101.143(4)(es)3.
3. If an award has been made under this paragraph and a discharge or contamination is found in a subsequent investigation, the department shall reduce the award under
par. (d) or
(e) by the amount paid under this paragraph.
101.143(4)(f)
(f)
Contributory negligence. Contributory negligence shall not be a bar to submitting a claim under this section and no award under this section may be diminished as a result of negligence attributable to the claimant or any person who is entitled to submit a claim.
101.143(4)(g)
(g)
Denial of claims, limits on awards. The department shall deny a claim under
par. (a) if any of the following applies:
101.143(4)(g)3.
3. The claimant has been grossly negligent in the maintenance of the petroleum product storage system or home oil tank system.
101.143(4)(g)4.
4. The claimant intentionally damaged the petroleum product storage system or home oil tank system.
101.143(4)(g)6.
6. The claimant willfully failed to comply with laws or rules of this state concerning the storage of petroleum products.
101.143(4)(g)7.
7. The petroleum product discharge was caused by a person who provided services or products to the claimant or to a prior owner or operator of the petroleum product storage system or home oil tank system.
101.143(4)(h)1.1. Notwithstanding
pars. (d) 2. (intro.),
(dm) 2. (intro.),
(e) 2. and
(em) 2., if an owner or operator or person owning a home oil tank system prepares and submits a claim that includes ineligible costs that are identified under
subd. 2., the department shall calculate the award by determining the amount that the award would otherwise be under
par. (d),
(dm),
(e) or
(em) based only on the eligible costs and then by reducing that amount by 50% of the amount of the ineligible costs identified under
subd. 2. that are included in the claim.
101.143(4)(h)1m.
1m. If a consultant prepares a claim that is submitted by a claimant and that includes ineligible costs that are identified under
subd. 2., the consultant shall pay to the department an amount equal to 50% of the ineligible costs identified under
subd. 2. that are included in the claim. A consultant may not charge the owner or operator for any amount that the consultant is required to pay under this subdivision. Payments made under this subdivision shall be deposited in the petroleum inspection fund.
101.143(4)(h)2.
2. The department shall promulgate a rule identifying the ineligible costs to which
subds. 1. and
1m. apply.
101.143(4e)(a)(a) Notwithstanding
sub. (4) (g), when the department denies a claim under
sub. (3) because of fraud, gross negligence or willful misconduct on the part of an owner or operator, the department shall pay, to a person who loaned money to the owner or operator for the purpose of conducting activities under
sub. (3) (c), an amount equal to the amount that would have been paid under
sub. (4) for otherwise eligible expenses actually incurred, but not more than the amount specified under
par. (b), if all of the following conditions are satisfied:
101.143(4e)(a)1.
1. The lender assigns to the department an interest in the collateral pledged by the owner or operator for the sole purpose of securing the loan that was made to finance the activities under
sub. (3) (c). If the amount of the payment under this subsection is less than the amount of the loan, the lender shall assign to the department that fraction of the lender's interest in the collateral that equals the ratio of the amount of the payment under this subsection to the amount of the loan.
101.143(4e)(a)2.
2. For a loan that is made after July 29, 1995, before the lender made any disbursement of the loan the department provided a letter indicating its preliminary determination that the owner or operator was eligible for an award under
sub. (4).
101.143(4e)(a)3.
3. For a loan that is made after July 29, 1995, claims for payment under
sub. (3) are made after completion of the site investigation and remedial action plan, after completion of the remedial action and annually for any continuing maintenance, monitoring and operation costs.
101.143(4e)(b)
(b) Payment under this section may not exceed the amount of the loan. If the loan is made after July 29, 1995, payment under this section may not exceed the amount of the loan disbursements made before the department notifies the lender that the claim may be denied.
101.143(4e)(c)
(c) Assignment of an interest in collateral to the department under
par. (a) 1. does not deprive a lender of its right to any cause of action arising out of the loan documents.
101.143(4e)(d)
(d) Any payments made by the department under this subsection constitute a lien upon the property on which the remedial action is conducted if the department records the lien with the register of deeds in the county in which the property is located.
