LRB-2223/2
RCT:all:km
1997 - 1998 LEGISLATURE
April 16, 1997 - Introduced by Senators Cowles, Rude and Drzewiecki,
cosponsored by Representatives
Johnsrud, Freese, Ward, Goetsch,
Ainsworth, Musser, Meyer, Gard, Hasenohrl, Gronemus, Albers,
Hutchison, Duff, Kreibich, Owens, Brandemuehl, Zukowski, Sykora,
Ourada, Powers, Olsen, Gunderson and Harsdorf. Referred to Committee on
Agriculture and Environmental Resources.
SB169,1,11
1An Act to repeal 101.143 (3) (as) and 101.143 (4) (a) 5.;
to renumber and
2amend 101.143 (5) (a);
to amend 20.143 (3) (v), 25.47, 101.143 (1) (gm),
3101.143 (2) (e), 101.143 (2) (e), 101.143 (3) (a) (intro.), 101.143 (3) (a) (intro.),
4101.143 (3) (ae), 101.143 (3) (am), 101.143 (3) (c) 4., 101.143 (3) (f) 5., 101.143
5(4) (a) 7., 101.143 (4) (d) 1., 101.143 (4) (dm) 1., 101.143 (4) (e) 1. b. and c.,
6101.143 (5) (b) and 101.143 (5) (c); and
to create 101.143 (3) (ah), 101.143 (3)
7(ap), 101.143 (4) (a) 8., 101.143 (4) (ce), 101.143 (4) (dr), 101.143 (4) (g) 7.,
8101.143 (4) (h), 101.143 (5) (a), 101.143 (5) (am) 2. and 101.143 (6m) of the
9statutes;
relating to: reimbursement for costs incurred because of discharges
10from certain petroleum product storage tanks, granting rule-making authority
11and making an appropriation.
Analysis by the Legislative Reference Bureau
Under current law, the department of commerce administers a program to
reimburse owners of certain petroleum product storage tanks for a portion of the
costs of cleaning up discharges from those tanks. This program is commonly known
as PECFA. The department generally determines the amount of a PECFA award by
subtracting a specified deductible from the amount of the eligible costs.
Under this bill, if a claimant includes certain ineligible costs in a PECFA claim,
the department determines the amount of the PECFA award by subtracting the
amount of those ineligible costs, as a penalty, in addition to the deductible, from the
amount of the eligible costs. The bill requires the department to promulgate a rule
identifying the ineligible costs that will be subtracted.
This bill authorizes the department of commerce to promulgate rules under
which it requires 2 or more owners of petroleum storage tanks to use the same service
providers to conduct cleanups of discharges from those tanks as a condition of
receiving PECFA reimbursement. The bill also authorizes the department of
commerce to promulgate rules under which the department selects service providers
to provide investigation or remedial action services in specified areas. The rules may
deny PECFA reimbursement for a service performed by a person other than a
selected provider or limit PECFA reimbursement to the amount that the selected
provider would have charged for the service.
Under current law, the owner of an underground petroleum product storage
tank that meets state or federal standards for new underground petroleum product
storage tanks or that has been upgraded to meet state or federal standards for
upgrading existing underground petroleum product storage tanks is generally not
eligible for PECFA reimbursement for discharges from that tank. Under this bill, the
owner of an aboveground petroleum product storage tank that meets state standards
for new aboveground petroleum product storage tanks or that has been upgraded to
meet state standards for upgrading existing aboveground petroleum product storage
tanks is generally not eligible for PECFA reimbursement for discharges from that
tank.
Current law specifies situations in which an owner is ineligible for a PECFA
award, including when the owner has been grossly negligent in maintaining the
storage tank. This bill provides that the owner of a petroleum product storage tank
is ineligible for a PECFA award if the discharge was caused by someone who provided
services or products to the owner.
Under current law, PECFA reimburses the owner of an underground tank for
compensation paid to 3rd parties for property damages caused by a discharge. This
bill provides that PECFA reimbursement for property damages does not cover the
loss of fair market value resulting from a discharge.
Under this bill, if a person who received a PECFA award sells equipment or
supplies that were eligible costs for which the PECFA award was issued, the person
must pay the proceeds of the sale to this state.
This bill requires the department of commerce to specify the information that
must be submitted by a person who requests a hearing to contest a PECFA
determination, such as the amount of a PECFA award. If a person fails to submit the
required information, the department may deny the person a hearing.
Under current law, the maximum allowable PECFA awards for most kinds of
storage tanks decrease on July 1, 1998. This bill delays that decrease until December
22, 2001.
Under current law, the owner of a storage tank is generally ineligible for a
PECFA award for the cleanup of a discharge from the tank if the owner has received
a PECFA award for an earlier discharge from that tank. This bill eliminates that
ineligibility.
Under this bill, if an owner of a storage tank received a PECFA award but the
cleanup activities for which that award was granted failed to remedy the discharge,
the owner may receive additional financial assistance for other activities to remedy
the discharge. The amount of the original award plus the additional financial
assistance may not exceed the maximum allowable PECFA award.
Under current law, a PECFA claimant must receive a written determination
from the department of commerce or from the department of natural resources
(DNR), depending on the severity of the contamination, that the cleanup restored the
environment to the extent practicable and minimized the harmful effects from the
discharge to the environment. This bill authorizes DNR to specify methods of
showing that the cleanup restored the environment to the extent practicable and
minimized the harmful effects from the discharge to the environment, other than a
written determination by the department of commerce or DNR.
Current law limits PECFA awards for discharges from home heating oil tanks
to $500,000 per fiscal year. The law limits PECFA awards for school district heating
oil tanks to 5% of the amount appropriated for PECFA awards in each fiscal year.
This bill limits PECFA awards for school district heating oil tanks plus home heating
oil tanks to 5% of the amount appropriated for PECFA awards in each fiscal year.
Under current law, the amount of the deductible that an owner must pay under
PECFA depends on factors including the type of tank involved. The amount of the
deductible for a cleanup involving an aboveground tank may be higher than the
amount of the deductible for a cleanup involving an underground tank. This bill
provides that, if a cleanup involves discharges from both an aboveground tank and
an underground tank owned by the same person, the deductible is the amount
specified for an underground tank, if underground tanks are the predominant
storage method at the site, and is the amount specified for an aboveground tank, if
aboveground tanks are the predominant storage method at the site.
This bill authorizes the department of commerce to pay legal costs incurred
under the PECFA program from the appropriation for PECFA awards.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB169, s. 1
1Section
1. 20.143 (3) (v) of the statutes is amended to read:
SB169,4,3
120.143
(3) (v)
Petroleum storage environmental remedial action; awards. 2Biennially, from the petroleum inspection fund, the amounts in the schedule to pay
3awards under s. 101.143 and legal costs incurred under s. 101.143
(7m).
SB169, s. 2
4Section
2. 25.47 of the statutes is amended to read:
SB169,4,8
525.47 Petroleum inspection fund. There is established a separate
6nonlapsible trust fund designated as the petroleum inspection fund, to consist of the
7fees imposed under s. 168.12 (1)
, the payments under s. 101.143 (5) (a) and the net
8recoveries under s. 101.143 (5) (c).
SB169, s. 3
9Section
3. 101.143 (1) (gm) of the statutes is amended to read:
SB169,4,1410
101.143
(1) (gm) "Property damage" does not include those liabilities
which 11that are excluded from coverage in liability insurance policies for property damage,
12other than liability for remedial action associated with petroleum product discharges
13from petroleum product storage systems.
"Property damage" does not include the
14loss of fair market value resulting from contamination.
SB169, s. 4
15Section
4
. 101.143 (2) (e) of the statutes is amended to read:
SB169,4,2316
101.143
(2) (e) The department shall promulgate rules, with an effective date
17of no later than January 1, 1996, specifying the methods the department will use
18under sub. (3) (ae)
, and (am)
and (as) to identify the petroleum product storage
19system or home oil tank system which discharged the petroleum product that caused
20an area of contamination and to determine when a petroleum product discharge that
21caused an area of contamination occurred. The department shall write the rule in
22a way that permits a clear determination of what petroleum product contamination
23is eligible for an award under sub. (4) after December 31, 1995.
SB169, s. 5
24Section
5
. 101.143 (2) (e) of the statutes, as affected by 1997 Wisconsin Act ....
25(this act), is amended to read:
SB169,5,8
1101.143
(2) (e) The department shall promulgate rules, with an effective date
2of no later than January 1, 1996, specifying the methods the department will use
3under sub. (3) (ae)
and, (ah), (am)
and (ap) to identify the petroleum product storage
4system or home oil tank system which discharged the petroleum product that caused
5an area of contamination and to determine when a petroleum product discharge that
6caused an area of contamination occurred. The department shall write the rule in
7a way that permits a clear determination of what petroleum product contamination
8is eligible for an award under sub. (4) after December 31, 1995.
SB169, s. 6
9Section
6. 101.143 (3) (a) (intro.) of the statutes is amended to read:
SB169,5,1610
101.143
(3) (a)
Who may submit a claim. (intro.) Subject to pars. (ae)
, and (am)
11and (as), an owner or operator or a person owning a home oil tank system may submit
12a claim to the department for an award under sub. (4) to reimburse the owner or
13operator or the person for the eligible costs under sub. (4) (b) that the owner or
14operator or the person incurs because of a petroleum products discharge from a
15petroleum product storage system or home oil tank system if all of the following
16apply:
SB169, s. 7
17Section
7
. 101.143 (3) (a) (intro.) of the statutes, as affected by 1997 Wisconsin
18Act .... (this act), is amended to read:
SB169,5,2519
101.143
(3) (a)
Who may submit a claim. (intro.) Subject to pars. (ae)
and, (ah), 20(am)
and (ap), an owner or operator or a person owning a home oil tank system may
21submit a claim to the department for an award under sub. (4) to reimburse the owner
22or operator or the person for the eligible costs under sub. (4) (b) that the owner or
23operator or the person incurs because of a petroleum products discharge from a
24petroleum product storage system or home oil tank system if all of the following
25apply:
SB169, s. 8
1Section
8. 101.143 (3) (ae) of the statutes is amended to read:
SB169,6,82
101.143
(3) (ae) (title)
New underground systems. 1. An owner or operator or
3a person owning a home oil tank system is not eligible for an award under this section
4for costs incurred because of a petroleum product discharge from
a an underground 5petroleum product storage
tank system or a home oil tank system that meets the
6performance standards in
40 CFR 280.20 or in rules promulgated by the department
7relating to underground
petroleum product storage tank systems installed after
8December 22, 1988, except as provided in subd. 2.
SB169,6,249
2. If
a an underground petroleum product storage
tank system or home oil tank
10system that meets the performance standards in
40 CFR 280.20 or in rules
11promulgated by the department relating to underground
petroleum product storage
12tank systems installed after December 22, 1988, is located on a site on which a
13petroleum product discharge is confirmed before the date on which the
underground 14petroleum product storage
tank system or home oil tank system is installed and the
15department of natural resources does not issue a case closure letter with respect to
16that discharge before the installation date, then the owner or operator or person
17owning the home oil tank system remains eligible for an award for costs incurred
18because of a petroleum product discharge, from that
underground petroleum product
19storage
tank system or home oil tank system, which is confirmed, and with respect
20to which activities under par. (c) or (g) are begun, before January 1, 1996, or before
21the 91st day after the day on which the department of natural resources issues a case
22closure letter with respect to the discharge that occurred before the installation of
23the
underground petroleum product storage
tank system or home oil tank system,
24whichever is earlier.
SB169, s. 9
25Section
9. 101.143 (3) (ah) of the statutes is created to read:
SB169,7,8
1101.143
(3) (ah)
New aboveground systems. 1. An owner or operator is not
2eligible for an award under this section for costs incurred because of a petroleum
3product discharge from a petroleum product storage system that is not an
4underground petroleum product storage tank system and that meets the
5performance standards in rules promulgated by the department relating to
6petroleum product storage systems that are not underground petroleum product
7storage tank systems and that are installed after April 30, 1991, except as provided
8in subd. 2.
SB169,7,229
2. If a petroleum product storage system that is not an underground petroleum
10product storage tank system and that meets the performance standards in rules
11promulgated by the department relating to petroleum product storage systems that
12are not underground petroleum product storage tank systems and that are installed
13after April 30, 1991, is located on a site on which a petroleum product discharge is
14confirmed before the date on which the petroleum product storage system is installed
15and the department of natural resources does not issue a case closure letter with
16respect to that discharge before the installation date, then the owner or operator
17remains eligible for an award for costs incurred because of a petroleum product
18discharge, from that petroleum product storage system, which is confirmed, and with
19respect to which activities under par. (c) or (g) are begun, before May 1, 2001, or
20before the 91st day after the day on which the department of natural resources issues
21a case closure letter with respect to the discharge that occurred before the
22installation of the petroleum product storage system, whichever is earlier.
SB169, s. 10
23Section
10. 101.143 (3) (am) of the statutes is amended to read:
SB169,8,824
101.143
(3) (am) (title)
Upgraded underground systems. 1. An owner or
25operator or a person owning a home oil tank system is not eligible for an award under
1this section for costs incurred because of a petroleum product discharge from
an
2underground petroleum product storage
tank system or a home oil tank system if the
3discharge is confirmed, or activities under par. (c) or (g) are begun with respect to that
4discharge, after the day on which the
underground petroleum product storage
tank 5system or home oil tank system first meets the upgrading requirements in
40 CFR
6280.21 (b) to (d) or in rules promulgated by the department relating to the upgrading
7of existing underground
petroleum product storage tank systems, except as provided
8in subds. 2. to 4.
SB169,8,239
2. If
a an underground petroleum product storage
tank system or home oil tank
10system first meets the upgrading requirements in
40 CFR 280.21 (b) to (d) or in rules
11promulgated by the department relating to the upgrading of existing underground
12petroleum product storage tank systems, after December 31, 1993, and the owner or
13operator or person owning the home oil tank system applies for private pollution
14liability insurance covering the
underground petroleum product storage
tank 15system or home oil tank system within 30 days after the day on which the
16underground petroleum product storage
tank system or home oil tank system first
17meets those upgrading requirements, then the owner or operator or person remains
18eligible for an award for costs incurred because of a petroleum product discharge,
19from that
underground petroleum product storage
tank system or home oil tank
20system, which is confirmed, and with respect to which activities under par. (c) or (g)
21are begun, before the 91st day after the day on which the
underground petroleum
22product storage
tank system or home oil tank system first meets those upgrading
23requirements.
SB169,9,424
3. If
a an underground petroleum product storage
tank system first met the
25upgrading requirements in
40 CFR 280.21 (b) to (d) before May 1, 1991, then the
1owner or operator remains eligible for an award for costs incurred because of a
2petroleum product discharge, from that
underground petroleum product storage
3tank system, which is confirmed, and with respect to which activities under par. (c)
4or (g) are begun, before January 1, 1996.
SB169,9,195
4. If
a an underground petroleum product storage
tank system or home oil tank
6system first meets the upgrading requirements in
40 CFR 280.21 (b) to (d) or in rules
7promulgated by the department relating to the upgrading of existing underground
8petroleum product storage tank systems, after April 30, 1991, and is located on a site
9on which a petroleum product discharge is confirmed before the date on which the
10underground petroleum product storage
tank system or home oil tank system first
11meets those upgrading requirements and the department of natural resources does
12not issue a case closure letter with respect to that discharge before that date, then
13the owner or operator or person owning the home oil tank system remains eligible
14for an award for costs incurred because of a petroleum product discharge, from that
15underground petroleum product storage
tank system or home oil tank system, which
16is confirmed, and with respect to which activities under par. (c) or (g) are begun,
17before January 1, 1996, or before the 91st day after the day on which the department
18of natural resources issues a case closure letter with respect to the discharge that
19occurred before the upgrading requirements were met, whichever is earlier.
SB169, s. 11
20Section
11. 101.143 (3) (ap) of the statutes is created to read:
SB169,9,2521
101.143
(3) (ap)
Upgraded aboveground systems. 1. An owner or operator is
22not eligible for an award under this section for costs incurred because of a petroleum
23product discharge from a petroleum product storage system that is not an
24underground petroleum product storage tank system if the discharge is confirmed,
25or activities under par. (c) or (g) are begun with respect to that discharge, after the
1day on which the petroleum product storage system first meets the upgrading
2requirements in rules promulgated by the department relating to the upgrading of
3existing petroleum product storage systems that are not underground petroleum
4product storage tank systems, except as provided in subd. 2.
SB169,10,185
2. If a petroleum product storage system that meets the upgrading
6requirements in rules promulgated by the department relating to the upgrading of
7existing petroleum product storage systems that are not underground petroleum
8product storage tank systems is located on a site on which a petroleum product
9discharge is confirmed before the date on which the petroleum product storage
10system first meets those upgrading requirements and the department of natural
11resources does not issue a case closure letter with respect to that discharge before
12that date, then the owner or operator remains eligible for an award for costs incurred
13because of a petroleum product discharge, from that petroleum product storage
14system, which is confirmed, and with respect to which activities under par. (c) or (g)
15are begun, before May 1, 2001, or before the 91st day after the day on which the
16department of natural resources issues a case closure letter with respect to the
17discharge that occurred before the upgrading requirements were met, whichever is
18earlier.
SB169, s. 12
19Section
12. 101.143 (3) (as) of the statutes is repealed.
SB169, s. 13
20Section
13. 101.143 (3) (c) 4. of the statutes is amended to read:
SB169,11,221
101.143
(3) (c) 4. Receive written approval from the department of natural
22resources or, if the discharge is covered under s. 101.144 (2) (b), from the department
23of commerce that the remedial action activities performed under subd. 3. meet the
24requirements of s. 292.11
unless rules promulgated by the department of natural
1resources provide for an alternate means of certifying that the remedial action
2activities performed under subd. 3. meet the requirements of s. 292.11.
SB169, s. 14
3Section
14. 101.143 (3) (f) 5. of the statutes is amended to read:
SB169,11,54
101.143
(3) (f) 5. The written approval of the department of natural resources
5or the department of commerce
, or alternate certification, under par. (c) 4.
SB169, s. 15
6Section
15. 101.143 (4) (a) 5. of the statutes is repealed.