LRB-3042/1
RCT:cmh:km
1999 - 2000 LEGISLATURE
May 13, 1999 - Introduced by Senator George, cosponsored by Representative
Kelso. Referred to Joint committee on Audit.
SB154,1,10
1An Act to repeal 101.143 (3) (g) 2.;
to renumber and amend 101.143 (4) (cm);
2to consolidate, renumber and amend 101.143 (3) (g) (intro.) and 1.;
to
3amend 101.143 (3) (c) 2., 101.143 (3) (cm), 101.143 (3) (d), 101.143 (4) (b) (intro.)
4and 101.143 (4) (d) 2. (intro.); and
to create 101.143 (1) (bm), 101.143 (1) (cq),
5101.143 (2) (h), 101.143 (2) (i), 101.143 (2) (j), 101.143 (2e), 101.143 (3) (cg),
6101.143 (3) (cp), 101.143 (3) (cs), 101.143 (3) (cw), 101.143 (4) (c) 10., 101.143
7(4) (c) 11., 101.143 (4) (c) 12., 101.143 (4) (cm) 2. and 101.143 (11) of the statutes;
8relating to: the petroleum storage remedial action program, providing an
9exemption from emergency rule-making procedures and granting
10rule-making authority.
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. This bill makes numerous changes concerning PECFA.
This bill requires the department of commerce, in consultation with the
department of natural resources (DNR), to promulgate rules specifying a method for
determining the risk to public health, safety and welfare and to the environment
posed by discharges of petroleum products. Under the bill, to be eligible for PECFA
reimbursement, the owner of a petroleum product storage tank may not begin a
cleanup without the approval of the department of commerce and DNR. The
department of commerce and DNR will jointly determine the appropriate date to
begin a cleanup based on the determination of the risk posed by a discharge and on
the availability of funds to make PECFA reimbursements. The requirement for
approval to begin a cleanup does not apply to emergency cleanups authorized by
DNR or to cleanups of discharges from home heating oil tanks, small farm tanks and
school district heating oil tanks.
Under current law, DNR generally may order a responsible person to conduct
a cleanup of a hazardous substance that has been discharged into the environment
and may oversee the cleanup. However, under current law, the department of
commerce may order and oversee cleanups of certain discharges from petroleum
product storage tanks. The department of commerce has authority over cleanups if
the site of the discharge is classified as low or medium priority based on the threat
that the discharge poses to public health, safety and welfare and to the environment
and if the site is not contaminated by nonpetroleum hazardous substances. Current
law requires DNR and the department of commerce to enter into a memorandum of
understanding that establishes procedures and standards for determining whether
a site is high, medium or low priority. Under this state's groundwater law, DNR and
the department of health and family services set enforcement standards which
represent a concentration of a pollutant in groundwater. If an activity or facility
causes the concentration of a pollutant in groundwater to reach or exceed the
enforcement standard, the state agency that regulates the activity or facility must,
generally, prohibit the activity or practice that uses or produces the pollutant and
implement remedial action.
This bill requires the department of commerce to determine the least costly
method of conducting a cleanup and achieving compliance with enforcement
standards for PECFA sites that are classified as low or medium priority. The bill
requires the department of commerce and DNR jointly to determine the least costly
method of conducting a cleanup and achieving compliance with enforcement
standards for PECFA sites that are classified as high priority. The bill limits the
amount of reimbursement under PECFA to the amount necessary to implement the
least costly method of conducting the cleanup and achieving compliance with
enforcement standards. The bill requires the departments to consider whether
natural attenuation can be used for each cleanup. Natural attenuation is the
naturally occurring reduction in the amount and concentration of a substance in the
environment.
This bill generally requires the department of commerce to use a competitive
public bidding process to help to determine the least costly method of conducting a
cleanup if the estimated cost to complete an investigation, clean-up plan and
cleanup exceeds $60,000. The bill provides an exemption from the bidding
requirement for certain sites with groundwater contamination near wells and allows
DNR to waive the bidding requirement.