101.143(4m)
(4m) Assignment of awards. The filing by a claimant with the department of an assignment of an award under
sub. (4) to a person who loans money to the claimant for the purpose of conducting activities required under
sub. (3) (c) creates and perfects a lien in favor of the assignee in the proceeds of the award. The lien secures all principal, interest, fees, costs and expenses of the assignee related to the loan. The lien under this subsection has priority over any previously existing or subsequently created lien, assignment, security interest or other interest in the proceeds of the award.
101.143(5)(a)(a)
Sale of remedial equipment or supplies. If a person who received an award under this section sells equipment or supplies that were eligible costs for which the award was issued, the person shall pay the proceeds of the sale to the department. The proceeds shall be paid into the petroleum inspection fund.
101.143(5)(am)
(am)
Right of action. A right of action under this section shall accrue to the state against an owner, operator or other person only if one of the following applies:
101.143(5)(am)1.
1. The owner, operator or other person submits a fraudulent claim or does not meet the requirements under this section and an award is issued under this section to the owner, operator or other person for eligible costs under this section or payment is made to a lender under
sub. (4e).
101.143(5)(b)
(b)
Action to recover awards. The attorney general shall take action as is appropriate to recover moneys to which the state is entitled under
par. (am). The department shall request that the attorney general take action if the department discovers a fraudulent claim after an award is issued.
101.143(5)(c)
(c)
Disposition of funds. The net proceeds of a recovery under
par. (b) shall be paid into the petroleum inspection fund.
101.143(6)
(6) Requirement for proof of financial responsibility. 101.143(6)(a)(a) An owner or operator covered under
sub. (4) (d) shall provide to the department proof of financial responsibility for the first $5,000 of eligible costs incurred because of a petroleum products discharge. The proof of financial responsibility shall be in a form determined by the department to provide assurance equal to that provided under
40 CFR 280.97 (b) (1) 2. b. that may include a bond, an irrevocable letter of credit, a deposit or an escrow account made payable to or established for the benefit of the department.
101.143(6)(b)
(b) The department, after consultation with the petroleum storage environmental cleanup council, shall determine whether proof of financial responsibility submitted under
par. (a) satisfies
par. (a).
101.143(6s)
(6s) Arbitration. Upon the request of a person who files an appeal of a decision of the department under this section, if the amount at issue is $100,000 or less, the appeal shall be heard by one or more individuals designated by the department to serve as arbitrator under rules promulgated for this purpose by the department. In such an arbitration, the arbitrator shall render a decision at the conclusion of the hearing, or within 5 business days after the conclusion of the hearing if the arbitrator determines that additional time is needed to review materials submitted during the hearing, affirming, modifying or rejecting the decision of the department. The arbitrator shall promptly file his or her decision with the department. The decision of the arbitrator is final and shall stand as the decision of the department. An arbitrator's decision may not be cited as precedent in any other proceeding before the department or before any court. A decision under this subsection is subject to review under
ss. 227.53 to
227.57 only on the ground that the decision was procured by corruption, fraud or undue means. The record of a proceeding under this subsection shall be transcribed as provided in
s. 227.44 (8).
101.143(7)(a)(a) No common law liability, and no statutory liability which is provided in a statute other than this section, for damages resulting from a petroleum product storage system or home oil tank system is affected by this section. Except as provided in
par. (am), the authority, power and remedies provided in this section are in addition to any authority, power or remedy provided in any statute other than this section or provided at common law.
101.143(7)(am)
(am) An award under this section is the exclusive method for the recovery of the amount of eligible costs equal to the amount of the award that may be issued under this section.
101.143(7)(b)
(b) If a person conducts a remedial action activity for a discharge at a petroleum product storage system or home oil tank system site, whether or not the person files a claim under this section, the claim and remedial action activity conducted are not evidence of liability or an admission of liability for any potential or actual environmental pollution.
101.143(7m)
(7m) Intervention in 3rd-party actions. An owner or operator of an underground petroleum product storage tank system shall notify the department of any action by a 3rd party against the owner or operator for compensation for bodily injury or property damage caused by a petroleum products discharge from the underground petroleum product storage tank system if the owner or operator may be eligible for an award under this section. The department may intervene in any action by a 3rd party against an owner or operator for compensation for bodily injury or property damage caused by a petroleum products discharge from an underground petroleum product storage tank system if the owner or operator may be eligible for an award under this section for compensation awarded in the action.
