[Act 9 Sections: 1987b thru 1993f, 9310(3yu) and 9410(9yt)]
[Act 9 Vetoed Sections: 1991c, 1992c and 1993f]
10. PECFA -- INTEREST COST REIMBURSEMENT [LFB Papers 300 and 305]
Governor: Require that PECFA reimbursement for interest costs incurred by a PECFA claimant would be: (a) eliminated for applicants with gross revenues that exceed $20,000,000 in the most recent tax year before the applicant submits a claim; and (b) limited to 5% for other applicants. The limitations would first apply to interest incurred on November 1, 1999, for claims submitted on November 1, 1999. Commerce would be authorized to promulgate administrative rules that specify information and audit requirements to implement the provision. Currently, reimbursable interest rates are limited to 2% above the prime rate for loans secured after January 31, 1993, and before October 15, 1997, and 1% above the prime rate for loans secured on or after October 15, 1997. Currently, the prime rate is approximately 8.5%. Under the 5% interest limitation, interest incurred on or after November 1, 1999, would be reimbursed at 5% if the claim is submitted on or after November 1, 1999, or at up to 2% or 1% above the prime rate (depending on when the applicant secured the loan) for claims submitted before November 1, 1999.
Joint Finance: Delete provision. Instead, limit PECFA reimbursement for interest costs incurred by a PECFA claimant, for loans secured on or after November 1, 1999, based on the applicant’s gross revenues in the most recent tax year as follows: (a) if gross revenues are over $5 million to $15 million in the most recent tax year, interest reimbursement would be limited to the prime rate; (b) if gross revenues are over $15 million to $25 million, interest reimbursement would be limited to the prime rate minus 1%; (c) if gross revenues are over $25 million to $35 million, interest reimbursement would be limited to the prime rate minus 2%; (d) if gross revenues are over $35 million to $45 million, interest reimbursement would be limited to the prime rate minus 3%; and (e) if gross revenues are over $45 million, interest reimbursement would be limited to the prime rate minus 4%. Interest reimbursement for applicants with gross revenues of up to $5 million in the prior tax year would remain at the current 1% over the prime rate.
Senate: Delete the Joint Finance provisions for PECFA interest cost reimbursement to maintain the current law limit on the reimbursable interest rate to 1% over the prime rate for loans secured on or after October 15, 1997.
Conference Committee/Legislature: Include Joint Finance provision.
Veto by Governor [B-10]: Change the interest reimbursement for loans secured on or after November 1, 1999, as follows: (a) if the applicant's gross revenues in the most recent tax year are up to $25 million, interest reimbursement would be limited to the prime rate minus 1%; and (b) if the applicant's gross revenues in the most recent tax year are more than $25 million, interest reimbursement would be limited to 4%.
[Act 9 Sections: 1986c, 1986e, 9310(3yv) and 9410(9yt)]
[Act 9 Vetoed Section: 1986e]
11. PECFA -- SITE BIDDING AND INSURANCE [LFB Papers 300 and 306]
Governor: Authorize Commerce to promulgate rules that require a person to pay a specified fee as a condition of submitting a bid to provide a service for a cleanup under the PECFA program. Any fees collected under the provision would be deposited in the petroleum inspection fund. If Commerce imposes a fee, the Department would be authorized to use the PECFA awards appropriation to purchase, or provide funding for the purchase of, insurance to cover the amount by which the costs of conducting the cleanup service exceed the amount bid to conduct the cleanup service.