This bill requires the department of commerce to conduct an annual review of
ongoing PECFA cleanups at low and medium priority sites and the department of
commerce and DNR to conduct an annual review of ongoing PECFA cleanups at high
priority sites. As part of an annual review, the departments must determine the least
costly method of completing the cleanup and achieving compliance with enforcement
standards. The bill limits the amount of reimbursement under PECFA for costs
incurred after the annual review to the amount necessary to complete the cleanup
and achieve compliance with enforcement standards using the least costly method.
Current law authorizes the department of commerce to establish a schedule of
usual and customary costs for items eligible for PECFA reimbursement. If the
department of commerce establishes a usual and customary cost for an item, PECFA
reimbursement for that item is limited to the usual and customary cost. This bill
requires the department of commerce to establish a schedule of usual and customary
costs for items that are commonly included in PECFA claims. The bill requires the
department of commerce to use the schedule to determine eligible costs for cleanups
for which a public bidding process is not used. This requirement applies until June
30, 2001.
Under PECFA, the owner of a petroleum product storage tank may receive an
award for the amount by which the cost of the cleanup exceeds a deductible amount,
up to a specified maximum. Currently, the PECFA deductible for underground tanks
is generally $2,500 plus 5% of eligible costs, but not more than $7,500, except that
the deductible for heating oil tanks owned by school districts and technical college
districts is 25% of eligible costs.
This bill changes the PECFA deductible for certain underground petroleum
storage tanks. Under the bill, the deductible for underground tanks, other than
school district and technical college district heating oil tanks, is generally 100% of
the amount by which eligible costs exceed $18,750 but do not exceed $21,250, plus
10% of the amount by which eligible costs exceed $21,250 but do not exceed $40,000,
plus 5% of the amount by which eligible costs exceed $40,000, but the maximum
deductible remains $7,500.
This bill requires the department of commerce, in consultation with DNR, to
promulgate rules specifying the conditions under which the two departments must
issue approvals of cleanups under PECFA. The bill also requires the department of
commerce, in consultation with DNR, to promulgate rules specifying information
that must be submitted under PECFA, review procedures that must be followed by
employes of the department of commerce and DNR and training requirements for
those employes.
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:
SB154, s. 1
1Section
1. 101.143 (1) (bm) of the statutes is created to read:
SB154,4,2
1101.143
(1) (bm) "Enforcement standard" has the meaning given in s. 160.01
2(2).
SB154, s. 2
3Section
2. 101.143 (1) (cq) of the statutes is created to read:
SB154,4,64
101.143
(1) (cq) "Natural attenuation" means the reduction in the
5concentration and mass of a substance, and the products into which the substance
6breaks down, due to naturally occurring physical, chemical and biological processes.
SB154, s. 3
7Section
3. 101.143 (2) (h) of the statutes is created to read:
SB154,4,118
101.143
(2) (h) The department of commerce, in consultation with the
9department of natural resources, shall promulgate rules designed to facilitate
10effective and cost-efficient administration of the program under this section that
11specify all of the following:
SB154,4,1412
1. Information that must be submitted under this section, including quarterly
13summaries of costs incurred with respect to a discharge for which a claim is intended
14to be submitted under sub. (3) but for which a final claim has not been submitted.
SB154,4,1515
2. Formats for submitting the information under subd. 1.
SB154,4,1816
3. Review procedures that must be followed by employes of the department of
17natural resources and the department of commerce in reviewing the information
18under subd. 1.
SB154, s. 4
19Section
4. 101.143 (2) (i) of the statutes is created to read:
SB154,4,2520
101.143
(2) (i) The department of commerce, in consultation with the
21department of natural resources, shall promulgate rules specifying procedures for
22evaluating remedial actions under sub. (3) (c) 3. to be used by employes of the
23department of commerce and the department of natural resources while remedial
24actions are being conducted. The department of commerce shall specify procedures
25that include all of the following for ongoing remedial actions:
SB154,5,2
11. Annual reviews that include application of the method under sub. (2e) (a) to
2determine the risk posed by discharges that are the subject of the remedial actions.
