Chapter NR 747

NR 747.015(25) (25) “Loan secured” means the point at which a financial organization and customer have completed all documents associated with a commitment of funds and an agreement to repay the funding. The term applies to original loans and to the creation of additional funding.

NR 747.015(26) (26) “Natural attenuation” means the reduction in the concentration and mass of a substance and its breakdown products in groundwater or soils, or both, due to naturally occurring physical, chemical or biological processes.

NR 747.015(27) (27) “Occurrence” has the meaning set forth in s. 292.63 (1) (cs), Stats.

NR 747.015 Note Note: Section 292.63 (1) (cs), Stats., defines occurrence as a contiguous contaminated area resulting from one or more petroleum product discharges.

NR 747.015 Note Note: In Mews vs. Wisconsin Department of Commerce, 2004 WI APP 24, 676 NW 2d 160 Wis APP. (2004), the Court concluded that this definition is “published and unambiguous.” In arriving at this conclusion, the Court agreed with the department that without an intervening, unimpacted area of no detects, all contamination at a site is contiguous and is therefore a single occurrence.

NR 747.015(28) (28) “Operator” has the meaning set forth in s. 292.63 (1) (d), Stats.

NR 747.015 Note Note: Section 292.63 (1) (d), Stats., defines operator as:

NR 747.015 Note (d) 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 the environmental pollution occurs; or

NR 747.015 Note 2. A subsidiary or parent corporation of the person specified under subd. 1.

NR 747.015(29) (29) “Outstanding unreimbursed loan amount” means funds that have been disbursed by the financial organization for actual costs incurred by the borrower’s service providers and any earned interest charges, less any amounts reimbursed by the PECFA program.

NR 747.015(30) (30) “Owner” is an entity under the PECFA program or a trust and in addition has the meaning set forth in s. 292.63 (1) (e), Stats.

NR 747.015 Note Note: Section 292.63 (1) (e), Stats., defines owner as any of the following:

NR 747.015 Note (e) 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 the discharge occurs;

NR 747.015 Note 2. A subsidiary or parent corporation of the person specified under subd. 1.

NR 747.015(31) (31) “Passive bio-remediation” has the same meaning as “natural attenuation”.

NR 747.015(32) (32) “PECFA” means petroleum environmental cleanup fund award, as established in s. 292.63, Stats.

NR 747.015(33) (33) “Person” has the meaning set forth in ch. ATCP 93.

NR 747.015 Note Note: Chapter ATCP 93 defines person as an individual, trust, firm, joint stock company, federal agency, corporation, state, municipality, commission, political subdivision of the state, or any interstate body. “Person” also includes a consortium, a joint venture, a commercial entity, and the United States government.

NR 747.015(34) (34) “Petroleum product” has the meaning set forth in s. 292.63 (1) (f), Stats.

NR 747.015 Note Note: Section 292.63 (1) (f), Stats., defines a petroleum product as gasoline, gasoline-alcohol fuel blends, kerosene, fuel oil, burner oil, diesel fuel oil or used motor oil.

NR 747.015(35) (35) “Petroleum product storage system” has the meaning set forth in s. 292.63 (1) (fg), Stats.

NR 747.015 Note Note: Section 292.63 (1) (fg), Stats., defines a petroleum product storage system as a storage tank that is located in Wisconsin 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 Wisconsin or the federal government.

NR 747.015(36) (36) “Pollution impairment” means bodily injury or property damage arising from the actual, alleged or threatened discharge, dispersal, seepage, migration, release, or escape of a petroleum product.

NR 747.015(37) (37) “Prime rate” means the most recent rate published in the Wall Street Journal under Money Rates — Prime Rate.

NR 747.015 Note Note: The prime rate is the base rate on corporate loans posted by at least 75% of the nation’s 30 largest banks.

NR 747.015(38) (38) “Program year” has the meaning set forth in s. 292.63 (1) (g), Stats.

NR 747.015 Note Note: Section 292.63 (1) (g), Stats., defines program year as the period beginning on August 1 and ending on the following July 31.

NR 747.015(39) (39) “Progress payment” means an award made prior to the full completion of a remediation and may include payments after completion of an emergency action, site investigation, remediation, maintenance or operation, or other points as defined in this chapter.

NR 747.015(40) (40) “Property damage” has the meaning set forth in s. 292.63 (1) (gm), Stats.

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(44) (44) “Service provider” has the meaning set forth in s. 292.63 (1) (gs), Stats.

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(46) (46) “Subsidiary or parent corporation” has the meaning set forth in s. 292.63 (1) (h), Stats.

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(47) (47) “Tank” has the meaning set forth in ch. ATCP 93.

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(49) (49) “Underground petroleum product storage tank system” has the meaning set forth in s. 292.63 (1) (i), Stats.

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)(a) (a) Conduct leak detection procedures;

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)(c) (c) Immediately shut down and repair a leaking tank system;

NR 747.015(52)(d) (d) Conduct a required product inventory;

NR 747.015(52)(e) (e) Comply with tank system use permit requirements;

NR 747.015(52)(f) (f) Comply with plan review, installation or inspection requirements under ch. ATCP 93;

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(52)(h) (h) Maintain corrosion protection on a system’s tank or lines.

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 NR 747.02 Coverage.

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)(a) (a) A pipeline facility.

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)(d) (d) Any tank system that is federal or state owned.

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(3)(k) (k) Any other tank system not included under sub. (1).

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)2. 2. ‘Discharges are commingled.’ A discharge that predates the deadlines in sub. (3) (g) to (j) is commingled with a 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) (b) Reimbursement rates.

NR 747.02(4)(b)1. 1. Where par. (a) 1. applies, 100 percent of the eligible costs may be reimbursed.

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 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.