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) (cw) Annual reviews.
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)2. 2. A remedial action plan.
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)5. 5. The written approval of the department under par. (c) 4.
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)(a) Awards.
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:
292.63(4)(a)2.a. 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 percent 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 percent 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)4. 4. Preparation of remedial action plans.
292.63(4)(b)5. 5. Removal of contaminated soils.
292.63(4)(b)6. 6. Soil treatment and disposal.
292.63(4)(b)7. 7. Environmental monitoring.
292.63(4)(b)8. 8. Laboratory services.
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)11. 11. Restoration of environmental quality.
292.63(4)(b)12. 12. Contractor costs for remedial action activities.
292.63(4)(b)13. 13. Inspection and supervision.
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)1. 1. Costs incurred before August 1, 1987.
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)6. 6. Costs for remedial action activities funded under 42 USC 6991, unless the owner or operator or the person repays the funds provided under 42 USC 6991.
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 percent 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 percent.
292.63(4)(c)9. 9. Loan origination fees incurred by an applicant that exceed 2 percent of the principal amount of the loan.
292.63(4)(c)10. 10. Fees charged under s. 292.55 (2).
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) (cc) Ineligibility for interest reimbursement.
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. 2. Subdivision 1. does not apply to any of the following:
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.
292.63(4)(ce) (ce) Eligible cost; service providers. The department may promulgate rules under which the department selects service providers to provide investigation or remedial action services in specified areas. The rules may provide that the costs of a service for which the department has selected a service provider in an area are not eligible costs under par. (b), or that eligible costs are limited to the amount that the selected service provider would have charged, if an owner or operator of a petroleum product storage system located in that area, or a person owning a home oil tank system located in that area, uses a service provider other than the service provider selected by the department to perform the services. If the department selects service providers under this paragraph, it shall regularly update the list of service providers that it selects.
292.63(4)(cm) (cm) Usual and customary costs. The department shall establish a schedule of usual and customary costs for items under par. (b) that are commonly associated with claims under this section. The department shall use that schedule to determine the amount of eligible costs for an occurrence for which a competitive bidding process is not used, except in circumstances under which higher costs must be incurred to comply with sub. (3) (c) 3. and with enforcement standards. For an occurrence for which a competitive bidding process is used, the department may not use the schedule. In the schedule, the department shall specify the maximum number of reimbursable hours for particular tasks and the maximum reimbursable hourly rates for those tasks. The department shall use methods of data collection and analysis that enable the schedule to be revised to reflect changes in actual costs.
292.63(4)(d) (d) Awards for claims; underground systems.
292.63(4)(d)1. 1. The department shall issue an award under this paragraph for a claim filed after July 31, 1987, for eligible costs, under par. (b), incurred on or after August 1, 1987, and before December 22, 2001, by the owner or operator of an underground petroleum product storage tank system and for 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 the petroleum product discharge on which the claim is based is confirmed and activities under sub. (3) (c) or (g) are begun before December 22, 2001.
292.63(4)(d)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 the deductible amount under par. (dg). An award issued under this paragraph may not exceed the following for each occurrence:
292.63(4)(d)2.a. a. For an owner or operator of an underground petroleum product storage tank system that is located at a facility at which petroleum is stored for resale or an owner or operator of an underground petroleum product storage tank system that handles an annual average of more than 10,000 gallons of petroleum per month, $1,000,000.
292.63(4)(d)2.b. b. For an owner or operator other than an owner or operator under subd. 2. a., c. or d., $500,000.
292.63(4)(d)2.c. c. For an owner or operator of a petroleum product storage system described in par. (ei), $100,000.
292.63(4)(d)2.d. d. For a school district or a technical college district with respect to a discharge from a petroleum product storage system that is used for storing heating oil for consumptive use on the premises where stored, $190,000.
292.63(4)(d)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 the following:
292.63(4)(d)3.a. a. For an owner or operator of 100 or fewer underground petroleum product storage tank systems, $1,000,000.
292.63(4)(d)3.b. b. For an owner or operator of more than 100 underground petroleum product storage tank systems, $2,000,000.
292.63(4)(d)4. 4. The department shall recalculate all awards issued under this paragraph, or under s. 101.143 (4) (e), 1987 stats., before May 3, 1990, according to all of the requirements of those provisions at the time that the award was made, except that the award shall be based on 100 percent of the eligible costs and except that the award shall be subject to the maximum amounts under subds. 2. and 3. 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 May 3, 1990.
292.63(4)(dg) (dg) Deductible; underground systems. The amount of the deductible for an award under par. (d) is as follows for each occurrence:
292.63(4)(dg)2. 2. For a school district or a technical college district with respect to a discharge from an underground petroleum product storage tank system that is used for storing heating oil for consumptive use on the premises, 25 percent of eligible costs.
292.63(4)(dg)4. 4. For an owner or operator other than an owner or operator described in subd. 2., $2,500, plus 5 percent of eligible costs.
292.63(4)(di) (di) Rules concerning deductible for underground systems. The department may promulgate rules describing a class of owners and operators of underground petroleum product storage tank systems otherwise subject to par. (dg) for whom the deductible is based on financial hardship.
292.63(4)(dm) (dm) Awards for aboveground systems for a specified period.
292.63(4)(dm)1.1. The department shall issue an award under this paragraph for a claim for eligible costs, under par. (b), incurred on or after August 1, 1987, and before December 22, 2001, by the owner or operator of a petroleum product storage system that is not an underground petroleum product storage tank system and for 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 tank system if the petroleum product discharge on which the claim is based is confirmed and activities under sub. (3) (c) or (g) are begun before December 22, 2001.
292.63(4)(dm)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 the following deductible:
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2017-18 Wisconsin Statutes updated through 2019 Wis. Act 50 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on December 6, 2019. Published and certified under s. 35.18. Changes effective after December 6, 2019, are designated by NOTES. (Published 12-6-19)