Ch. NR 747 Note
Note: Chapter ILHR 47 was created as an emergency rule effective January 1, 1993.
Chapter ILHR 47 was renumbered Chapter Comm 47 under s. 13.93 (2m) (b) 1., Stats., and corrections made under s. 13.93 (2m) (b) 7., Stats.,
Register, December, 1998, No. 516. Chapter Comm 47 was renumbered chapter SPS 347 under s. 13.92 (4) (b) 1., Stats.,
Register December 2011 No. 672.
Chapter SPS 347 was renumbered Chapter NR 747 under s. 13.92 (4) (b) 1., Stats., Register October 2013 No. 694. NR 747.01(1)
(1)
PECFA Fund. The purpose of this chapter is to provide information on the Petroleum Environmental Cleanup Fund program, also referred to as the Petroleum Storage Environmental Remedial Action Fund and the Petroleum Storage Remediation Fund; outline the processes and procedures for filing a claim for an eligible remediation and specify the process of determining award amounts.
NR 747.01(2)
(2) Statutory authority. This chapter is adopted pursuant to s.
292.63, Stats.
NR 747.01(3)(a)(a) The PECFA fund does not relieve a responsible party from liability. The individual or organization responsible for a contaminated property shall carry out the remediation of that property. PECFA's role is to provide monetary awards to responsible parties who have completed and paid for PECFA-approved remediation activities and services. The availability or unavailability of PECFA funding shall not be the determining factor as to whether a remediation shall be completed.
NR 747.01(3)(b)
(b) The responsible party shall be the primary point for the control of costs within the PECFA program. The focus of the program will be to maintain the responsible party as the central control point throughout the claim process.
NR 747.01(4)
(4) Control of costs. The framework for the control of costs within the PECFA program shall be based upon the responsible party minimizing costs in all phases of the remediation. The primary structural factors for the control of costs include the following:
NR 747.01(4)(a)
(a) The selection of a consulting firm through a comparison of at least 3 proposals. Once selected, the firm may only provide professional consulting services on the remediation;
NR 747.01(4)(b)
(b) The requirement to purchase or contract for commodity services through the use of competitive bids;
NR 747.01(4)(c)
(c) The consideration of the costs and benefits of remediation alternatives;
NR 747.01(4)(d)
(d) The use of environmental factors to determine the eligible range of responses on a site;
NR 747.01(4)(e)
(e) The use of site bundling and competitive bidding to reduce costs;
NR 747.01(4)(f)
(f) The registration for participation in the PECFA program, only those consultants and consulting firms which meet specific qualifying criteria and standards of conduct; and
NR 747.01(4)(g)
(g) The publication of cost guidelines for cost-effective remediations.
NR 747.01(5)
(5) Most cost-effective remediation alternative. The PECFA fund shall ensure that awards are made for only the most cost-effective remediation alternative. The department may allow a higher cost alternative provided:
NR 747.01(5)(a)
(a) The responsible party assures personal payment of the difference in cost between the lowest cost remediation and the higher cost alternative desired; or
NR 747.01(5)(b)
(b) The department determines that the objectives of the PECFA program would be furthered by the use of a specific remedial technology.
NR 747.01 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94; am. (2), (3) (a), (4) (c) and (5), renum. (4) (d) and (e) to be (4) (f) and (g), cr. (4) (d) and (e),
Register, December, 1998, No. 516, eff. 1-1-99;
correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694. NR 747.015
NR 747.015 Definitions. In this chapter:
NR 747.015(1)
(1) “Active treatment" means a remedial activity that is not natural attenuation or monitoring but is conducted in situ. Active treatment includes use of biological or chemical agents to augment remediation of contamination.
NR 747.015(2)
(2) “Agent" means a person or organization designated by an owner, operator or person owning a home oil tank system to act on behalf of the owner or operator or person owning the home oil tank system in conducting the remedial activities.
NR 747.015(3)
(3) “Annual aggregate" means the total amount of awards that an owner or operator may obtain during a program year under this chapter.
NR 747.015(4)
(4) “Award" means the reimbursement provided to an owner or operator or person owning a home heating oil tank system for eligible costs incurred because of a petroleum product discharge from a petroleum product storage system or home oil tank system.
NR 747.015(5)
(5) “Bodily injury" has the meaning under s.
292.63 (1) (ad), Stats., however, this term shall not include those liabilities which, consistent with standard insurance industry practices, such as specified in
s. Ins 6.35, are excluded from coverage in liability insurance policies for bodily injury.
NR 747.015(6)
(6) “Claimant" means any party who is eligible to submit a claim for an award under this chapter. Under this chapter, the claimant may also be the responsible party.
NR 747.015(7)
(7) “Closed remedial action" means that the department has determined, based on information available at the time, that no further action is necessary. A closed remedial action includes the approval of remediation by natural attenuation as a final site remedy. A determination that no further action is required might include one or more deed or use restrictions placed on a property, or other requirements, which are conditions for approval.
NR 747.015(8)
(8) “Consultant" means a person who performs or provides professional investigation, interpretation, design or technical project management services including, but not limited to, conducting site investigations, preparing remedial action plans and alternatives, and interpretation of data for passive or active bio-remediation systems. An owner or operator may prepare bid documents and complete other requirements of the bid process without being designated as a consultant.
NR 747.015 Note
Note: See s.
SPS 305.81 for departmental credential requirements for consultants.
NR 747.015(9)
(9) “Consulting firm" means a corporation, partnership, sole proprietor or independent contractor who performs or provides professional engineering or hydrogeology services including but not limited to conducting site investigations, preparing remedial action plans and alternatives, designing and supervising the installation of remedial systems and plans for passive bio-remediation with long-term monitoring.
NR 747.015 Note
Note: See s.
SPS 305.80 for departmental credential requirements for consulting firms.
NR 747.015(10)
(10) “Costs incurred" means costs integral to the remediation of a site which have been paid by a responsible party. Costs are considered incurred when funds are disbursed to the creditor, i.e., invoices have been paid and verification is available.
NR 747.015(11)
(11) “Department" means the department of natural resources.
NR 747.015(12)
(12) “Discharge" means spilling, leaking, pumping, pouring, emitting, or emptying, but does not include dumping.
NR 747.015(13)
(13) “DNR" means the Wisconsin department of natural resources.
NR 747.015(14)
(14) “Emergency action" means an immediate response to protect public health or safety.
NR 747.015 Note
Note: An emergency action would normally be expected to be directly related to a sudden event or discovery. Simple removal of contaminated soils, recovery of free product, or relief from financial hardship are not considered emergency actions.
NR 747.015(15)(c)
(c) An owner or operator who is completely independent of any other business or corporation with coverage under the PECFA program.
NR 747.015(16)
(16) “Financial hardship claimant" means a claimant that has employed no more than 4 individuals, who are not immediate family members, at any time during the year prior to claim submittal and is able to document this through payroll or tax records.
NR 747.015(17)
(17) “Fund" means the petroleum environmental cleanup fund administered by the department.
NR 747.015(18)
(18) “Grossly negligent" means the conscious or reckless disregard for the negative consequences of one's actions or inaction.
NR 747.015 Note
Note: The definition in chapter ATCP 93 for heating oil reads as follows: “ `Heating fuel' or `heating oil' means petroleum that is No. 1, No. 2, No. 4—light, No. 4—heavy, No. 5—light, No. 5—heavy, and No. 6 technical grade grades of fuel oil; other residual fuel oils, including Navy Special Fuel Oil and Bunker C; and other fuels when used as substitutes for one of these, including used oil or used cooking oils when used in an oil burner to provide space heat or processing heat for consumptive use on the property."
NR 747.015 Note
Note: Section
292.63 (1) (cm), Stats., defines a home heating oil tank system as an underground home heating oil tank used for consumptive use on the premises together with any on-site integral piping or dispensing system.
NR 747.015(21)
(21) “Immediate family members" means parents, stepparents, grandparents, children, stepchildren, grandchildren, brothers (and their spouses), sisters (and their spouses), aunts, uncles, sons-in-law or daughters-in-law of the claimant or the claimant's spouse.
NR 747.015(22)
(22) “Independent" means entirely and completely free from any common control, guidance, ability to influence, significant financial interest or mutual benefit. Significant financial interest means ownership of more than 5% of a firm or business entity by the consulting firm, consultant or the consultant's family.
NR 747.015(23)
(23) "Interim action" means a response action taken to contain, stabilize or recover a discharge of a hazardous substance, in order to minimize any threats to public health or safety, while other response actions are being taken or planned for the site or facility.
NR 747.015(24)
(24) “Investigation awards" means awards that are made for investigative activities when no discharge is found, if the owner, operator or person owning a home heating oil tank system has written direction from the department to conduct an investigation under s.
292.63 (4) (es), Stats.
NR 747.015(25)
(25) “Loan secured" means the point at which a financial organization and customer have completed all documents associated with a commitment of funds and an agreement to repay the funding. The term applies to original loans and to the creation of additional funding.
NR 747.015(26)
(26) “Natural attenuation" means the reduction in the concentration and mass of a substance and its breakdown products in groundwater or soils, or both, due to naturally occurring physical, chemical or biological processes.
NR 747.015 Note
Note: Section
292.63 (1) (cs), Stats., defines occurrence as a contiguous contaminated area resulting from one or more petroleum product discharges.
