292.63(3)(am)1.1. An owner or operator or a person owning a home oil tank system is not eligible for an award under this section for costs incurred because of a petroleum product discharge from an underground petroleum product storage tank system or a home oil tank system if the discharge is confirmed after December 31, 1995, and the discharge is confirmed, or activities under
par. (c) or
(g) are begun with respect to that discharge, after the day on which the underground petroleum product storage tank system or home oil tank system first meets the upgrading requirements in
40 CFR 280.21 (b) to (d) or in rules of the department of agriculture, trade and consumer protection relating to the upgrading of existing underground petroleum product storage tank systems, except as provided in
subd. 2.
292.63(3)(am)2.
2. If an underground petroleum product storage tank system or home oil tank system first meets the upgrading requirements in
40 CFR 280.21 (b) to (d) or in rules of the department of agriculture, trade and consumer protection relating to the upgrading of existing underground petroleum product storage tank systems, after December 31, 1993, and the owner or operator or person owning the home oil tank system applies for private pollution liability insurance covering the underground petroleum product storage tank system or home oil tank system within 30 days after the day on which the underground petroleum product storage tank system or home oil tank system first meets those upgrading requirements, then the owner or operator or person remains eligible for an award for costs incurred because of a petroleum product discharge, from that underground petroleum product storage tank system or home oil tank system, which is confirmed, and with respect to which activities under
par. (c) or
(g) are begun, before the 91st day after the day on which the underground petroleum product storage tank system or home oil tank system first meets those upgrading requirements.
292.63(3)(ap)
(ap)
Upgraded aboveground systems. An owner or operator is not eligible for an award under this section for costs incurred because of a petroleum product discharge from a petroleum product storage system that is not an underground petroleum product storage tank system if the discharge is confirmed after December 22, 2001, and the discharge is confirmed, or activities under
par. (c) or
(g) are begun with respect to that discharge, after the day on which the petroleum product storage system first meets the upgrading requirements in rules of the department of agriculture, trade and consumer protection relating to the upgrading of existing petroleum product storage systems that are not underground petroleum product storage tank systems.
292.63(3)(av)
(av)
Claims submitted for petroleum product storage systems on tribal trust lands. The owner or operator of a petroleum product storage system located on trust lands of an American Indian tribe may submit a claim for an award under
sub. (4) if the owner or operator otherwise satisfies
par. (a) and complies with the rules promulgated under this section and any rules of the department of agriculture, trade and consumer protection concerning petroleum product storage systems.
292.63(3)(b)
(b)
Claims submitted by owners or operators who were not owners or operators, or a person owning a home oil tank system when a petroleum product discharge occurred. An owner or operator who was not the owner or operator, or a person who owns a home oil tank system who did not own the home oil tank system, when a petroleum product discharge occurred and who meets the requirements of this section may submit a claim for an award under
sub. (4) unless the owner or operator or the person knew or should have known of the ineligibility of the previous owner or operator or of the person who previously owned the home oil tank system as a result of actions under
sub. (4) (g) 4.,
5. or
6.
292.63(3)(bm)
(bm)
Agents. Except as provided in
par. (bn), an owner or operator or a person owning a home oil tank system may enter into a written agreement with a county or any other person under which that county or other person acts as an agent for the owner or operator or person owning a home oil tank system in conducting the activities required under
par. (c). The owner or operator or person owning a home oil tank system and the agent shall jointly submit the claim for an award under
sub. (4).
292.63(3)(bn)
(bn)
Department of transportation as agent. With the prior approval of the department and the owner or operator or person owning a home oil tank system, the department of transportation may act as an agent for an owner or operator or a person owning a home oil tank system whose petroleum product storage system or home oil tank system is located on property that is or may be affected by a transportation project under the jurisdiction of the department of transportation. The scope of the department of transportation's agency shall be limited to conducting the activities required under
par. (c) and submitting the claim for an award under
sub. (4) to be jointly paid to the owner or operator or person and the department of transportation for the eligible costs incurred by the department of transportation in conducting the activities required under
par. (c).