Joint Finance: Approve the Governor's recommendation. Further, make the following changes related to site bidding:
a. Require DNR or Commerce, whichever agency has jurisdiction over the site, to estimate the cost to complete a site investigation, remedial action plan and remedial action for an occurrence. If that estimate exceeds $80,000, Commerce would be directed to implement a competitive public bidding process to assist in determining the least costly method of remedial action. Commerce would not be permitted to implement the bidding process if: (a) DNR or Commerce waives the requirement on the grounds that the waiver is necessary in an emergency to prevent or mitigate an imminent hazard to public health, safety or welfare or to the environment; or (b) one agency waives the requirement after providing notice to the other agency. In addition; (a) make the use of the bidding process optional at sites where an enforcement standard is exceeded in groundwater within 1,000 feet of a well operated by a public utility or within 100 feet of any other well used to provide water for human consumption; and (b) allow Commerce to waive bidding requirements if the Department determines that the remedial action plan identifies the most cost efficient cleanup option for the site.
b. Authorize Commerce to disqualify a public bid for remedial action activities at a PECFA site if, based on information available to the Department and experience with other PECFA projects, the bid is unlikely to establish a maximum reimbursement amount that will sufficiently fund a cleanup necessary to meet applicable site closure requirements.
c. Authorize Commerce to disqualify a public bidder from submitting a bid for remedial action activities at a PECFA site if, based on past performance of the bidder, the bidder has demonstrated an inability to finish remedial actions within previously established cost limits.
d. Authorize Commerce to review and modify established maximum reimbursement amounts for remedial action activities if the Department determines that new circumstances, including newly discovered contamination at a site, warrant the review.
Senate: Modify the Joint Finance provisions for PECFA site bidding as follows:
a. Require that when DNR or Commerce, whichever agency has jurisdiction over the site, would estimate the cost to complete a site investigation, remedial action plan and remedial action for an occurrence under the substitute amendment, that if the estimate exceeds $60,000 (instead of $80,000 under Joint Finance) Commerce would be directed to implement a competitive public bidding process to assist in determining the least costly method of remedial action.
b. Prohibit Commerce from implementing the bidding process if DNR (but not also Commerce under Joint Finance) waives the requirement on the grounds that the waiver is necessary in an emergency to prevent or mitigate an imminent hazard to public health, safety or welfare or to the environment.
c. Prohibit Commerce from implementing the bidding process if DNR waives the requirement after providing notice to the Secretary of Commerce (but not also if Commerce waives the requirement after providing notice to DNR under Joint Finance).
d. Prohibit the use of the bidding process (instead of making it optional under Joint Finance) at sites where an enforcement standard is exceeded in groundwater within 1,000 feet of a well operated by a public utility or within 100 feet of any other well used to provide water for human consumption.
e. Delete the Joint Finance authorization for Commerce to waive bidding requirements if it determines that the remedial action plan identifies the most cost effective cleanup option for the site.
f. Delete the Joint Finance authorization for Commerce to disqualify a public bid for remedial action activities at a PECFA site if, based on information available to the Department and experience with other PECFA projects, the bid is unlikely to establish a maximum reimbursement amount that will sufficiently fund a cleanup necessary to meet applicable site closure requirements.
g. Delete the Joint Finance authorization for Commerce to disqualify a public bidder from submitting a bid for remedial action activities at a PECFA site if, based on past performance of the bidder, the bidder has demonstrated an inability to finish remedial actions within previously established cost limits.
h. Delete the Joint Finance authorization for Commerce to review and modify established maximum reimbursement amounts for remedial action activities if the Department determines that new circumstances, including newly discovered contamination at a site, warrant the review.
Conference Committee/Legislature: Retain the Joint Finance provisions except adopt (a) and (e) under the Senate, which would: (a) require Commerce to implement a competitive public bidding process if the estimated cost to complete a site investigation, remedial action plan and remedial action exceeds $60,000 (instead of $80,000 under Joint Finance); and (b) delete the Joint Finance authorization for Commerce to waive bidding requirements if Commerce determines that the remedial action plan identifies the most cost effective cleanup option for the site.
Veto by Governor [B-13]: Delete the authorization for Commerce or DNR to waive the requirement on the grounds that the waiver is necessary in an emergency to prevent or mitigate an imminent hazard to public health, safety or welfare or to the environment. The act maintains the authority for Commerce or DNR to waive the bidding requirement: (a) if a groundwater enforcement standard is exceeded within 1,000 feet of a public well or within 100 feet of any other drinking water well; or (b) after providing notice to the other Department.
[Act 9 Sections: 220, 714c, 1979v, 1983t, 1985w, 9310(3yt) and 9410(9yt)]
[Act 9 Vetoed Section: 1983t]
12. PECFA -- JOINT AGENCY REPORT [LFB Papers 300 and 307]
Governor: Require Commerce and DNR to submit a report to the Governor and appropriate standing committees of the Legislature every January 1 and July 1 that relates to petroleum storage tank cleanups that are in progress. The report would be required to provide the following information for each petroleum cleanup that is underway: (a) the date on which the record of the site investigation was received; (b) the environmental risk factors, as defined by Commerce rule, identified at the site; and (c) the year in which DNR or Commerce expects to issue a case closure letter or written approval of the remedial action activities for the site.
Joint Finance: Approve the recommendation of the Governor. Require submission of the report to the Joint Audit Committee and the Joint Committee on Finance in addition to the Governor and appropriate standing committees. Require Commerce and DNR to include the following information, in addition to that recommended by the Governor: (a) the number of notifications of petroleum discharges received by the departments and the number of written approvals of remedial action activities provided by the departments; (b) the percentage of sites classified as high risk; (c) the name of each person providing engineering consulting services to a claimant and the number of claimants to whom the person has provided those services; (d) the charges for engineering consulting services for sites for which remedial action activities are approved by the departments and for other sites; (e) the charges by service providers other than engineering consultants for services for which reimbursement is provided, including excavating, hauling, laboratory testing and landfill disposal; and (f) strategies for recording and monitoring complaints of fraud in the program and for the use of Commerce employes who conduct audits to identify questionable claims and investigate complaints. Require DNR and Commerce to also report on whether disputes arose regarding the annual determination of least costly method and use of natural attenuation under joint annual review for high risk sites and how those disputes were resolved.
Further, direct Commerce to submit a report to the Joint Committee on Finance and the Joint Committee for Review of Administrative Rules, by March 1, 2000, that includes recommendations related to actions Commerce could take to reduce interest costs incurred by claimants including a review of the schedule for progress payments for claims submitted under the program.
Senate: Make the following changes to the reporting requirements for Commerce and DNR related to PECFA:
a. Change the due date of the report to October 1 annually, for the previous fiscal year, instead of every January 1 and July 1 under Joint Finance.
b. Delete the requirement that DNR and Commerce submit the report to the Governor, but maintain the Joint Finance requirement that the two agencies submit the report to the Joint Legislative Audit Committee, Joint Committee on Finance and appropriate standing committees of the Legislature.
c. Delete the Joint Finance requirements that the report include: (1) the date on which the record of the site investigation was received; (2) the environmental risk factors, as defined by Commerce rule, identified at the site; (3) the year in which DNR or Commerce expects to issue a case closure letter or written approval of the remedial action activities for the site; and (4) whether disputes arose regarding the annual determination of least costly method and use of natural attenuation under joint annual review for high-risk sites and how those disputes were resolved. Maintain the Joint Finance requirements that the report include: (1) the number of notifications of petroleum discharges received by the departments and the number of written approvals of remedial action activities provided by the departments; (2) the percentage of sites classified as high-priority (instead of high-risk under Joint Finance); (3) the name of each person providing engineering consulting services to a claimant and the number of claimants to whom the person has provided those services; (4) the charges for engineering consulting services for sites for which remedial action activities are approved by the departments and for other sites; (5) the charges by service providers other than engineering consultants for services for which reimbursement is provided, including excavating, hauling, laboratory testing, and landfill disposal; and (6) strategies for recording and monitoring complaints of fraud in the program and for the use of Commerce employes who conduct audits to identify questionable claims and investigate complaints.
d. Delete the Joint Finance requirement that Commerce must submit a report to the Joint Committee on Finance and the Joint Committee for Review of Administrative Rules, by March 1, 2000, that includes recommendations related to actions Commerce could take to reduce interest costs incurred by claimants including a review of the schedule for progress payments for claims submitted under the program.
Conference Committee/Legislature: Include Joint Finance provision.
[Act 9 Sections: 1994m and 9110(3yw)]
13. PECFA -- USUAL AND CUSTOMARY COSTS [LFB Papers 300 and 307]
Joint Finance: Require Commerce to establish a schedule of usual and customary costs for items that are commonly associated with PECFA claims. Commerce would be required to use the schedule to determine the amount of eligible costs for an occurrence for which a competitive bidding process is not used, except in circumstances under which higher costs must be incurred to complete the remedial action activities and comply with groundwater enforcement standards. Commerce would not be allowed to use the schedule for an occurrence for which a competitive bidding process is used. The schedule would be required to include the maximum number of reimbursable hours for particular tasks and the maximum reimbursable hourly rates for those tasks. Commerce would be required to use methods of data collection and analysis that enable the schedule of usual and customary costs to be revised to reflect changes in actual costs. This provision would not apply after June 30, 2001. After June 30, 2001, the current law authorization (instead of requirement) for Commerce to establish a schedule of usual and customary costs would be effective again. Commerce would also be required to evaluate the operation of the usual and customary cost schedule and report on the results of the evaluation to the Joint Audit Committee, the Joint Committee on Finance and the appropriate standing committees of the Legislature no later than the first day of the 14th month beginning after the effective date of the bill (December 1, 2000).
In addition: (a) specify that the cost control provisions related to ineligible costs apply to an occurrence regardless of whether a competitive bidding process is used; and, (b) direct Commerce to promulgate emergency rules to establish the schedule of usual and customary costs by no later than November 1, 1999, and provide that the rules may be promulgated without a finding of emergency under Chapter 227.
Senate: Approve the Joint Finance provision to require Commerce to establish a schedule of usual and customary costs that are commonly associated with PECFA claims. However, delete the Joint Finance provisions that would: (a) specify that the cost control provisions related to ineligible costs apply to an occurrence regardless of whether a competitive bidding process is used; and (b) direct Commerce to promulgate emergency rules to establish the schedule of usual and customary costs no by no later than November 1, 1999, and provide that the rules may be promulgated without a finding of emergency under Chapter 227.
Conference Committee/Legislature: Include Joint Finance provision.
Veto by Governor [B-14]: Delete the November 1, 1999, deadline for promulgation of the emergency rules. Retain the requirement that Commerce promulgate the schedule of usual and customary costs in emergency rules. Delete the June 30, 2001, sunset of the requirement that Commerce promulgate a schedule of usual and customary costs, which would make the requirement permanent.
[Act 9 Sections: 1985m, 1986m and 9110(3yu)&(3yx)]
[Act 9 Vetoed Sections: 1986m, 1986p, 9110(3yu) and 9110(3yx)]
14. PECFA -- ADMINISTRATIVE RULES [LFB Papers 300 and 307]
Joint Finance: Require Commerce and DNR to promulgate joint emergency rules within 30 days of the effective date of the bill related to procedures, cost-effective administration and inter-agency training practices. Require Commerce and DNR to attempt to agree on the rules. If DNR and Commerce are unable to reach an agreement, require the Secretary of DOA to resolve the matter. Direct that DNR and Commerce promulgate emergency rules without a finding of emergency by November 30, 1999. Direct Commerce and DNR to submit permanent rules to the Legislature under s. 227.19 no later than June 1, 2000. The rule changes would be:
a. Commerce and DNR would be required to promulgate joint rules specifying procedures to be used by Commerce and DNR while remedial actions are being conducted, including: (1) annual reviews that include the use of risk-based analysis; (2) annual reports by consultants estimating the additional costs that must be incurred to complete the remedial action activities in compliance with the groundwater enforcement standard; (3) a definition of "reasonable period of time" to complete remedial action by use of natural attenuation in compliance with the groundwater enforcement standards; and (4) procedures to be used in measuring contaminant concentrations for purposes of directing remedial action activities and site closure decisions in compliance with the groundwater enforcement standards.
b. Commerce and DNR would be required to promulgate joint rules to facilitate effective and cost-efficient administration of the program that specify: (1) information that must be submitted under the section, including quarterly summaries of costs incurred with respect to a discharge for which a claim is intended to be submitted but for which a final claim has not been submitted; (2) formats for submitting the information required under (1); and (3) review procedures that must be followed by DNR and Commerce staff when reviewing the information submitted under (1).
c. Commerce and DNR would be required to promulgate joint rules specifying: (1) the conditions under which Commerce and DNR employes must issue approvals of remedial action activities; and (2) training and management procedures to ensure that employes comply with the requirements under (1).
d. DNR would be required to submit any changes required in its administrative rules necessary to implement the joint DNR and Commerce rules promulgated under (a), (b) and (c) to the Legislature under s. 227.19 no later than June 1, 2000.
Senate: Make the following changes related to promulgation of PECFA administrative rules by Commerce and DNR:
a. Direct Commerce, in consultation with DNR, to promulgate rules (instead of requiring joint promulgation under Joint Finance). Delete the Joint Finance requirement that if DNR and Commerce are unable to reach an agreement on rules, that the Secretary of DOA would be required to resolve the matter.
b. Direct Commerce to submit proposed permanent rules to the Legislative Council Staff no later than the first day of the third month beginning after the effective date of the bill and DNR to submit proposed changes in its administrative rules to implement the bill to the Legislative Council Staff no later than the first day of the sixth month after the effective date of the bill (instead of requiring Commerce and DNR to submit permanent rules to the Legislature under s. 227.19 no later than June 1, 2000).
c. Delete the Joint Finance requirement that Commerce and DNR promulgate joint rules on: (1) a definition of "reasonable period of time" to complete remedial action by use of natural attenuation in compliance with the groundwater enforcement standards; and (2) procedures to be used in measuring contaminant concentrations for purposes of directing remedial action activities and site closure decisions in compliance with the groundwater enforcement standards.
Conference Committee/Legislature: Include Joint Finance provision.
[Act 9 Sections: 1980c thru 1981g, 9110(3yu) and 9136(3yt)]
15. PECFA -- FINANCIAL MANAGEMENT [LFB Papers 300 and 307]
Joint Finance/Legislature: Require Commerce to make improvements to its financial management of the PECFA program. Commerce would be required, no later than the first day of the sixth month beginning after the effective date of the bill (April 1, 2000), to: (a) update its financial data base for the PECFA program to ensure that complete cost information related to each occurrence and to the annual payment to each owner or operator is readily available; (b) investigate any variances between the amount of total payments indicated by the financial data base for the PECFA program and the amount of total payments indicated by the accounts maintained by DOA to identify when the variances occurred and the reasons for the variances; and (c) make any changes in the Department's financial data base needed to ensure that the data base is consistent with the accounts maintained by DOA.
[Act 9 Section: 9110(3yt)]
16. PECFA -- EMERGENCY SITUATION [LFB Papers 300 and 303]
Joint Finance: Require that in order to submit a PECFA claim for an emergency situation, the owner or operator must have notified DNR and Commerce of the emergency before conducting the remedial action and DNR and Commerce must have jointly authorized emergency action. Repeal the portion of the current law definition of emergency as a situation where the owner or operator acted in good faith in conducting the remedial action activities and did not willfully avoid conducting the investigation or preparing the remedial action plan.
Senate: Require that in order to submit a PECFA claim for an emergency situation, the owner or operator must have notified DNR (but not Commerce as under Joint Finance) of the emergency before conducting the remedial action and DNR (instead of DNR and Commerce jointly under Joint Finance) must have authorized emergency action.
Conference Committee/Legislature: Include Joint Finance provision.
[Act 9 Sections: 1985e and 1985f]
17. ENVIRONMENTAL REGULATORY SERVICES INFORMA-TION TECHNOLOGY APPLICATIONS