NR 747.015 Note
Note: In
Mews vs. Wisconsin Department of Commerce,
2004 WI APP 24, 676 NW 2d 160 Wis APP. (2004), the Court concluded that this definition is “published and unambiguous." In arriving at this conclusion, the Court agreed with the department that without an intervening, unimpacted area of no detects, all contamination at a site is contiguous and is therefore a single occurrence.
NR 747.015 Note
Note: Section
292.63 (1) (d), Stats., defines operator as:
NR 747.015 Note
(d) 1. A person who operates a petroleum product storage system, regardless of whether the system remains in operation and regardless of whether the person operates or permits the use of the system at the time the environmental pollution occurs; or
NR 747.015 Note
2. A subsidiary or parent corporation of the person specified under subd. 1.
NR 747.015(29)
(29) “Outstanding unreimbursed loan amount" means funds that have been disbursed by the financial organization for actual costs incurred by the borrower's service providers and any earned interest charges, less any amounts reimbursed by the PECFA program.
NR 747.015(30)
(30) “Owner" is an entity under the PECFA program or a trust and in addition has the meaning set forth in s.
292.63 (1) (e), Stats.
NR 747.015 Note
Note: Section
292.63 (1) (e), Stats., defines owner as any of the following:
NR 747.015 Note
(e) 1. A person who owns, or has possession or control of, a petroleum product storage system or who receives direct or indirect consideration from the operation of a system regardless of whether the system remains in operation and regardless of whether the person owns or receives consideration at the time the discharge occurs;
NR 747.015 Note
2. A subsidiary or parent corporation of the person specified under subd. 1.
NR 747.015(31)
(31) “Passive bio-remediation" has the same meaning as “natural attenuation".
NR 747.015(32)
(32) “PECFA" means petroleum environmental cleanup fund award, as established in s.
292.63, Stats.
NR 747.015 Note
Note: Chapter
ATCP 93 defines person as an individual, trust, firm, joint stock company, federal agency, corporation, state, municipality, commission, political subdivision of the state, or any interstate body. “Person" also includes a consortium, a joint venture, a commercial entity, and the United States government.
NR 747.015 Note
Note: Section
292.63 (1) (f), Stats., defines a petroleum product as gasoline, gasoline-alcohol fuel blends, kerosene, fuel oil, burner oil, diesel fuel oil or used motor oil.
NR 747.015 Note
Note: Section
292.63 (1) (fg), Stats., defines a petroleum product storage system as a storage tank that is located in Wisconsin and is used to store petroleum products together with any on-site integral piping or dispensing system. The term does not include pipeline facilities; tanks of 110 gallons or less capacity; residential tanks of 1,100 gallons or less capacity storing petroleum products that are not for resale; farm tanks of 1,100 gallons or less capacity storing petroleum products that are not for resale, except as provided in sub. (4) (ei); tanks used for storing heating oil for consumptive use on the premises where stored, except for heating oil tanks owned by school districts and heating oil tanks owned by technical college districts and except as provided in sub. (4) (ei); or tanks owned by Wisconsin or the federal government.
NR 747.015(36)
(36) “Pollution impairment" means bodily injury or property damage arising from the actual, alleged or threatened discharge, dispersal, seepage, migration, release, or escape of a petroleum product.
NR 747.015(37)
(37) “Prime rate" means the most recent rate published in the
Wall Street Journal under Money Rates — Prime Rate.
NR 747.015 Note
Note: The prime rate is the base rate on corporate loans posted by at least 75% of the nation's 30 largest banks.
NR 747.015 Note
Note: Section
292.63 (1) (g), Stats., defines program year as the period beginning on August 1 and ending on the following July 31.
NR 747.015(39)
(39) “Progress payment" means an award made prior to the full completion of a remediation and may include payments after completion of an emergency action, site investigation, remediation, maintenance or operation, or other points as defined in this chapter.
NR 747.015 Note
Note: Section
292.63 (1) (gm), Stats., defines property damage as not including those liabilities which are exclusions in liability insurance policies for property damage, other than liability for remedial action associated with petroleum product discharges from petroleum product storage systems. The statute also excludes loss of fair market value.
NR 747.015(41)
(41) “Remedial action plan" means a document that reports a remedial action alternative and provides the basis for its recommendation along with projected costs and other required detail.
NR 747.015(42)
(42) “Responsible party" means either the owner, operator, person owning a home oil tank system or claimant who is financially responsible for all costs of remediation of a discharge of petroleum product.
NR 747.015(43)
(43) “Site bundling" means providing investigation or remedial action services, or both, for multiple occurrences while utilizing one consulting firm or common commodity services and providers, or both.
NR 747.015 Note
Note: Section
292.63 (1) (gs) defines service provider as a consultant, testing laboratory, monitoring well installer, soil boring contractor, other contractor, lender or any other person who provides a product or service for which a claim for reimbursement has been or will be filed under this section (ch.
NR 747), or a subcontractor of such a person.