SB154,5,43
2. Annual reports by consultants estimating the additional costs that must be
4incurred to comply with sub. (3) (c) 3. and with enforcement standards.
SB154, s. 5
5Section
5. 101.143 (2) (j) of the statutes is created to read:
SB154,5,86
101.143
(2) (j) The department of commerce, in consultation with the
7department of natural resources, shall promulgate rules specifying all of the
8following:
SB154,5,109
1. The conditions under which employes of the department of commerce and
10the department of natural resources must issue approvals under sub. (3) (c) 4.
SB154,5,1211
2. Training and management procedures to ensure that employes comply with
12the requirements under subd. 1.
SB154, s. 6
13Section
6. 101.143 (2e) of the statutes is created to read:
SB154,5,1914
101.143
(2e) Risk-based analysis. (a) The department of commerce, in
15consultation with the department of natural resources, shall promulgate rules
16specifying a method, which shall include consideration of the routes for migration of
17petroleum product contamination, for determining the risk to public health, safety
18and welfare and to the environment posed by discharges for which the department
19of commerce receives notification under sub. (3) (a) 3.
SB154,5,2320
(b) The department of natural resources or, if the discharge is covered under
21s. 101.144 (2) (b), the department of commerce shall apply the method under par. (a)
22to determine the risk posed by a discharge for which the department of commerce
23receives notification under sub. (3) (a) 3.
SB154, s. 7
24Section
7. 101.143 (3) (c) 2. of the statutes is amended to read:
SB154,6,3
1101.143
(3) (c) 2. Prepare a remedial action plan that identifies specific
2remedial action activities proposed to be conducted under subd. 3.
and submit the
3remedial action plan to the department.
SB154, s. 8
4Section
8. 101.143 (3) (cg) of the statutes is created to read:
SB154,6,125
101.143
(3) (cg)
Approval to begin remedial action. 1. Except as provided in
6subds. 2. and 3., to be eligible for an award under sub. (4) an owner or operator may
7not begin remedial action under par. (c) 3. with respect to a discharge without the
8approval of the department of commerce and the department of natural resources.
9The department of commerce and the department of natural resources shall jointly
10determine when it is appropriate to begin remedial action with respect to a discharge
11based on the determination of risk under sub. (2e) (b) for the discharge and the
12availability of funds to pay awards under sub. (4).
SB154,6,1613
2. Subdivision 1. does not apply if the discharge is from a home oil tank system,
14a petroleum product storage system that is described in sub. (4) (ei) 1. or a petroleum
15product storage system that is owned by a school district and that is used for storing
16heating oil for consumptive use on the premises where stored.
SB154,6,1817
3. Subdivision 1. does not apply to remedial action in response to an emergency
18if par. (g) applies.
SB154,6,2119
4. Notwithstanding s. 292.11 (3) and (7) (c), an owner or operator to whom subd.
201. applies is not required to begin remedial action under par. (c) 3. until the owner
21or operator receives approval under subd. 1.
SB154, s. 9
22Section
9. 101.143 (3) (cm) of the statutes is amended to read:
SB154,7,323
101.143
(3) (cm)
Monitoring as remedial action. An owner or operator or person
24owning a home oil tank system may, with the approval of the department of natural
25resources or, if the discharge is covered under s. 101.144 (2) (b), the department of
1commerce, satisfy the requirements of par. (c) 2. and 3. by proposing and
2implementing monitoring to ensure the effectiveness of
the natural
process of
3degradation attenuation of petroleum product contamination.
SB154, s. 10
4Section
10. 101.143 (3) (cp) of the statutes is created to read:
SB154,7,105
101.143
(3) (cp)
Bidding process. 1. Except as provided in subds. 2. to 4., if the
6department of natural resources or, if the site is covered under s. 101.144 (2) (b), the
7department of commerce estimates that the cost to complete a site investigation,
8remedial action plan and remedial action for an occurrence exceeds $60,000, the
9department of commerce shall implement a competitive public bidding process to
10obtain information to assist in making the determination under par. (cs).
SB154,7,1411
2. The department of commerce may not implement the process under subd.
121. if an enforcement standard is exceeded in groundwater within 1,000 feet of a well
13operated by a public utility, as defined in s. 196.01 (5), or within 100 feet of any other
14well used to provide water for human consumption.
SB154,7,1815
3. The department of commerce may not implement the process under subd.
161. if the department of natural resources waives the requirement on the grounds that
17waiver is necessary in an emergency to prevent or mitigate an imminent hazard to
18public health, safety or welfare or to the environment.
SB154,7,2119
4. The department of commerce may not implement the process under subd.
201. if the secretary of natural resources waives the requirement after providing notice
21to the secretary of commerce.
SB154, s. 11
22Section
11. 101.143 (3) (cs) of the statutes is created to read:
SB154,8,523
101.143
(3) (cs)
Determination of least costly method of remedial action. 1. The
24department of commerce shall review the remedial action plan for a site that is
25classified as low or medium priority under s. 101.144 (3m) and shall determine the
1least costly method of complying with par. (c) 3. and with enforcement standards.
2The department shall notify the owner or operator of its determination of the least
3costly method and shall notify the owner or operator that reimbursement for
4remedial action under this section is limited to the amount necessary to implement
5that method.
SB154,8,126
2. The department of natural resources and the department of commerce shall
7review the remedial action plan for a site that is classified as high priority under s.
8101.144 (3m) and shall jointly determine the least costly method of complying with
9par. (c) 3. and with enforcement standards. The departments shall notify the owner
10or operator of their determination of the least costly method and shall notify the
11owner or operator that reimbursement for remedial action under this section is
12limited to the amount necessary to implement that method.
SB154,8,1513
3. In making determinations under subds. 1. and 2., the department of natural
14resources and the department of commerce shall determine whether natural
15attenuation will achieve compliance with par. (c) 3. and with enforcement standards.
SB154, s. 12
16Section
12. 101.143 (3) (cw) of the statutes is created to read:
SB154,8,2417
101.143
(3) (cw)
Annual reviews. 1. The department of commerce shall conduct
18the annual review required under sub. (2) (i) 1. for a site that is classified as low or
19medium priority under s. 101.144 (3m) and shall determine the least costly method
20of completing remedial action at the site in order to comply with par. (c) 3. and with
21enforcement standards. The department shall notify the owner or operator of its
22determination of the least costly method and shall notify the owner or operator that
23reimbursement under this section for any remedial action conducted after the date
24of the notice is limited to the amount necessary to implement that method.
SB154,9,9
12. The department of natural resources and the department of commerce shall
2conduct the annual review required under sub. (2) (i) 1. for a site that is classified as
3high priority under s. 101.144 (3m) and shall jointly determine the least costly
4method of completing remedial action at the site in order to comply with par. (c) 3.
5and with enforcement standards. The departments shall notify the owner or
6operator of their determination of the least costly method and shall notify the owner
7or operator that reimbursement under this section for remedial action conducted
8after the date of the notice is limited to the amount necessary to implement that
9method.
SB154,9,1210
3. In making determinations under subds. 1. and 2., the department of natural
11resources and the department of commerce shall determine whether natural
12attenuation will achieve compliance with par. (c) 3. and with enforcement standards.
