Chapter 292

292.63(4)(es)3. 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.

292.63(4)(f) (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.

292.63(4)(g) (g) Denial of claims, limits on awards. The department shall deny a claim under par. (a) if any of the following applies:

292.63(4)(g)1. 1. The claim is not within the scope of this section.

292.63(4)(g)2. 2. The claimant submits a fraudulent claim.

292.63(4)(g)3. 3. The claimant has been grossly negligent in the maintenance of the petroleum product storage system or home oil tank system.

292.63(4)(g)4. 4. The claimant intentionally damaged the petroleum product storage system or home oil tank system.

292.63(4)(g)5. 5. The claimant falsified storage records.

292.63(4)(g)6. 6. The claimant willfully failed to comply with laws or rules of this state concerning the storage of petroleum products.

292.63(4)(g)7. 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.

292.63(4)(h) (h) Reductions of awards.

292.63(4)(h)1. 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.

292.63(4)(h)1m. 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.

292.63(4)(h)2. 2. The department shall promulgate a rule identifying the ineligible costs to which subds. 1. and 1m. apply.

292.63(4e) (4e) Payments to lenders.

292.63(4e)(a) (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:

292.63(4e)(a)1. 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.

292.63(4e)(a)2. 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).

292.63(4e)(a)3. 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.

292.63(4e)(b) (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.

292.63(4e)(c) (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.

292.63(4e)(d) (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.

292.63(4m) (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.

292.63(5) (5) Recovery of awards.

292.63(5)(a) (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.

292.63(5)(am) (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:

292.63(5)(am)1. 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).

292.63(5)(am)2. 2. A person fails to make a payment required under par. (a).

292.63(5)(b) (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.

292.63(5)(c) (c) Disposition of funds. The net proceeds of a recovery under par. (b) shall be paid into the petroleum inspection fund.

292.63(6) (6) Requirement for proof of financial responsibility.

292.63(6)(a) (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.

292.63(6)(b) (b) The department shall determine whether proof of financial responsibility submitted under par. (a) satisfies par. (a).

292.63(6s) (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).

292.63(7) (7) Liability.

292.63(7)(a) (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.

292.63(7)(am) (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.

292.63(7)(b) (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.

292.63(7m) (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.

292.63(9) (9) Records.

292.63(9)(a) (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.

292.63(9)(b) (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.

292.63(9m) (9m) Revenue obligations.

292.63(9m)(a) (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.

292.63(9m)(b) (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.

292.63(9m)(e) (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.

292.63(9m)(f) (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.

292.63(9m)(g) (g)

292.63(9m)(g)1. 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.

292.63(9m)(g)2. 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.

292.63(9m)(h) (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.

292.63(9m)(i) (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.

292.63(10) (10) Penalties.

292.63(10)(a) (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.

292.63(10)(b) (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.

292.63 History History: 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.

292.63 Cross-reference Cross-reference: See also ch. NR 747, Wis. adm. code.

292.63 Annotation 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.

292.63 Annotation The proceeds of general obligation bonds may be used to fund awards under this section. 81 Atty. Gen. 114.

292.64 292.64 Removal of abandoned underground petroleum storage tanks.

292.64(1) (1) In this section:

292.64(1)(a) (a) “Backfill” does not include landscaping or replacing sidewalk, asphalt, fence, or sod or other vegetation.

292.64(1)(b) (b) “Underground petroleum product storage tank system” has the meaning given in s. 292.63 (1) (i).

292.64(2) (2) The department may contract with a person registered or certified under s. 168.23 to empty, clean, remove, and dispose of an underground petroleum product storage tank system; to assess the site on which the underground petroleum product storage tank system is located; and to backfill the excavation if all of the following apply:

292.64(2)(a) (a) The department determines that the underground petroleum product storage tank system is abandoned.

292.64(2)(b) (b) Using the method that the department uses to determine inability to pay under s. 292.63 (4) (ee), the department determines that the owner of the underground petroleum product storage tank system is unable to pay to empty, clean, remove, and dispose of the underground petroleum product storage tank system; to assess the site on which the underground petroleum product storage tank system is located; and to backfill the excavation.

292.64(3) (3) If the department incurs costs under sub. (2), the department shall record a statement of lien with the register of deeds of the county in which the underground petroleum product storage tank system was located. Upon recording the statement of lien, the department has a lien on the property on which the underground petroleum product storage tank system was located in the amount of the costs incurred. The property remains subject to the lien until that amount is paid in full to the department. The department shall deposit payments received under this subsection into the petroleum inspection fund.

292.64 History History: 2009 a. 28; 2013 a. 20 s. 1707; Stats. 2013 s. 292.64; 2013 a. 173.

292.65 292.65 Dry cleaner environmental response program.

292.65(1) (1) Definitions. In this section:

292.65(1)(b) (b) “Case closure letter” means a letter provided by the department that states that, based on information available to the department, no further remedial action is necessary with respect to a dry cleaning product discharge.

292.65(1)(d) (d) “Dry cleaning facility” means a facility for cleaning apparel or household fabrics for the general public using a dry cleaning product, other than a facility that is one of the following:

292.65(1)(d)1. 1. A coin-operated facility.

292.65(1)(d)2. 2. A facility that is located on a U.S. military installation.

292.65(1)(d)3. 3. An industrial laundry.

292.65(1)(d)4. 4. A commercial laundry.

292.65(1)(d)5. 5. A linen supply facility.

292.65(1)(d)6. 6. A facility that is located at a prison or other penal institution.

292.65(1)(d)7. 7. A facility that is located at a nonprofit hospital or at another nonprofit health care institution.

292.65(1)(d)8. 8. A facility that is located on property that is owned by the federal government or by this state or that is located on property that was owned by the federal government or by this state when the facility was operating.

292.65(1)(d)9. 9. A formal wear rental firm.

292.65(1)(e) (e) “Dry cleaning product” means a hazardous substance used to clean apparel or household fabrics, except for a hazardous substance used to launder apparel or household fabrics.

292.65(1)(ek) (ek) “Formal wear” includes tuxedos, suits and dresses, but does not include costumes, table linens and household fabrics.

292.65(1)(em) (em) “Formal wear rental firm” means a facility that rents formal wear to the general public and dry cleans only the formal wear that it rents to the general public.

292.65(1)(g) (g) “Groundwater” has the meaning given in s. 281.75 (1) (c).

292.65(1)(gm) (gm) “Immediate action” means a remedial action that is taken within a short time after a discharge of dry cleaning product occurs, or after the discovery of a discharge of dry cleaning product, to halt the discharge, contain or remove discharged dry cleaning product, or remove contaminated soil or water in order to restore the environment to the extent practicable and to minimize the harmful effects of the discharge to air, lands, and waters of the state and to eliminate any imminent threat to public health, safety, or welfare.

292.65(1)(gs) (gs) “Interim action” means a remedial action that is taken to contain or stabilize a discharge of a dry cleaning product, in order to minimize any threats to public health, safety, or welfare or to the environment, while other remedial actions are being planned.

292.65(1)(gv) (gv) “Launder” means to use water and detergent as the main process for cleaning apparel or household fabrics.

292.65(1)(h) (h) “Operator” means any of the following: