Chapter NR 747

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.

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.