NR 747.015 Note
Note: Section
292.63 (1) (gm), Stats., defines property damage as not including those liabilities which are exclusions in liability insurance policies for property damage, other than liability for remedial action associated with petroleum product discharges from petroleum product storage systems. The statute also excludes loss of fair market value.
NR 747.015(41)
(41) “Remedial action plan" means a document that reports a remedial action alternative and provides the basis for its recommendation along with projected costs and other required detail.
NR 747.015(42)
(42) “Responsible party" means either the owner, operator, person owning a home oil tank system or claimant who is financially responsible for all costs of remediation of a discharge of petroleum product.
NR 747.015(43)
(43) “Site bundling" means providing investigation or remedial action services, or both, for multiple occurrences while utilizing one consulting firm or common commodity services and providers, or both.
NR 747.015 Note
Note: Section
292.63 (1) (gs) defines service provider as 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 (ch.
NR 747), or a subcontractor of such a person.
NR 747.015(45)
(45) “Site investigation" means the investigation of a petroleum product discharge to provide the information necessary to define the nature, degree and extent of a contamination and to allow a remedial action alternative to be selected.
NR 747.015 Note
Note: Section
292.63 (1) (h) defines subsidiary or parent company as 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.
NR 747.015(48)
(48) “Third-party claim" means a claim against a claimant for personal injury or property damage associated with a discharge from an underground petroleum product storage tank system under this chapter.
NR 747.015 Note
Note: Section
292.63 (1) (i), Stats., defines underground petroleum product storage tank system as an underground storage tank used for storing petroleum products together with any on-site integral piping or dispensing system with at least 10% of its total volume buried in the ground.
NR 747.015(50)
(50) “Upgrade" means the addition or retrofit of a petroleum product storage tank system with cathodic protection, lining or spill and overfill controls.
NR 747.015(51)
(51) “Used motor oil" means oil from internal combustion engines, collected and stored in accordance with
s. ATCP 93.300.
NR 747.015(52)
(52) “Willful neglect" means the intentional failure to comply with the laws or rules of the state concerning the storage of petroleum products and may include, but is not limited to, the failure to:
NR 747.015(52)(b)
(b) Take out of service a tank system that by reason of operational characteristics or leak detection is suspected of causing a discharge to the environment;
NR 747.015(52)(g)
(g) Register or actions to de-register an underground or aboveground tank system in order to avoid regulation under
ch. ATCP 93; or
NR 747.015 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94;
r. and recr.
Register, December, 1998, No. 516, eff. 1-1-99;
CR 04-058: am. (24) and (32)
Register February 2006 No. 602, eff. 5-1-06;
CR 07-029: r. and recr. (19)
Register November 2008 No. 635, eff. 2-1-09; correction in (51) made under s.
13.92 (4) (b) 7., Stats.,
Register November 2008 No. 635; correction in (11), (19), (33), (47), (51), (52) (f), (g) made under s.
13.92 (4) (b) 6.,
7., Stats.,
Register December 2011 No. 672;
corrections in (5), (7), (11), (19), (20), (24), (27), (28), (30), (32), (33) to (35), (38), (40), (44), (46), (47), (49), (51), (52) (f), (g) made under s. 13.92 (4) (b) 6., 7., Stats., Register October 2013 No. 694. NR 747.02(1)
(1)
Petroleum product storage tank systems. Owners or operators of a petroleum product storage systems are eligible for reimbursement from the fund provided claims are for underground or aboveground petroleum storage systems that are one or more of the following:
NR 747.02(1)(a)
(a) Commercial tank systems larger than 110 gallons capacity.
NR 747.02(1)(b)
(b) Heating oil tank systems where the petroleum product is sold.
NR 747.02(1)(c)
(c) Farm or residential tank systems larger than 1,100 gallons capacity and not storing heating oil for consumptive use on the premises.
NR 747.02(1)(d)
(d) Tank systems storing gasoline, diesel fuel or other vehicle fuel, other than residential tanks of 1,100 gallons or less capacity.
NR 747.02(1)(e)
(e) Farm vehicle fuel systems of 1,100 gallons or less capacity, which meet the requirements in s.
292.63 (4) (ei) 1m. a., Stats., regarding farm size and farm income, and is used to store products not for resale.
NR 747.02(1)(f)
(f) Heating oil tank systems owned by public school or technical college districts, supplying heating oil for consumptive use on the premises.
NR 747.02(1)(g)
(g) Tank systems located on trust lands of an American Indian tribe or band if the owner or operator's tank system would be otherwise covered under
pars. (a) to
(f) and the owner or operator complies with this chapter and
ch. ATCP 93 and obtains all applicable agency approvals.
NR 747.02(2)
(2) Heating oil tank systems. A person owning a home heating oil tank system is eligible for reimbursement from the fund provided the claim is for a heating oil tank system that is an underground home heating oil tank system and the person complies with this chapter and
ch. ATCP 93.
NR 747.02(3)
(3) Exclusions. The fund does not cover a claim for any of the following:
NR 747.02(3)(b)
(b) A commercial tank system of 110 gallons or less capacity.
NR 747.02(3)(c)
(c) A residential motor fuel tank system of 1,100 gallons or less capacity.
NR 747.02(3)(e)
(e) Any tank system of 110 gallons or less capacity which is not used for the storage of home heating oil.
NR 747.02(3)(f)
(f) A nonresidential heating or boiler tank system where the product is used on the premises where it is stored.
NR 747.02(3)(g)
(g) An underground petroleum product storage tank system or home oil tank system that meets the performance standards in
40 CFR 280.20 or
ch. ATCP 93, was installed after December 22, 1988, and from which a release was confirmed after December 31, 1995.
NR 747.02(3)(h)
(h) An underground petroleum product storage tank system or home oil tank system that meets the upgrading requirements in
40 CFR 280.21 (b) to (d) or
ch. ATCP 93 and a discharge is confirmed after December 31, 1995, and the discharge is confirmed, or remedial activities begun, after the day on which the system first met the upgrading requirements.
NR 747.02(3)(i)
(i) A new aboveground petroleum product storage tank system that meets the performance standards promulgated in rules by the department, installed after April 30, 1991, and from which a discharge is confirmed after December 22, 2001.
NR 747.02(3)(j)
(j) An aboveground petroleum product storage tank system that meets the upgrade requirements promulgated by the department and a discharge is confirmed after December 22, 2001, and the discharge is confirmed, or remedial activities begun, after the day on which the petroleum system first met the upgrading requirements in rules promulgated by the department.
NR 747.02(4)
(4) Eligible systems and excluded systems at the same site. NR 747.02(4)(a)(a)
Three possible conditions. An owner or operator of a petroleum product storage system which is excluded by
sub. (3) (g) to
(j) from coverage is eligible for reimbursement from the fund for claims relating to other petroleum product storage systems at the same site, where one of the following conditions applies:
NR 747.02(4)(a)1.
1. `Discharges are not commingled.' A discharge that predates the deadlines in
sub. (3) (g) to
(j) is documented as not commingled with any discharge excluded by
sub. (3) (g) to
(j).
NR 747.02(4)(a)3.
3. `Replacement within the same tank bed.' A storage system that predates the deadlines in
sub. (3) (g) to
(j) has been replaced within the same tank bed or has been upgraded, subsequent to the deadlines in
sub. (3) (g) to
(j), and documentation cannot confirm whether a discharge there occurred before or after the deadlines.
NR 747.02(4)(b)2.
2. Where
par. (a) 2. applies, the department will consider the two discharges to be one occurrence, and will apply a methodology of cost separation based on total tank volume, or based on other factors acceptable to the department.
NR 747.02(4)(b)3.
3. Where
par. (a) 3. applies, 25 percent of the eligible costs may be reimbursed, after documentation is submitted to the department showing that all applicable tank closure and site assessment requirements in either
ch. ATCP 93 or in preceding federal regulations were complied with, including the corresponding deadlines for performing that closure and assessment.
NR 747.02 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94
; r. and recr.
Register, December, 1998, No. 516, eff. 1-1-99;
CR 04-058: cr. (4)
Register February 2006 No. 602, eff. 5-1-06; corrections in (1) (e) and (3) (h) made under s. 13.93 (2m) (b) 7., Stats.,
Register February 2006 No. 602; correction in (1) (g), (2), (3) (g), (h), (4) (b) 3. made under s. 13.92 (4) (b) 7., Stats.,
Register December 2011 No. 672;
corrections in (1) (e), (g), (2), (3) (g), (h), (4) (b) 3. made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694. NR 747.025(1)(a)(a) If the department determines that the claimant meets all of the eligibility requirements of this chapter, the department shall determine a deductible amount and issue an award to reimburse the claimant for eligible costs incurred in a remediation.
NR 747.025(1)(b)
(b) The department may not issue an award before all eligible costs have been incurred unless the department determines that the delay in issuing the award would cause a financial hardship to the owner, operator or the person owning a home oil tank system. The department may issue progress payments when sufficient evidence of completion of various activities, as specified in
ss. NR 747.12 and
747.355 is received.
NR 747.025 Note
Note: Other sections of this chapter, such as s.
NR 747.30 (2) and
(3), also address denial of claims, as established through other subsections of s.
292.63, Stats.
NR 747.025(3)
(3) Third-party claims. For owners or operators of underground storage tank system discharges eligible for PECFA, third-party damages resulting from petroleum product discharges may be eligible for reimbursement under the PECFA fund. Items which may not be reimbursed include, but are not limited to, costs for which the owner or operator is not legally liable; costs associated with discharges based on or attributed to a criminal act; intentional, willful or deliberate noncompliance with any statute or administrative rule; punitive or exemplary damages; and federal, state or local fines, forfeitures or other penalties.
NR 747.025 Note
Note: See s.
NR 747.36 (3) for further requirements for third-party claims.
NR 747.025 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94
; am. (1) (b) and (5) (a), r. (1) (c),
Register, December, 1998, No. 516, eff. 1-1-99;
CR 04-058: am. (1) (b), r. and recr. (2), r. (3) to (5), renum. (6) to be (3)
Register February 2006 No. 602, eff. 5-1-06; correction in (1) (b) made under s.
13.92 (4) (b) 7., Stats.,
Register December 2011 No. 672;
corrections in (1) (b), (2) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694. NR 747.03
NR 747.03 Emergency awards. The department may, after determining that an emergency exists, make an award in advance of claims received prior to the emergency claim. The finding of an emergency shall be made based upon an immediate need to protect public health or safety. The finding of an emergency may not be based upon financial hardship of the responsible party or its agent. A determination that no emergency exists may not be appealed to the department.
NR 747.03 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94; r. (1), renum. (2) to be Comm 47.03,
Register, December, 1998, No. 516, eff. 1-1-99.
NR 747.10
NR 747.10 Initial claim eligibility. NR 747.10(1)(a)(a) Responsible parties. Responsible parties may submit claims to the department pursuant to s.
292.63 (4), Stats., for reimbursement of eligible costs incurred because of a petroleum product discharge from a petroleum product storage system or home oil tank system.
NR 747.10(1)(a)1.
1. If a responsible party is not the sole owner of the site, an Owner Assignment Certification form (ERS-8070) shall be filed with the department to establish one entity to submit the claim and receive the award under this chapter.
NR 747.10(1)(a)2.
2. The responsible party, owner or operator, agent or an assignee, as established in
subd. 1., may submit a claim if all of the following are performed:
NR 747.10(1)(a)2.a.
a. Documentation that the source of a discharge or discharges is from a petroleum product storage system or home oil tank system;
NR 747.10(1)(a)2.b.
b. Notification to the department, before conducting a site investigation or remedial action activity, of the potential for submitting a claim under this chapter, except in emergency situations as provided under s.
292.63 (3) (g), Stats.;
NR 747.10(1)(a)2.c.
c. Registration of the petroleum product storage system or the home oil tank system with the department of agriculture, trade and consumer protection under ss.
168.21 to
168.26, Stats.;
NR 747.10(1)(a)2.d.
d. Report of the discharge in a timely manner to the division of emergency government in the department of military affairs or to the department, according to the requirements under
ch. 292, Stats.;
NR 747.10(1)(a)2.e.
e. Investigation of the degree and extent of environmental damage caused by the discharge from a petroleum product storage system or home oil tank system;
NR 747.10(1)(a)2.f.
f. Recovery and proper disposal of any recoverable petroleum products in the discharge from a petroleum product storage system or home oil tank system;
NR 747.10(1)(a)2.g.
g. Disposal of any residual solid or hazardous waste in a manner consistent with local, state and federal laws, rules and regulations;
NR 747.10(1)(a)2.h.
h. Verification that the owner has maintained the site in compliance with laws and rules of the state concerning the storage of petroleum products; and
NR 747.10(1)(a)2.i.
i. Restoration of the environment according to applicable standards using the most cost-effective approvable alternative available.
NR 747.10(1)(a)3.
3. Owners or operators, or persons owning home oil tank systems, who were not owners or operators, or who were not persons owning home oil tank systems, when a petroleum product discharge occurred, and who meet all of the conditions of this section, may submit a claim for an award under the scope of this chapter.
NR 747.10(1)(b)1.1. `Individuals as agents.' Except as specified in
subd. 2., an owner or operator or the person owning a home oil tank system may, with the written approval of the department, enter into a written agreement with another person to act as an agent. An agent, in order to be approved and receive payment under the fund, shall agree to complete the remediation up to the point of operation and maintenance or long-term monitoring. The agent and the owner, operator, or person owning the home oil tank system shall jointly submit a claim for an award after completing all applicable requirements under this chapter and submittal of a Current Agent Assignment Certification form (ERS-8079) to the department. An award made under this paragraph shall be made payable to both the agent and owner, operator or person owning the home oil tank system.
NR 747.10(1)(b)2.
2. `Department of transportation as agent.' With prior written approval of the department and the owner, operator or the person owning the home oil tank system, the department of transportation may act as an agent as specified in
subd. 1., when the 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 shall be limited to the activities under
subd. 3. The department of transportation shall submit the claim for an award as specified under this section with the award to be jointly paid to the owner, operator or the person owning the home oil tank system and the department of transportation for eligible costs incurred by the department of transportation in conducting the activities specified under
subd. 3.
NR 747.10(1)(b)3.
3. `Activities of agents.' All agents shall be limited to the following activities:
NR 747.10(1)(b)3.a.
a. Completing the site investigation to determine the degree and extent of the environmental contamination caused by the discharge from a petroleum product storage tank system or a home oil tank system and preparing the analysis and report as specified in
s. NR 747.337.
