292.63(4)(dm)4.
4. The department may not issue awards under this paragraph to an owner or operator for eligible costs incurred in one program year that total more than the following:
292.63(4)(dm)4.a.
a. For an owner or operator of 100 or fewer petroleum product storage systems that are not underground petroleum product storage tank systems, $1,000,000.
292.63(4)(dm)4.b.
b. For an owner or operator of more than 100 petroleum product storage systems that are not underground petroleum product storage tank systems, $2,000,000.
292.63(4)(dm)5.
5. The department shall recalculate all awards issued under par.
(e) before July 29, 1995, for eligible costs incurred before May 7, 1994, by the owner or operator of a petroleum product storage system that is not an underground petroleum product storage tank system according to the eligibility requirements at the time that the awards were made except that the awards shall be subject to the deductible amounts under subd.
2. and the maximum amounts under subds.
3. and
4. The department shall issue an award under this subdivision for the difference between the award as recalculated under this subdivision and the award issued before July 29, 1995.
292.63(4)(dr)
(dr)
Deductible in certain cases. If a person is the owner or operator of an underground petroleum product storage tank system and a petroleum product storage system that is not an underground petroleum product storage tank system, both of which have discharged resulting in one occurrence, and if the person is eligible for an award under pars.
(d) and
(dm), the department shall calculate the award using the deductible determined under par.
(d) 2. if the predominant method of petroleum product storage at the site, measured in gallons, is underground petroleum product storage tank systems or using the deductible determined under par.
(dm) 2. if the predominant method of petroleum product storage at the site is not underground petroleum product storage tank systems.
292.63(4)(e)1.
1. The department shall issue an award under this paragraph for a claim for any of the following:
292.63(4)(e)1.b.
b. Eligible costs, under par.
(b), incurred on or after December 22, 2001, by the owner or operator of a petroleum product storage system that is not an underground petroleum product storage system if those costs are not reimbursable under par.
(dm) 1. 292.63(4)(e)1.c.
c. Eligible costs, under par.
(b), incurred on or after December 22, 2001, by the owner or operator of an underground petroleum product storage tank system if those costs are not reimbursable under par.
(d) 1. 292.63(4)(e)2.
2. The department shall issue the award under this paragraph without regard to fault in an amount equal to the amount of the eligible costs that exceeds a deductible amount of $10,000, except that the deductible amount for a petroleum product storage system that is owned by a school district or a technical college district and that is used for storing heating oil for consumptive use on the premises where stored is 25 percent of eligible costs and except that the deductible for a petroleum product storage system that is described in par.
(ei) is $2,500 plus 5 percent of the eligible costs, but not more than $7,500 per occurrence without regard to when the eligible costs are incurred.
292.63(4)(e)2m.
2m. An award issued under this paragraph may not exceed $190,000 for each occurrence, except that an award under this paragraph to the owner or operator of a petroleum product storage system described in par.
(ei) may not exceed $100,000 per occurrence.
292.63(4)(e)3.
3. The department may not issue awards under this paragraph to an owner or operator for eligible costs incurred in one program year that total more than $190,000.
292.63(4)(ee)
(ee)
Waiver of deductible. Notwithstanding par.
(d) 2.,
(dm) 2. or
(e) 2., the department may waive the requirement that an owner or operator pay the deductible amount if the department determines that the owner or operator is unable to pay. If the department waives the requirement that an owner or operator pay the deductible, the department shall record a statement of lien with the register of deeds of the county in which the petroleum product storage system is located. If the department records the statement of lien, the department has a lien on the property on which the petroleum product storage system is located in the amount of the deductible that was waived. The property remains subject to the lien until that amount is paid in full.
292.63(4)(ei)
(ei)
Awards for certain farm tanks. A farm tank of 1,100 gallons or less capacity storing petroleum products that are not for resale, together with any on-site integral piping or dispensing system, is a petroleum product storage system for the purposes of this section, if all of the following apply:
292.63(4)(ei)1m.a.
a. The owner or operator of the farm tank owns a parcel of 35 or more acres of contiguous land, on which the farm tank is located, which is devoted primarily to agricultural use, as defined in s.
91.01 (2), including land designated by the department as part of the ice age trail under s.
23.17, which during the year preceding submission of a first claim under sub.
(3) produced gross farm profits, as defined in s.
71.58 (4), of not less than $6,000 or which, during the 3 years preceding that submission produced gross farm profits, as defined in s.
71.58 (4), of not less than $18,000, or a parcel of 35 or more acres, on which the farm tank is located, of which at least 35 acres, during part or all of the year preceding that submission, were enrolled in the conservation reserve program under
16 USC 3831 to
3836.
292.63(4)(ei)1m.b.
b. The claim is submitted by a person who, at the time that the notification was made under sub.
(3) (a) 3., was the owner of the farm tank and owned a parcel of 35 or more acres of contiguous land, on which the farm tank is or was located, which was devoted primarily to agricultural use, as defined in s.
91.01 (2), including land designated by the department as part of the ice age trail under s.
23.17, which during the year preceding that notification produced gross farm profits, as defined in s.
71.58 (4), of not less than $6,000 or which, during the 3 years preceding that notification, produced gross farm profits, as defined in s.
71.58 (4), of not less than $18,000, or a parcel of 35 or more acres, on which the farm tank is located, of which at least 35 acres, during part or all of the year preceding that notification, were enrolled in the conservation reserve program under
16 USC 3831 to
3836.
292.63(4)(ei)2m.
2m. The owner or operator of the farm tank has received a letter or notice from the department indicating that the owner or operator must conduct a site investigation or remedial action because of a discharge from the farm tank or an order to conduct such an investigation or remedial action.
292.63(4)(em)
(em)
Awards for claims for home oil tank system discharges. 292.63(4)(em)1.1. The department shall issue an award for a claim filed after May 17, 1988, for eligible costs, under par.
(b), incurred on or after August 1, 1987, by a person who owns a home oil tank system.
292.63(4)(em)2.
2. The department shall issue the award under this paragraph without regard to fault for each home oil tank system in an amount equal to 75 percent of the amount of the eligible costs, except that, if the home oil tank system is owned by a nonprofit organization that provides housing assistance to families with incomes below 80 percent of the median family income, as determined annually by the U.S. department of housing and urban development for each county in the state, of the county in which the home oil tank system is located, then the award shall equal 100 percent of the amount of the eligible costs. The department shall recalculate any award made to such a nonprofit organization under this paragraph before May 7, 1994, based on 100 percent of eligible costs and shall issue an award for the difference between the award as recalculated and the award issued before May 7, 1994.
292.63(4)(em)3.
3. An award issued under this paragraph may not exceed $7,500.
292.63(4)(es)1.
1. The department shall issue an award for a claim filed after August 9, 1989, for eligible costs, under par.
(b), incurred on or after August 1, 1987, by an owner or operator or a person owning a home oil tank system in investigating the existence of a discharge or investigating the presence of petroleum products in soil or groundwater if the investigation is undertaken at the written direction of the department and no discharge or contamination is found.
292.63(4)(es)2.
2. The department shall issue the award under this paragraph without regard to fault for each petroleum product storage system or home oil tank system in an amount equal to the eligible costs incurred.
292.63(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.
292.63(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.
292.63(4)(g)
(g)
Denial of claims, limits on awards. The department shall deny a claim under par.
(a) if any of the following applies:
292.63(4)(g)3.
3. The claimant has been grossly negligent in the maintenance of the petroleum product storage system or home oil tank system.
292.63(4)(g)4.
4. The claimant intentionally damaged the petroleum product storage system or home oil tank system.
292.63(4)(g)6.
6. The claimant willfully failed to comply with laws or rules of this state concerning the storage of petroleum products.
292.63(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.
292.63(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 percent of the amount of the ineligible costs identified under subd.
2. that are included in the claim.
292.63(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 percent 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.
292.63(4)(h)2.
2. The department shall promulgate a rule identifying the ineligible costs to which subds.
1. and
1m. apply.
292.63(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:
292.63(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.
292.63(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).
292.63(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.
292.63(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.
292.63(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.
292.63(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.
292.63(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.
292.63(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.
292.63(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:
292.63(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).
292.63(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.
292.63(5)(c)
(c)
Disposition of funds. The net proceeds of a recovery under par.
(b) shall be paid into the petroleum inspection fund.
292.63(6)
(6) Requirement for proof of financial responsibility. 292.63(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.
292.63(6)(b)
(b) The department shall determine whether proof of financial responsibility submitted under par.
(a) satisfies par.
(a).
292.63(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).
292.63(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.
292.63(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.
292.63(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.
292.63(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.
292.63(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.
292.63(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.
292.63(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.
292.63(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.
292.63(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, and to make payments under an agreement or ancillary arrangement entered into under s.
18.55 (6) with respect to revenue obligations issued under this subsection.
292.63(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.
292.63(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.
292.63(9m)(g)2.
2. Revenue obligations issued under this subsection may not exceed $386,924,000 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, to pay accrued or capitalized interest, and to make payments under an agreement or ancillary arrangement entered into under s.
18.55 (6) with respect to revenue obligations issued under this subsection.
292.63(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.
292.63(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.
292.63(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 $5,000. Each day of continued violation constitutes a separate offense.
292.63(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.
292.63 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;
2005 a. 75;
2007 a. 20,
145;
2009 a. 28,
240;
2011 a. 32;
2013 a. 20 ss.
1634 to
1706; Stats. 2013 s. 292.63;
2013 a. 173 s.
33;
2015 a. 55.
292.63 Cross-reference
Cross-reference: See also ch.
NR 747, Wis. adm. code.
292.63 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.
292.63 Annotation
The proceeds of general obligation bonds may be used to fund awards under this section.
81 Atty. Gen. 114.
292.64
292.64
Removal of abandoned underground petroleum storage tanks. 292.64(1)(a)
(a) “Backfill" does not include landscaping or replacing sidewalk, asphalt, fence, or sod or other vegetation.
292.64(2)
(2) The department may contract with a person registered or certified under s.
168.23 to empty, clean, remove, and dispose of an underground petroleum product storage tank system; to assess the site on which the underground petroleum product storage tank system is located; and to backfill the excavation if all of the following apply:
