Chapter 292

292.57 History History: 1999 a. 9; 2005 a. 25, 418; 2017 a. 59.

292.63 292.63 Petroleum storage remedial action; financial assistance.

292.63(1) (1) Definitions. In this section:

292.63(1)(ad) (ad) “Bodily injury” does not include those liabilities which are excluded from coverage in liability insurance policies for bodily injury other than liabilities excluded because they are caused by a petroleum product discharge from a petroleum product storage system.

292.63(1)(bm) (bm) “Enforcement standard” has the meaning given in s. 160.01 (2).

292.63(1)(c) (c) “Groundwater” has the meaning designated under s. 281.75 (1) (c).

292.63(1)(cm) (cm) “Home oil tank system” means an underground home heating oil tank used for consumptive use on the premises together with any on-site integral piping or dispensing system.

292.63(1)(cq) (cq) “Natural attenuation” means the reduction in the concentration and mass of a substance, and the products into which the substance breaks down, due to naturally occurring physical, chemical and biological processes.

292.63(1)(cs) (cs) “Occurrence” means a contiguous contaminated area resulting from one or more petroleum products discharges.

292.63(1)(d) (d) “Operator” means any of the following:

292.63(1)(d)1. 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 environmental pollution occurs.

292.63(1)(d)2. 2. A subsidiary or parent corporation of the person specified under subd. 1.

292.63(1)(e) (e) “Owner” means any of the following:

292.63(1)(e)1. 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 environmental pollution occurs.

292.63(1)(e)2. 2. A subsidiary or parent corporation of the person specified under subd. 1.

292.63(1)(e)3. 3. A person who formerly owned a farm tank and who satisfies the criteria in sub. (4) (ei) 1m. b.

292.63(1)(f) (f) “Petroleum product” means gasoline, gasoline-alcohol fuel blends, kerosene, fuel oil, burner oil, diesel fuel oil or used motor oil.

292.63(1)(fg) (fg) “Petroleum product storage system” means a storage tank that is located in this state 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 this state or the federal government.

292.63(1)(g) (g) “Program year” means the period beginning on August 1, and ending on the following July 31.

292.63(1)(gm) (gm) “Property damage” does not include those liabilities that are excluded from coverage in liability insurance policies for property damage, other than liability for remedial action associated with petroleum product discharges from petroleum product storage systems. “Property damage” does not include the loss of fair market value resulting from contamination.

292.63(1)(gs) (gs) “Service provider” means 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, or a subcontractor of such a person.

292.63(1)(h) (h) “Subsidiary or parent corporation” means a business entity, including a subsidiary, parent corporation or other business arrangement, that has elements of common ownership or control or that uses a long-term contractual arrangement with a person to avoid direct responsibility for conditions at a petroleum product storage system site.

292.63(1)(hm) (hm) “Terminal” means a petroleum product storage system that is itself connected to a pipeline facility, as defined in 49 USC 60101 (18) or is one of a number of connected petroleum product storage systems at least one of which is connected to a pipeline facility, as defined in 49 USC 60101 (18).

292.63(1)(i) (i) “Underground petroleum product storage tank system” means an underground storage tank used for storing petroleum products together with any on-site integral piping or dispensing system with at least 10 percent of its total volume below the surface of the ground.

292.63(1m) (1m) Rules concerning 3rd-party compensation. The commissioner of insurance shall promulgate rules defining “liabilities which are excluded from coverage in liability insurance policies for bodily injury” and “liabilities which are excluded from coverage in liability insurance policies for property damage” for the purposes of sub. (1) (ad) and (gm). The definitions shall be consistent with standard insurance industry practices.

292.63(2) (2) Powers and duties of the department.

292.63(2)(b) (b) The department shall promote the program under this section to persons who may be eligible for awards under this section.

292.63(2)(c) (c) The department shall keep records and statistics on the program under this section and shall periodically evaluate the effectiveness of the program.

292.63(2)(d) (d) The department shall reserve a portion, not to exceed 20 percent, of the amount annually appropriated under s. 20.370 (6) (fr) for awards under this section to be used to fund emergency remedial action and claims that exceed the amount initially anticipated.

292.63(2)(e) (e) The department shall promulgate rules, with an effective date of no later than January 1, 1996, specifying the methods the department will use under sub. (3) (ae), (ah), (am) and (ap) to identify the petroleum product storage system or home oil tank system which discharged the petroleum product that caused an area of contamination and to determine when a petroleum product discharge that caused an area of contamination occurred. The department shall write the rule in a way that permits a clear determination of what petroleum product contamination is eligible for an award under sub. (4) after December 31, 1995.

292.63(2)(em) (em)

292.63(2)(em)1. 1. The department may promulgate rules that specify a fee that must be paid by a service provider as a condition of submitting a bid to conduct an activity under sub. (3) (c) for which a claim for reimbursement under this section will be submitted. Any fees collected under the rules shall be deposited into the petroleum inspection fund.

292.63(2)(em)2. 2. If the department promulgates rules under subd. 1., the department may purchase, or provide funding for the purchase of, insurance to cover the amount by which the costs of conducting activities under sub. (3) (c) exceed the amount bid to conduct those activities.

292.63(2)(f) (f) The department shall promulgate a rule establishing a priority system for paying awards under sub. (4) 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(2)(g) (g) The department may promulgate, by rule, requirements for the certification or registration of persons who provide consulting services to owners and operators who file claims under this section. Any rule requiring certification or registration shall also authorize the revocation or suspension of the certification or registration.

292.63(2)(h) (h) The department shall promulgate rules designed to facilitate effective and cost-efficient administration of the program under this section that specify all of the following:

292.63(2)(h)1. 1. Information that must be submitted under this section, including quarterly summaries of costs incurred with respect to a discharge for which a claim is intended to be submitted under sub. (3) but for which a final claim has not been submitted.

292.63(2)(h)2. 2. Formats for submitting the information under subd. 1.

292.63(2)(h)3. 3. Review procedures that must be followed by employees of the department in reviewing the information submitted under subd. 1.

292.63(2)(i) (i) The department shall promulgate rules specifying procedures for evaluating remedial action plans and procedures to be used by employees of the department while remedial actions are being conducted. The department shall specify procedures that include all of the following:

292.63(2)(i)1. 1. Annual reviews that include application of the method in the rules promulgated under sub. (2e) (a) to determine the risk posed by discharges that are the subject of the remedial actions.

292.63(2)(i)2. 2. Annual reports by consultants estimating the additional costs that must be incurred to comply with sub. (3) (c) 3. and with enforcement standards.

292.63(2)(i)3. 3. A definition of “reasonable time” for the purpose of determining whether natural attenuation may be used to achieve enforcement standards.

292.63(2)(i)4. 4. Procedures to be used to measure concentrations of contaminants.

292.63(2)(j) (j) The department shall promulgate rules specifying all of the following:

292.63(2)(j)1. 1. The conditions under which employees of the department must issue approvals under sub. (3) (c) 4.

292.63(2)(j)2. 2. Training and management procedures to ensure that employees comply with the requirements under subd. 1.

292.63(2e) (2e) Risk-based analysis.

292.63(2e)(a) (a) The department shall promulgate rules that specify a method, which shall include individualized consideration of the routes for migration of petroleum product contamination at each site, for determining the risk to public health, safety and welfare and to the environment posed by discharges for which the department receives notification under sub. (3) (a) 3.

292.63(2e)(c) (c) The department shall apply the method in the rules promulgated under par. (a) to determine the risk posed by a discharge for which the department receives notification under sub. (3) (a) 3.

292.63(3) (3) Claims for petroleum product investigation, remedial action planning and remedial action activities.

292.63(3)(a) (a) Who may submit a claim. Subject to pars. (ac), (ae), (ah), (am) and (ap), an owner or operator or a person owning a home oil tank system may submit a claim to the department for an award under sub. (4) to reimburse the owner or operator or the person for the eligible costs under sub. (4) (b) that the owner or operator or the person incurs because of a petroleum products discharge from a petroleum product storage system or home oil tank system if all of the following apply:

292.63(3)(a)1. 1. The owner or operator or the person is able to document that the source of a discharge is from a petroleum product storage system or home oil tank system.

292.63(3)(a)3. 3. The owner or operator or the person notifies the department, before conducting a site investigation or remedial action activity, of the discharge and the potential for submitting a claim under this section, except as provided under par. (g).

292.63(3)(a)4. 4. The owner or operator registers the petroleum product storage system or the home oil tank system is registered with the department of agriculture, trade and consumer protection under s. 168.23.

292.63(3)(a)5. 5. The owner or operator or the person reports the discharge in a timely manner to the division of emergency management in the department of military affairs or to the department, according to the requirements under s. 292.11.

292.63(3)(a)6. 6. The owner or operator or the person investigates the extent of environmental damage caused by the petroleum product storage system or home oil tank system.

292.63(3)(a)7. 7. The owner or operator or the person recovers any recoverable petroleum products from the petroleum products storage system or home oil tank system.

292.63(3)(a)8. 8. The owner or operator or the person disposes of any residual solid or hazardous waste in a manner consistent with local, state and federal laws, rules and regulations.

292.63(3)(a)9. 9. The owner or operator or the person follows standards for groundwater restoration in the groundwater standards in the rules promulgated by the department under ss. 160.07 and 160.09 and restores the environment, to the extent practicable, according to those standards at the site of the discharge from a petroleum product storage system or home oil tank system.

292.63(3)(ac) (ac) Claim deadline; sunset.

292.63(3)(ac)1. 1. An owner or operator or person owning a home oil tank system is not eligible for an award under this section for costs for which the owner or operator or person does not submit a claim within 180 days after incurring the costs, or by February 1, 2016, whichever is later.

292.63(3)(ac)2. 2. An owner or operator or 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 if the owner or operator or person does not provide notification under par. (a) 3. concerning the discharge before July 20.

292.63(3)(ac)3. 3. An owner or operator or person owning a home oil tank system is not eligible for an award under this section if the owner or operator or person does not submit a claim for the costs before July 1, 2020.

292.63(3)(ae) (ae) New systems. 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 that meets the performance standards in 40 CFR 280.20 or in rules of the department of agriculture, trade and consumer protection relating to underground petroleum product storage tank systems installed after December 22, 1988, if the discharge is confirmed after December 31, 1995.

292.63(3)(ah) (ah) New 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 and that meets the performance standards in rules of the department of agriculture, trade and consumer protection relating to petroleum product storage systems that are not underground petroleum product storage tank systems and that are installed after April 30, 1991, if the discharge is confirmed after December 22, 2001.

292.63(3)(am) (am) Upgraded underground systems.

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) (cp) Bidding process.

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.