 ; 2015 a. 55 . Cross-reference: See also ch. NR 747 , Wis. adm. code. That the commingling of contaminants from separate tanks was below DNR clean-up levels did not eliminate the fact that commingling can still occur resulting in one occurrence under sub. (1) (cs). Mews v. Department of Commerce, 2004 WI App 24 , 269 Wis. 2d 641 , 676 N.W.2d 160 , 03-0055 . The proceeds of general obligation bonds may be used to fund awards under this section. 81 Atty. Gen. 114 .