292.63(3)(c)
(c)
Investigations, remedial action plans and remedial action activities. Before submitting an application under
par. (f), except as provided under
par. (g), an owner or operator or the person shall do all of the following:
292.63(3)(c)1.
1. Complete an investigation to determine the extent of environmental damage caused by a discharge from a petroleum product storage system or home oil tank system.
292.63(3)(c)2.
2. Prepare a remedial action plan that identifies specific remedial action activities proposed to be conducted under
subd. 3. and submit the remedial action plan to the department.
292.63(3)(c)3.
3. Conduct all remedial action activities at the site of the discharge from the petroleum product storage system or home oil tank system necessary to restore the environment to the extent practicable and minimize the harmful effects from the discharge as required under
s. 292.11.
292.63(3)(c)4.
4. Receive written approval from the department that the remedial action activities performed under
subd. 3. meet the requirements of
s. 292.11.
292.63(3)(cm)
(cm)
Monitoring as remedial action. An owner or operator or person owning a home oil tank system may, with the approval of the department, satisfy the requirements of
par. (c) 2. and
3. by proposing and implementing monitoring to ensure the effectiveness of natural attenuation of petroleum product contamination.
292.63(3)(cp)1.1. Except as provided in
subds. 2. and
5., if the department estimates that the cost to complete a site investigation, remedial action plan and remedial action for an occurrence exceeds $60,000, the department shall implement a competitive public bidding process to obtain information to assist in making the determination under
par. (cs).
292.63(3)(cp)2.
2. The department may waive the requirement under
subd. 1. if 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.
292.63(3)(cp)5.
5. The department may waive the requirement under
subd. 1. after providing notice to the secretary of administration.
292.63(3)(cp)6.
6. The department may disqualify a bid received under
subd. 1. if, based on information available to the department and experience with remedial action at other sites, the bid is unlikely to establish an amount to sufficiently fund remedial action that will comply with
par. (c) 3. and with enforcement standards.
292.63(3)(cp)7.
7. The department may disqualify a person from submitting bids under
subd. 1. if, based on past performance of the bidder, the department determines that the person has demonstrated an inability to complete remedial action within established cost limits.
292.63(3)(cs)
(cs)
Determination of least costly method of remedial action. 292.63(3)(cs)1.1. The department shall review the remedial action plan for a site and shall determine the least costly method of complying with
par. (c) 3. and with enforcement standards. The department shall notify the owner or operator of its determination of the least costly method and shall notify the owner or operator that reimbursement for remedial action under this section is limited to the amount necessary to implement that method.
292.63(3)(cs)3.
3. In making determinations under
subd. 1., the department shall determine whether natural attenuation will achieve compliance with
par. (c) 3. and with enforcement standards.
292.63(3)(cs)4.
4. The department may review and modify an amount established under
subd. 1. if the department determines that new circumstances, including newly discovered contamination at a site, warrant those actions.
292.63(3)(cw)1.1. The department shall conduct the annual review required under
sub. (2) (i) 1. for a site and shall determine the least costly method of completing remedial action at the site in order to comply with
par. (c) 3. and with enforcement standards. The department shall notify the owner or operator of its determination of the least costly method and shall notify the owner or operator that reimbursement under this section for any remedial action conducted after the date of the notice is limited to the amount necessary to implement that method.
292.63(3)(cw)3.
3. In making determinations under
subd. 1., the department shall determine whether natural attenuation will achieve compliance with
par. (c) 3. and with enforcement standards.
292.63(3)(cw)4.
4. The department may review and modify an amount established under
subd. 1. if the department determines that new circumstances, including newly discovered contamination at a site, warrant those actions.
292.63(3)(d)
(d)
Final review of remedial action activities. The department shall complete a final review of the remedial action activities within 60 days after the claimant notifies the department that the remedial action activities are completed.
292.63(3)(f)
(f)
Application. A claimant shall submit a claim on a form provided by the department. The claim shall contain all of the following documentation of activities, plans and expenditures associated with the eligible costs incurred because of a petroleum products discharge from a petroleum product storage system:
292.63(3)(f)1.
1. A record of investigation results and data interpretation.
292.63(3)(f)3.
3. Contracts for eligible costs incurred because of the discharge and records of the contract negotiations.
292.63(3)(f)4.
4. Accounts, invoices, sales receipts or other records documenting actual eligible costs incurred because of the discharge.
292.63(3)(f)6.
6. Other records and statements that the department determines to be necessary to complete the application.
292.63(3)(g)
(g)
Emergency situations. Notwithstanding
pars. (a) 3. and
(c) 1. and
2., an owner or operator or the person may submit a claim for an award under
sub. (4) after notifying the department under
par. (a) 3., without completing an investigation under
par. (c) 1. and without preparing a remedial action plan under
par. (c) 2., if an emergency existed which made the investigation under
par. (c) 1. and the remedial action plan under
par. (c) 2. inappropriate and, before conducting remedial action, the owner or operator or person notified the department of the emergency and the department authorized emergency action.
292.63(3)(h)
(h)
Initial eligibility review. When an owner or operator or the person notifies the department under
par. (a) 3., the department shall provide the owner or operator or the person with information on the program under this section and the department's estimate of the eligibility of the owner or operator or of the person for an award under this section.
292.63(4)
(4) Awards for petroleum product investigation, remedial action planning and remedial action activities. 292.63(4)(a)1.1. If the department finds that the claimant meets all of the requirements of this section and any rules promulgated under this section, the department shall issue an award to reimburse a claimant for eligible costs incurred because of a petroleum products discharge from a petroleum product storage system or home oil tank system.
292.63(4)(a)2.
2. The department may not issue an award before all eligible costs have been incurred and written approval is received under
sub. (3) (c) 4., except as follows:
a. The department may issue an award before all eligible costs have been incurred and written approval is received under sub. (3) (c) 4. if the department determines that the delay in issuing the award would cause a financial hardship to the owner or operator or the person.
292.63(4)(a)2.b.
b. The department shall issue an award if the owner or operator or the person has incurred at least $50,000 in unreimbursed eligible costs and has not submitted a claim during the preceding 12 months.
292.63(4)(a)5.
5. The department shall review claims related to home oil tank discharges as soon as the claims are received. The department shall issue an award for an eligible home oil tank discharge as soon as it completes the review of the claim.
292.63(4)(a)5m.
5m. The department shall review claims related to discharges from farm tanks described in
par. (ei) as soon as the claims are received. The department shall issue an award for an eligible discharge from a farm tank described in
par. (ei) as soon as it completes the review of the claim.
292.63(4)(a)6.
6. In any fiscal year, the department may not award more than 5% of the amount appropriated under
s. 20.370 (6) (fr) as awards for petroleum product storage systems described in
par. (ei).
292.63(4)(a)7.
7. In any fiscal year, the department may not award more than 5% of the amount appropriated under
s. 20.370 (6) (fr) as awards for petroleum product storage systems that are owned by school districts and that are used for storing heating oil for consumptive use on the premises where stored.
292.63(4)(a)8.
8. If an owner or operator or person owning a home oil tank system is conducting approved remedial action activities that were necessitated by a petroleum product discharge from a petroleum product storage system or home oil tank system and those remedial action activities have not remedied the discharge, then the department may approve financial assistance under this section for enhancements to the approved remedial action activities or different remedial action activities that the department determines will remedy the discharge without increasing the overall costs of remedying the discharge. The total amount of an original award under this section plus additional financial assistance provided under this subdivision is subject to the limits in
pars. (d) to
(e),
(ei) and
(em) on amounts of awards.
292.63(4)(b)
(b)
Eligible costs. Except as provided in
par. (c) or
(cc), eligible costs for an award under
par. (a) include actual costs or, if the department establishes a usual and customary cost under
par. (cm) for an item, usual and customary costs for the following items:
292.63(4)(b)1.
1. Testing to determine tightness of tanks and lines if the method used is approved by the department.
292.63(4)(b)2.
2. Removal of petroleum products from surface waters, groundwater or soil.
292.63(4)(b)3.
3. Investigation and assessment of contamination caused by a petroleum product storage system or a home oil tank system.
292.63(4)(b)9.
9. Maintenance of equipment for petroleum product recovery or remedial action activities.
292.63(4)(b)10.
10. Restoration or replacement of a private or public potable water system.
292.63(4)(b)14.
14. Other costs identified by the department as necessary for proper investigation, remedial action planning and remedial action activities to meet the requirements of
s. 292.11.
292.63(4)(b)15.
15. For an owner or operator only, compensation to 3rd parties for bodily injury and property damage caused by a petroleum products discharge from an underground petroleum product storage tank system.
292.63 Cross-reference
Cross-reference: See also s.
Ins 6.35, Wis. adm. code.
292.63(4)(c)
(c)
Exclusions from eligible costs. Eligible costs for an award under
par. (a) do not include the following, regardless of whether a competitive bidding process is used:
292.63(4)(c)2.
2. Costs of retrofitting or replacing a petroleum product storage system or home oil tank system.
292.63(4)(c)3.
3. Other costs that the department determines to be associated with, but not integral to, the eligible costs incurred because of a petroleum products discharge from a petroleum product storage system or home oil tank system.
292.63(4)(c)4.
4. Costs, other than costs for compensating 3rd parties for bodily injury and property damage, which the department determines to be unreasonable or unnecessary to carry out the remedial action activities as specified in the remedial action plan.
292.63(4)(c)5.
5. Costs for investigations or remedial action activities conducted outside this state.
292.63(4)(c)7.
7. Costs of emptying, cleaning and disposing of the tank and other costs normally associated with closing or removing any petroleum product storage system or home oil tank system unless those costs were incurred before November 1, 1991, or unless the claimant had signed a contract for services for activities required under
sub. (3) (c) or a loan agreement, note or commitment letter for a loan for the purpose of conducting activities required under
sub. (3) (c) before November 1, 1991.
292.63(4)(c)8.
8. Interest costs incurred by an applicant that exceed interest at the following rate:
292.63(4)(c)8.a.
a. If the applicant has gross revenues of not more than $25,000,000 in the most recent tax year before the applicant submits a claim, 1% under the prime rate.
292.63(4)(c)8.d.
d. If the applicant has gross revenues of more than $25,000,000 in the most recent tax year before the applicant submits a claim, 4%.
292.63(4)(c)9.
9. Loan origination fees incurred by an applicant that exceed 2% of the principal amount of the loan.
292.63(4)(c)11.
11. Costs that exceed the amount necessary to comply with
sub. (3) (c) 3. and with enforcement standards using the least costly method.
292.63(4)(c)12.
12. Costs that are incurred after the date of a notice under
sub. (3) (cw) 1. and that exceed the amount necessary to comply with
sub. (3) (c) 3. and with enforcement standards using the method specified in the notice.
292.63(4)(cc)1.a.a. Except as provided in
subd. 1m. or
2., if an applicant's final claim is submitted more than 120 days after receiving written notification that no further remedial action is necessary with respect to the discharge, interest costs incurred by the applicant after the 60th day after receiving that notification are not eligible costs.
292.63(4)(cc)1.c.
c. Except as provided in
subd. 2., if an applicant does not complete the investigation of the petroleum product discharge by the first day of the 61st month after the month in which the applicant notified the department under
sub. (3) (a) 3. or October 1, 2003, whichever is later, interest costs incurred by the applicant after the later of those days are not eligible costs.
292.63(4)(cc)1m.
1m. If an applicant received written notification that no further remedial action is necessary with respect to a discharge before September 1, 2001, and the applicant's final claim is submitted more than 120 days after September 1, 2001, interest costs incurred by the applicant after the 120th day after September 1, 2001, are not eligible costs.
292.63(4)(cc)2.a.
a. An applicant that is a local unit of government, if federal or state financial assistance other than under this section, has been provided for that expansion or redevelopment.
292.63(4)(cc)2.b.
b. An applicant that is engaged in the expansion or redevelopment of brownfields, as defined in
s. 238.13 (1) (a), if federal or state financial assistance other than under this section, has been provided for that expansion or redevelopment.