101.143(8)
(8) Petroleum storage environmental cleanup council. The petroleum storage environmental cleanup council shall do all of the following:
101.143(8)(a)
(a) Advise the secretary on any rules which may be promulgated under this section.
101.143(8)(b)
(b) Review and advise the secretary and the secretary of natural resources on the implementation of the petroleum product remedial action program established under this section.
101.143(9)(a)(a) The department shall promulgate rules prescribing requirements for the records to be maintained by an owner or operator, person owning a home oil tank system or service provider and the periods for which they must retain those records.
101.143(9)(b)
(b) The department may inspect any document in the possession of an owner or operator, person owning a home oil tank system or service provider or any other person if the document is relevant to a claim for reimbursement under this section.
101.143(9m)(a)(a) For purposes of
subch. II of ch. 18, the petroleum storage remedial action program is a special fund program, and the petroleum inspection fund is a special fund. The petroleum inspection fund is a segregated fund created by the imposition of fees, penalties or excise taxes. The legislature finds and determines that a nexus exists between the petroleum storage remedial action program and the petroleum inspection fund in that fees imposed on users of petroleum are used to remedy environmental damage caused by petroleum storage.
101.143(9m)(b)
(b) Deposits, appropriations or transfers to the petroleum inspection fund for the purposes of the petroleum storage remedial action program may be funded with the proceeds of revenue obligations issued subject to and in accordance with
subch. II of ch. 18 and, if designated a higher education bond, in accordance with
subch. IV of ch. 18.
101.143(9m)(e)
(e) The department shall have all other powers necessary and convenient to distribute the special fund revenues and to distribute the proceeds of the revenue obligations in accordance with
subch. II of ch. 18 and, if designated a higher education bond, in accordance with
subch. IV of ch. 18.
101.143(9m)(f)
(f) The department may enter into agreements with the federal government or its agencies, political subdivisions of this state, individuals or private entities to insure or in any other manner provide additional security for the revenue obligations issued under this subsection.
101.143(9m)(g)1.1. Subject to the limitation under
subd. 2., the building commission shall contract revenue obligations under this subsection, as soon as practicable after October 29, 1999, in the maximum amount that the building commission believes can be fully paid on a timely basis from moneys received or anticipated to be received.
101.143(9m)(g)2.
2. Revenue obligations issued under this subsection may not exceed $436,000,000 in principal amount, excluding any obligations that have been defeased under a cash optimization program administered by the building commission. In addition to this limit on principal amount, the building commission may contract revenue obligations under this subsection as the building commission determines is desirable to fund or refund outstanding revenue obligations, to pay issuance or administrative expenses, to make deposits to reserve funds, or to pay accrued or capitalized interest.
101.143(9m)(h)
(h) Unless otherwise expressly provided in resolutions authorizing the issuance of revenue obligations or in other agreements with the owners of revenue obligations, each issue of revenue obligations under this subsection shall be on a parity with every other revenue obligation issued under this subsection and in accordance with
subch. II of ch. 18 and, if designated a higher education bond, in accordance with
subch. IV of ch. 18.
101.143(9m)(i)
(i) Recognizing its moral obligation to do so, the legislature expresses its expectation and aspiration that, if the legislature reduces the rate of the petroleum inspection fee and if the funds in the petroleum inspection fund are insufficient to pay the principal and interest on the revenue obligations issued under
subch. II or
IV of ch. 18 pursuant to this subsection, the legislature shall make an appropriation from the general fund sufficient to pay the principal and interest on the obligations.
101.143(10)(a)(a) Any owner or operator, person owning a home oil tank system or service provider who fails to maintain a record as required by rules promulgated under
sub. (9) (a) may be required to forfeit not more than $2,000. Each day of continued violation constitutes a separate offense.
101.143(10)(b)
(b) Any owner or operator, person owning a home oil tank system or service provider who intentionally destroys a document that is relevant to a claim for reimbursement under this section is guilty of a Class G felony.
101.143(11)
(11) Reports. No later than each January 1 and July 1, the department of commerce and the department of natural resources shall submit to the governor, to the joint legislative audit committee, to the joint committee on finance and to the appropriate standing committees of the legislature, under
s. 13.172 (3), a report on the program under this section. The departments shall include all of the following information in the report:
101.143(11)(a)
(a) All of the following information for each petroleum product storage system and home oil tank system from which a discharge has occurred for which remedial action activities are being conducted:
101.143(11)(a)1.
1. The date on which the record of the site investigation was received.
101.143(11)(a)2.
2. The environmental risk factors, as defined by the department of commerce by rule, identified at the site.
101.143(11)(c)
(c) The name of each person providing engineering consulting services to a claimant under this section and the number of claimants to whom the person has provided those services.
101.143(11)(d)
(d) The charges for engineering consulting services for sites for which approvals are given under
sub. (3) (c) 4. and for other sites.
101.143(11)(e)
(e) The charges by service providers other than engineering consultants for services for which reimbursement is provided under this section, including excavating, hauling, laboratory testing and landfill disposal.
101.143(11)(em)
(em) Whether disputes have arisen between the departments under
sub. (3) (cw) 2. and, if so, how those disputes have been resolved.
101.143(11)(f)
(f) Strategies for recording and monitoring complaints of fraud in the program under this section and for the use of employees of the department of commerce who conduct audits to identify questionable claims and investigate complaints.
101.143 History
History: 1987 a. 399;
1989 a. 31,
254,
255;
1991 a. 39,
82,
269;
1993 a. 16,
301,
416,
491;
1995 a. 27 ss.
3665 to
3683m,
9116 (5);
1995 a. 227,
247,
378,
417;
1997 a. 27,
35,
237,
252,
283;
1999 a. 9,
185;
2001 a. 16,
109;
2003 a. 33.
101.143 Cross-reference
Cross Reference: See also ss.
Comm 46.01 and
47.01, Wis. adm. code.
101.143 Annotation
That the commingling of contaminants from separate tanks was below DNR clean-up levels did not eliminate the fact that commingling can still occur resulting in one occurrence under sub. (1) (cs). Mews v. Department of Commerce, 2004 WI App 24,
269 Wis. 2d 641,
676 N.W.2d 160,
03-0055.
101.143 Annotation
The meeting described in sub. (2m) is intended to promote interagency coordination and is directory in nature rather than mandatory. Interdepartmental coordination may occur outside of meetings. However, the commerce department is not absolved of its responsibility to hold the interdepartmental meeting with the site owner required under sub. (2m). Mews v. Department of Commerce, 2004 WI App 24,
269 Wis. 2d 641,
676 N.W.2d 160,
03-0055.
101.143 Annotation
The proceeds of general obligation bonds may be used to fund awards under this section.
81 Atty. Gen. 114.
101.144
101.144
Petroleum storage tank discharges. 101.144(1)(aq)
(aq) Except as provided under
sub. (3g), "high-risk site" means the site of a discharge of a petroleum product from a petroleum storage tank if at least one of the following applies:
101.144(1)(aq)1.
1. Repeated tests show that the discharge has resulted in a concentration of contaminants in a well used to provide water for human consumption that exceeds a preventive action limit, as defined in
s. 160.01 (6).
101.144(1)(aq)2.
2. Petroleum product that is not in dissolved phase is present with a thickness of 0.01 feet or more, as shown by repeated measurements.
101.144(1)(aq)3.
3. An enforcement standard is exceeded in groundwater within 1,000 feet of a well operated by a public utility, as defined in
s. 196.01 (5), or within 100 feet of any other well used to provide water for human consumption.
101.144(1)(bm)
(bm) "Petroleum storage tank" means a storage tank that is used to store petroleum products together with any on-site integral piping or dispensing system. "Petroleum storage tank" does not include a pipeline facility.
101.144(1)(c)
(c) "Remedial action" means action that is taken in response to a discharge and that is necessary to restore the environment to the extent practicable and to minimize the harmful effects of the discharge to the air, lands and waters of this state.
101.144(1)(d)
(d) "Responsible person" means a person who owns or operates a petroleum storage tank, a person who causes a discharge from a petroleum storage tank or a person on whose property a petroleum storage tank is located.
