Chapter NR 747

NR 747.025 NR 747.025 Awards.

NR 747.025(1) (1) General.

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(2) (2) Awards, deductibles, and denials.. All awards shall be issued in accordance with this chapter and the requirements in s. 292.63 (4) (d), (dg), and (dm) to (g), Stats.

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.

subch. II of ch. NR 747 Subchapter II — Program Eligibility

NR 747.10 NR 747.10 Initial claim eligibility.

NR 747.10(1) (1) General.

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) (b) Agents.

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.

NR 747.10(1)(b)3.b. b. Conducting bids for all commodity services necessary at the site to restore the environment and minimize the harmful effects from the petroleum products discharge up to point of operation and maintenance or long-term monitoring.

NR 747.10(1)(b)3.c. c. Providing commodity services that have reimbursement maximums which are determined either by the usual and customary cost schedule established under s. NR 747.325, or by the public bidding process in subch. VI.

NR 747.10 Note Note: The department forms required in this chapter are available from the Wisconsin DNR, Bureau for Remediation & Redevelopment, P.O. Box 7921, Madison WI 53707-7921 or at http://dnr.wi.gov/topic/brownfields/pecfa.html.

NR 747.10(2) (2) Provisions of eligibility letter.

NR 747.10(2)(a) (a) When an owner, operator or person owning a home oil tank system has registered the tank systems on the property associated with the discharge and notified the department as specified under s. NR 747.11, the department shall upon request of the responsible party provide a letter of eligibility determination. This letter may include information on the PECFA program and the department’s initial determination of the eligibility for an award under this chapter.

NR 747.10(2)(b) (b) The initial eligibility determination is made by the department based upon the information made available prior to the determination.

NR 747.10(2)(c) (c) This letter of eligibility may be used in securing loans to cover estimated costs for a proposed remediation.

NR 747.10(2)(d) (d) The initial estimate of eligibility shall not be binding if subsequently the owner, operator, person owning a home heating oil tank system or other source provides the department with additional information which necessitates a subsequent ineligibility determination to be made by the department.

NR 747.10 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; am. (1) (a) 1., (b) 1., 3. a. and b., r. (1) (b) 3. c., Register, December, 1998, No. 516, eff. 1-1-99; CR 04-058: (1) (a) 3. renum. from Comm 47.30 (1) (a) and am., am. (1) (a) (intro.), cr. (1) (b) 3. c. Register February 2006 No. 602, eff. 5-1-06; correction in (1) (b) 3. a., c., (2) (a) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; corrections in (1) (a) (intro.), 2. b. to d., (b) 3. a., c., (2) (a) made under s. 13.92 (4) (b) 6., 7., Stats., Register October 2013 No. 694.

NR 747.11 NR 747.11 Tank registration.

NR 747.11(1) (1) The department has the authority to inventory and determine the location of aboveground and underground petroleum storage tanks systems as specified in s. 168.28 (2), Stats. Tank systems shall be registered with the department of agriculture, trade and consumer protection on forms provided by the department of agriculture, trade and consumer protection. Eligibility determination of awards under the scope of this chapter requires prior tank registration.

NR 747.11(2) (2) All aboveground petroleum product storage tank systems shall be registered with the department. Exceptions are for any of the following:

NR 747.11(2)(a) (a) Pipeline facilities.

NR 747.11(2)(b) (b) Tank systems of 110 gallons or less capacity.

NR 747.11(2)(c) (c) Residential tank systems of 1,100 gallons or less capacity.

NR 747.11(3) (3) All underground petroleum product storage tank systems larger than 60 gallons capacity shall be registered with the department.

NR 747.11 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; r. and recr. Register, December, 1998, No. 516, eff. 1-1-99; corrections in (1) made under s. 13.92 (4) (b) 6., 7., Stats., Register October 2013 No. 694.

NR 747.115 NR 747.115 Nonregistered tanks and out-of-service tanks.

NR 747.115(1) (1) All aboveground and underground petroleum storage tanks not previously registered, having no completed Underground Petroleum Product Tank Inventory form (ERS-7437) or Aboveground Petroleum Product Tank Inventory form (ERS-8731) on file with the department, shall be registered prior to submitting a claim for an award under the scope of this chapter.

NR 747.115 Note Note: The department forms required in this chapter are available from the Wisconsin DNR, Bureau for Remediation & Redevelopment, P.O. Box 7921, Madison WI 53707-7921 or at http://dnr.wi.gov/topic/brownfields/pecfa.html.

NR 747.115(2) (2) For all underground petroleum storage tanks removed, closed or out-of-service prior to the date of tank registration, as specified in s. ss. 168.21 to 168.26, Stats., the present owner, operator or person owning a home oil tank system shall submit documentation to the department as to the existence of the tank, the product stored, the size and type of tank, and other information to substantiate prior ownership and use. This documentation may include, but is not limited to, neutral third-party testimony, county tax records, land titles, and blue prints of initial tank installations.

NR 747.115 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; am. (1), Register, December, 1998, No. 516, eff. 1-1-99; CR 04-058: r. (3) Register February 2006 No. 602, eff. 5-1-06; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 747.12 NR 747.12 Claim process.

NR 747.12(1) (1) Application. A claimant shall submit a claim in a format prescribed by the department, and shall include all of the following that are applicable:

NR 747.12(1)(a) (a) For a claim covering the site investigation and the preparation of a remedial action plan, a copy of the report providing the information detailed in s. NR 716.15 and the letter provided by the department indicating that the remedial action plan submittal requirements have been complied with and that submittal of the claim is authorized.

NR 747.12(1)(b) (b) A copy of the Underground Petroleum Product Tank Inventory form (ERS-7437) for each underground tank system at the site and a copy of the Aboveground Petroleum Product Tank Inventory form (ERS-8731) for each aboveground tank system at the site.

NR 747.12(1)(c) (c) The bid specifications and a copy of the bids for commodity services as required in s. NR 747.33.

NR 747.12(1)(d) (d) Documentation verifying actual costs incurred because of the petroleum product discharge, which shall include receipts, invoices including contractor’s and subcontractor’s invoices, interest costs, loan fees, accounts, and processed payments.

NR 747.12(1)(e) (e) Proof of payment for all invoices including copies of both sides of canceled checks or money orders or alternate proofs of payment approved by the department.

NR 747.12(1)(f) (f) Properly detailed and itemized receipts for remedial activities and services performed.

NR 747.12(1)(g) (g) Owner’s, operator’s, home oil tank owner’s or the responsible party’s social security number or federal tax identification number.

NR 747.12(1)(h) (h) Other records or statements that the department determines to be necessary to complete the application.

NR 747.12(1)(i) (i) Signature of the owner, operator or person owning home oil tank system on the application.

NR 747.12(1)(j) (j) A certificate or certificates verifying the existence of the insurance coverage required in ch. SPS 305 for all the environmental consultants who performed work included in a claim.

NR 747.12(2) (2) Incomplete claims.

NR 747.12(2)(a) (a) Incomplete claims, lack of verification of payment of costs, lack of signatures, and other factors may delay processing of claims or change the schedule of the review.

NR 747.12(2)(b) (b) Claims received by the department which contain unpaid invoices shall, at the department’s discretion, be assigned a review date no earlier than the date proof of payment was provided to the department.

NR 747.12(2)(c) (c) PECFA claims for awards may not be processed without proper and complete documentation including, but not limited to, Underground Petroleum Product Tank Inventory forms (ERS-7437), Aboveground Petroleum Product Tank Inventory forms (ERS-8731), Remedial Action Fund Application form (ERS-8067), department letter indicating compliance with remedial action plan submittal requirements (investigation claim), report providing information detailed in s. NR 716.15 (investigation claim), evidence of the source of the petroleum product discharge and the degree and extent of the soil or water contamination resulting from the discharge, proof of payment of costs incurred in remediation, approval of closed remedial action, responsible party’s social security number or federal tax identification number, and other forms available from the department necessary for claim processing.

NR 747.12 Note Note: The department forms required in this chapter are available from the Wisconsin DNR, Bureau for Remediation & Redevelopment, P.O. Box 7921, Madison WI 53707-7921 or at http://dnr.wi.gov/topic/brownfields/pecfa.html.

NR 747.12(3) (3) Request for additional information.

NR 747.12(3)(a) (a) Once the department has begun the review of a claim, the department may request that additional information be submitted 15 business days from the date of the request. Otherwise, the claim may be deemed incomplete and progress payments may be denied. These claims, when complete, may be rescheduled for review after more recently received complete claims.

NR 747.12(3)(b) (b) The department may request additional information from owners, operators or persons owning home oil tank systems, agents, consultants, contractors or subcontractors as necessary.

NR 747.12(3)(c) (c) Failure to respond to a request, within the 15 business day response period for additional information, may result in a delay in payment, disallowance of interest costs accrued, action against a consultant, or scheduling a meeting with the responsible party and the department or other individuals.

NR 747.12(3)(c)1. 1. The department may disallow interest costs accrued during the period when no response has been received, by issuing a letter stating the intent, on a specified date, to disallow payments on interest costs accrued during this period as specified in par. (c).

NR 747.12(3)(c)2. 2. Appeal of disallowed interest costs, shall be conducted as specified in s. NR 747.53.

NR 747.12(4) (4) Costs incurred in remediation. Only eligible costs, as specified in s. NR 747.30, that have been paid, shall be submitted for an award.

NR 747.12 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; r. and recr. (1), am. (2) (c), Register, December, 1998, No. 516, eff. 1-1-99; CR 04-058: am. (1) (intro.), (2) (c) and (4), cr. (1) (j), Register February 2006 No. 602, eff. 5-1-06; correction in (1) (c), (j), (3) (c) 2., (4) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; corrections in (1) (c), (3) (c) 2., (4) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 747.13 NR 747.13 Exclusive remedy and liability. The PECFA fund awards for remediation activities and is not intended to result in owners or operators or persons owning home oil tank systems making any profit or receiving duplicate payment in a remediation. As specified in s. 292.63 (7) (am), Stats., an award made under this chapter is the exclusive method of recovery for costs reimbursed under the fund.

NR 747.13 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 747.14 NR 747.14 Right to recover actions. The department reserves the right to take action against an owner, operator or person owning a home oil tank system, or their agents or designees to recover any award or portion of an award resulting from a fraudulent claim.

NR 747.14(1) (1) Right of action. A right of action under this section shall accrue to the state against an owner, operator or other person if the owner, operator or other person submits a fraudulent claim or does not meet the requirements under this chapter or if an award is issued under this section to the owner, operator or other person for ineligible costs under this section.

NR 747.14(2) (2) Action to recover awards. The department shall request the attorney general to take action as is appropriate to recover awards to which the state is entitled or when the department discovers a fraudulent claim after an award is issued.

NR 747.14 Note Note: Section 292.63 (5) (c), Stats., states that recovered funds shall be credited to the petroleum environmental cleanup fund.

NR 747.14 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94.

NR 747.15 NR 747.15 Assignment of awards. By written notification to the department, a claimant may make an assignment of an award to an institution which lends money to the claimant for the purpose of conducting remediation activities reimbursed under this chapter, as specified in s. 292.63 (4m), Stats. This assignment of an award creates and perfects a lien in favor of the assignee in the proceeds of the award.

NR 747.15 Note Note: Section 292.63 (4m), Stats., states 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.

NR 747.15 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; correction made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.