SB154, s. 13
13Section
13. 101.143 (3) (d) of the statutes is amended to read:
SB154,9,2314
101.143
(3) (d)
Review of site investigations, remedial action plans and Final
15review of remedial action activities. The department of natural resources or, if the
16discharge is covered under s. 101.144 (2) (b), the department of commerce shall, at
17the request of the claimant, review the site investigation and the remedial action
18plan and advise the claimant on the adequacy of proposed remedial action activities
19in meeting the requirements of s. 292.11. The advice is not an approval of the
20remedial action activities. The department of natural resources or, if the discharge
21is covered under s. 101.144 (2) (b), the department of commerce shall complete a final
22review of the remedial action activities within 60 days after the claimant notifies the
23appropriate department that the remedial action activities are completed.
SB154, s. 14
24Section
14. 101.143 (3) (g) (intro.) and 1. of the statutes are consolidated,
25renumbered 101.143 (3) (g) and amended to read:
SB154,10,9
1101.143
(3) (g)
Emergency situations. Notwithstanding pars. (a) 3. and (c) 1.
2and 2., an owner or operator or the person may submit a claim for an award under
3sub. (4) after notifying the department under par. (a) 3., without completing an
4investigation under par. (c) 1. and without preparing a remedial action plan under
5par. (c) 2. if
any of the following apply: 1. An
an emergency existed which made the
6investigation under par. (c) 1. and the remedial action plan under par. (c) 2.
7inappropriate
and, before conducting remedial action, the owner or operator or
8person notified the department of natural resources of the emergency and the
9department of natural resources authorized emergency action.
SB154, s. 15
10Section
15. 101.143 (3) (g) 2. of the statutes is repealed.
SB154, s. 16
11Section
16. 101.143 (4) (b) (intro.) of the statutes is amended to read:
SB154,10,1512
101.143
(4) (b)
Eligible costs. (intro.)
Eligible Except as provided in par. (c),
13eligible costs for an award under par. (a) include actual costs or, if the department
14establishes a
schedule usual and customary cost under par. (cm)
for an item, usual
15and customary costs for the following items
only:
SB154, s. 17
16Section
17. 101.143 (4) (c) 10. of the statutes is created to read:
SB154,10,1817
101.143
(4) (c) 10. Costs incurred with respect to a discharge if sub. (3) (cg) 1.
18applies and remedial action is begun before approval is given under sub. (3) (cg) 1.
SB154, s. 18
19Section
18. 101.143 (4) (c) 11. of the statutes is created to read:
SB154,10,2120
101.143
(4) (c) 11. Costs that exceed the amount necessary to comply with sub.
21(3) (c) 3. and with enforcement standards using the least costly method.
SB154, s. 19
22Section
19. 101.143 (4) (c) 12. of the statutes is created to read:
SB154,10,2523
101.143
(4) (c) 12. Costs that are incurred after the date of a notice under sub.
24(3) (cw) 1. or 2. and that exceed the amount necessary to comply with sub. (3) (c) 3.
25and with enforcement standards using the method specified in the notice.
SB154, s. 20
1Section
20. 101.143 (4) (cm) of the statutes is renumbered 101.143 (4) (cm) 1.
2and amended to read:
SB154,11,143
101.143
(4) (cm) 1. The department
may
shall establish a schedule of usual and
4customary costs for
any items under par. (b)
and may that are commonly associated
5with claims under this section. The department shall use that schedule to determine
6the amount of
a claimant's eligible costs
for an occurrence for which a competitive
7bidding process is not used, except in circumstances under which higher costs must
8be incurred to comply with sub. (3) (c) 3. and with enforcement standards. For an
9occurrence for which a competitive bidding process is used, the department may not
10use the schedule. In the schedule, the department shall specify the maximum
11number of reimbursable hours for particular tasks and the maximum reimbursable
12hourly rates for those tasks. The department shall use methods of data collection and
13analysis that enable the schedule to be revised to reflect changes in actual costs. This
14subdivision does not apply after June 30, 2001.
SB154, s. 21
15Section
21. 101.143 (4) (cm) 2. of the statutes is created to read: