SPS 347.337(3)(a)4.
4. Petroleum product that is not in the dissolved phase is present with a thickness of .01 feet or more, and verified by more than one sampling event.
SPS 347.337(3)(b)
(b)
Presence of environmental factors. Consultants for sites that exhibit one or more environmental factors shall complete an analysis of remedial alternatives and prepare a remedial action plan. The analysis shall identify the lowest cost remedial strategy that will address the environmental factor and the remediation of the site. Included within the action plan shall be a cost detail providing separate dollar amounts for consulting and commodity activities. The cost detail shall provide the total cost, excluding interest but including all closure costs, for the remediation up to approval as a closed remedial action. The remedial action plan, cost detail, information on any interim actions conducted during the site investigation, and a separate report providing the information detailed in
s. NR 716.15, and including an estimate of total contaminant mass, shall be submitted to the department and approval of the cost detail received before conducting any remedial action for which reimbursement will be claimed under the PECFA fund.
SPS 347.337(3)(c)
(c)
Absence of environmental factor. If no environmental factors are identified during or after a site investigation, the consultant will develop an analysis of remedial alternatives and prepare a remedial action plan utilizing a non-active treatment approach. The analysis shall identify the lowest cost remedial strategy that will address the remediation of the site. Included within the analysis shall be a cost detail providing separate dollar amounts for consulting and commodity activities. The cost detail shall provide the total cost, excluding interest but including all closure costs, for the remediation up to approval as a closed remedial action. The remedial action plan, cost detail, and a separate report providing the information detailed in
s. NR 716.15, and including an estimate of total contaminant mass, shall be submitted to the department and approval of the cost detail received before conducting any remedial action for which reimbursement will be claimed under the PECFA fund. The alternative proposed may include only the use of the following:
SPS 347.337(3)(c)2.
2. Development and remediation to site specific residual contamination levels.
SPS 347.337(3)(c)3.
3. Monitoring to evaluate the potential for remediation by natural attenuation.
SPS 347.337(3)(d)
(d)
Additional controls. Any alternative proposed to the department shall identify whether it assumes or includes the use of any institutional controls, groundwater use restrictions, deed notices or other restrictions or notifications.
SPS 347.337(4)
(4) Cost caps for occurrences that are not subject to public bidding. For an occurrence that is not subject to the public bidding process in
s. SPS 347.68 due to a waiver issued under
s. SPS 347.63 (1), cost caps shall be established as prescribed in s.
101.143 (3) (cs), Stats.
SPS 347.337 Note
Note: Section
101.143 (3) (cs), Stats., reads as follows: "1. The department of safety and professional services shall review the remedial action plan for a site that is classified as low or medium risk under s.
101.144 and shall determine the least costly method of complying with par. (c) 3. and with enforcement standards. The department shall notify the owner or operator of its determination of the least costly method and shall notify the owner or operator that reimbursement for remedial action under this section is limited to the amount necessary to implement that method.
SPS 347.337 Note
2. The department of natural resources and the department of safety and professional services shall review the remedial action plan for a site that is classified as high risk under s.
101.144 and shall jointly determine the least costly method of complying with par. (c) 3. and with enforcement standards. The departments shall notify the owner or operator of their determination of the least costly method and shall notify the owner or operator that reimbursement for remedial action under this section is limited to the amount necessary to implement that method.
SPS 347.337 Note
3. In making determinations under subds. 1. and 2., the department of natural resources and the department of safety and professional services shall determine whether natural attenuation will achieve compliance with par. (c) 3. and with enforcement standards.
SPS 347.337 Note
4. The department of safety and professional services may review and modify an amount established under subd. 1. if the department determines that new circumstances, including newly discovered contamination at a site, warrant those actions. The department of safety and professional services and the department of natural resources may review and modify an amount established under subd. 2. if the departments determine that new circumstances, including newly discovered contamination at a site, warrant those actions."
SPS 347.337(6)(a)(a) After receiving an approval of a remedial action plan from the department, a claimant may elect to either implement the alternative or to select another alternative. If the claimant elects to implement a higher cost remedial strategy, the claimant shall notify the department in writing of the intent to use a higher cost alternative. The notification shall include the statement that the claimant agrees that the department approved alternative establishes the maximum reimbursable amount for consulting and commodity services under the fund and that additional costs for the occurrence, excluding interest, will not be submitted to the fund.
SPS 347.337(6)(b)
(b) The department may elect to approve reimbursement for a higher cost remedial strategy if it furthers the objectives of the program.
SPS 347.337 History
History: Cr.
Register, December, 1998, No. 516, eff. 1-1-99;
CR 04-058: am. (2) (a) to (c), r. (4) and (5), cr. (4)
Register February 2006 No. 602, eff. 5-1-06; correction in (4) made under s.
13.92 (4) (b) 7., Stats.,
Register December 2011 No. 672.
SPS 347.338(1)
(1)
General. The department may review the remedial performance and costs associated with any existing sites. As part of the review, the department may elect to do any or all of the following:
SPS 347.338(1)(a)
(a) Deny any or all funding, after July 1, 1998, if a claimant failed to carry out site recommendations developed by the DNR in its "PECFA Efficiency Project."
SPS 347.338 Note
Note: "PECFA Efficiency Project" refers to a study conducted by the DNR.
SPS 347.338(1)(b)
(b) Deny any or all funding if a claimant fails to provide information required by the department as part of a review of existing sites.
SPS 347.338(2)
(2) Existing site caps or estimates. The department may require a redetermination of costs for any existing site to establish a total cost, excluding interest but including all closure costs, to achieve the status of a closed remedial action. After reviewing the total cost, the department may do any or a combination of the following: approve and establish a cap on total costs, excluding interest; deny approval of costs; approve system enhancements; bundle the site with another remediation(s); or direct the site through a public bid process to establish a lower site cost. A claimant may elect either to implement the alternative or to select another alternative. If the claimant elects to implement a higher cost remedial strategy, the claimant shall notify the department in writing of the intent to use a higher cost alternative. The notification shall include the statement that the claimant agrees that the department-approved alternative establishes the maximum reimbursable amount for consulting and commodity services under the fund and that additional costs for the occurrence, excluding interest, will not be submitted to the fund.
SPS 347.338 History
History: Cr.
Register, December, 1998, No. 516, eff. 1-1-99.
SPS 347.339(1)
(1)
Flexibility. If a claimant can achieve a closed remedial action, and the total costs incurred are equal to or less than $60,000, excluding interest, the department will allow the claimant to complete their remedial efforts without the requirements to:
SPS 347.339(1)(a)
(a) Develop and submit investigation and other interim environmental reports, if the site closure decision falls under the department's authority.
SPS 347.339(1)(b)
(b) Develop and submit a remedial action plan and be potentially subject to caps, bundling and public bidding.
SPS 347.339(2)
(2) Notification and requirements. If a claimant and his or her consultant elect to attempt to achieve a closed remedial action within the $60,000 limit, the department shall be notified in advance of implementation of the remediation process of the intended attempt. If the effort is not successful, the department shall be notified as soon as it is known or should have reasonably been expected to be known that the site will not be completed within the $60,000 limit. The $60,000 limit shall not be exceeded without prior notice to and approval from the department. After notification of the failure to accomplish a closed remedial action, the department will provide direction on whether additional action will be funded. If any expenses above the $60,000 limit are incurred without department approval, they may not be claimed for reimbursement under the PECFA fund.
SPS 347.339(3)
(3) Disqualification. If a consulting firm or consultant, in the opinion of the department, exhibits a pattern of attempting and failing to complete remediations under this section, the department will notify the consultant or the firm of the general restriction from attempting the remediations. The department may also disqualify the consultant from performing all work under PECFA.
SPS 347.339(4)
(4) Sunset of this section. The election under
sub. (2) to utilize this section may not be made on or after May 1, 2006.
SPS 347.339 History
History: Cr.
Register, December, 1998, No. 516, eff. 1-1-99;
CR 04-058: am. (1) (intro.) and (2), cr. (4)
Register February 2006 No. 602, eff. 5-1-06.
SPS 347.34
SPS 347.34
Reduction of deductible, based on financial hardship. SPS 347.34(1)(1) The deductible amount specified in s.
101.143 (4) (dg), Stats., for underground petroleum product storage systems may be reduced by the department to $2500, where proof of financial hardship is established in accordance with
sub. (2).
SPS 347.34(2)
(2) Financial hardship shall be demonstrated on a form provided by the department, in sufficient detail to enable the department to determine whether the hardship either exists, or will occur if the deductible is not reduced under this section.
SPS 347.34 Note
Note: The department forms required in this chapter are available from the Division of Environmental and Regulatory Services at P.O. Box 7837, Madison, WI 53707-7837, or at telephone 608/266-7874 and 608/264-8777 (TTY), or at the department sites for petroleum programs and PECFA at dsps.wi.gov.
SPS 347.34 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94;
CR 04-058: r. and recr.
Register February 2006 No. 602, eff. 5-1-06.
SPS 347.355
SPS 347.355
Award payments for claims received by the department on or after April 21, 1998. SPS 347.355(1)
(1)
General. Awards shall be made if funds are available at the time of completion of a claim review.
SPS 347.355(2)(a)(a) Except for those cases specified in
sub. (3) (a) and
(b), claims shall be paid on a strict first-in-first-out basis with the claim date being established when any required state agency approval and the complete claim package have been received by the department.
SPS 347.355(2)(c)
(c)
Progress payments. All requests for progress payments shall be accompanied by a completed Remedial Action Fund Application form (ERS-8067). The department may conduct field or financial audits or inspections to verify completion of each phase of remediation prior to payment. Progress payments may be made only at the following times:
SPS 347.355(2)(c)2.
2. After completion of an investigation and receipt of written approval by the department to submit the investigation claim.
SPS 347.355(2)(c)4.
4. Approval of natural attenuation as a final remedial response or at the end of each one-year cycle of the monitoring necessary to show that remediation by natural attenuation will occur.
SPS 347.355(2)(c)5.
5. At the end of each one-year cycle of monitoring required for off-site contamination.
SPS 347.355(2)(c)6.
6. After implementation and 1 year of actual operation, or monitoring, or combination thereof, and every 1 year thereafter.
SPS 347.355(2)(c)7.
7. For sites selected by the department for progress payments based upon extreme life safety and environmental risk and where the claimant has demonstrated to the department's satisfaction that he or she does not have the financial means to conduct a remediation without progress payments: the department shall be the sole determiner of whether progress payments are to be allowed, and an appeal of the decision to the department is not allowed.
SPS 347.355(2)(d)
(d)
Other interim payments. The department shall also make awards at the following points:
SPS 347.355(2)(d)1.
1. When a lender terminates a funding relationship with a claimant and requests reimbursement for the funds expended. A completed Assignment of PECFA Reimbursement form (ERS-8523) shall be submitted to the department prior to payment and the check shall be jointly paid to the claimant and the lender.
SPS 347.355(2)(d)2.
2. When a claimant has incurred eligible expenses equal to the occurrence maximum plus the applicable deductible.
SPS 347.355 Note
Note: Section
101.143 (4) (a) 2. b., Stats., reads as follows: "The department shall issue an award if the owner or operator or the person has incurred at least $50,000 in unreimbursed eligible costs and has not submitted a claim during the preceding 12 months."
SPS 347.355(2)(d)4.
4. When there is a change in responsible party, if the previous responsible party files a claim.
SPS 347.355(2)(d)7.
7. When the department directs filing a claim, in an effort to reduce interest costs to the program.
SPS 347.355 Note
Note: The department forms required in this chapter are available from the Environmental and Regulatory Services Division at P.O. Box 7838, Madison, WI 53707-7838, or at telephone 608/267-3753 and 608/264-8777 (TTY), or at
www.dsps.wi.gov, under petroleum programs and PECFA.
SPS 347.355(2)(e)
(e)
Penalty for not submitting a required claim. If a claim submittal that is directed under
par. (d) 7. is not submitted within 120 days of receiving written notification of that directive, any interest expense beginning on the 121st day and extending until the department receives the claim, is not eligible.
SPS 347.355(3)(a)(a)
Emergency actions. 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 and safety. The finding of an emergency may not be based on financial hardship or indigence of the responsible party or agent. The department shall be the sole determiner of whether an emergency exists, and an appeal of the decision to the department is not allowed.
SPS 347.355(3)(b)
(b)
Cost-effective remediations, tanks for schools and farms, and home oil tanks. SPS 347.355(3)(b)1.1. Claims received under
subds. 2. and
3. may be processed and awards may be made thereto, before processing other complete claims, except for emergency claims under
par. (a), and except for claims for either home oil tanks or farm tanks, as prescribed in s.
101.143 (4) (a) 5. and
5m., Stats., respectively.
SPS 347.355 Note
"5. The department shall review claims related to home oil tank discharges as soon as the claims are received. The department shall issue an award for an eligible home oil tank discharge as soon as it completes the review of the claim.
SPS 347.355 Note
5m. The department shall review claims related to discharges from farm tanks described in par. (ei) as soon as the claims are received. The department shall issue an award for an eligible discharge from a farm tank described in par. (ei) as soon as it completes the review of the claim."
SPS 347.355(3)(b)2.
2. Priority processing may be assigned to a claim for a closed remedial action that is achieved at a total cost of $60,000 or less, excluding interest.
SPS 347.355(3)(b)3.
3. Priority processing may be assigned to a claim for a petroleum product storage system which is owned by a school district and which is used for storing heating oil for consumptive use on the premises where stored.
SPS 347.355 History
History: Cr.
Register, December, 1998, No. 516, eff. 1-1-99;
CR 04-058: am. (2) (c) (intro.), 2., and 4. to 8., cr. (2) (d) 3. to 7., (e), (3) (b) 2. and 3., renum. (3) (b) to be (3) (b) 1. and am.
Register February 2006 No. 602, eff. 5-1-06.
SPS 347.36(1)(1)
General. A responsible party may file a claim with the department for the reimbursement of an amount paid to third parties for personal injury to another individual or off-site property damage associated with a petroleum product discharge from an underground petroleum product storage tank system within the scope of this chapter. The existence of these claims shall be made known to the department, by the responsible party, no later than 30 calendar days from the date that the responsible party knew or could have reasonably been expected to have known of the occurrence of the injury or personal property loss. Rules established by the office of the commissioner of insurance, as specified in
s. Ins 6.35, concerning ineligible costs for third-party claims, shall apply.
SPS 347.36(2)
(2) Third-party compensation for underground storage tanks. Costs incurred from environmental pollution and remediation actions, including compensation to third parties for property damage and individual bodily injury, may be deemed eligible costs as specified in
s. SPS 347.30 (1).
SPS 347.36 Note
Note: Liabilities which are excluded from coverage in liability insurance policies for bodily injury and liabilities which are excluded in liability insurance policies for property damage, for the purpose of this chapter, are defined by the state of Wisconsin commissioner of insurance, as specified in s.
Ins 6.35, as required in s.
101.143 (1m), Stats.
SPS 347.36 Note
Note: If a person conducts a remedial action activity for a discharge from a petroleum product storage tank system or home oil tank system, whether or not the person files a claim under this chapter, the claim and remedial action activity conducted are not evidence of liability or an admission of liability for any potential or actual environmental pollution, as specified in s.
101.143 (7) (b), Stats.
SPS 347.36(3)
(3) Intervention in third-party claims. The owner or operator of an underground petroleum product storage system eligible for an award under the scope of this chapter, shall notify the department in writing of any action by a third party against the owner or operator for compensation. The department may intervene in any third-party actions against an owner or operator of an underground petroleum product storage tank system for compensation for bodily injury or property damage. The department of justice may assist the department in this intervention.
SPS 347.36(4)
(4) Third-party compensation for aboveground storage tank systems. Third-party damages are not a reimbursable expense if the damage is the result of a discharge from an aboveground petroleum product storage system.
SPS 347.36(5)(a)(a) Third-party personal injury. The department may establish a peer review adjudicator panel to review third-party personal injury reimbursement claims resulting from a discharge from an underground petroleum product system under the scope of this chapter. The review panel shall make a monetary determination for reimbursement based upon reasonable health care service costs and other computation methods established by the department.
SPS 347.36(5)(b)
(b) Peer review adjudicator panel. The panel may make a recommendation to the department for an award from the fund to compensate the third party for personal injury or property damage. The department shall review the recommendation and make a decision regarding an award amount under the program.
SPS 347.36(5)(c)
(c) Third-party property claims. For third-party claims associated with the removal of property items such as, but not limited to, blacktop and cement, the depreciated value of the property may be reimbursed. The basis of the value of the property shall be included in the claim. Full replacement costs may not be reimbursed by the fund.
