NR 169.19(4)(a)(a) An owner or operator shall submit applications for immediate and interim actions as specified in
s. NR 169.11.
NR 169.19(4)(b)
(b) An owner or operator may submit an application for reimbursement of site investigation costs when a complete
ch. NR 716 site investigation report is submitted to and approved by the department.
NR 169.19(4)(c)
(c) An owner or operator who incurs costs for a
ch. NR 716 site investigation may submit a request for reimbursement prior to completing the site investigation report. The minimum reimbursement request shall be $15,000 and only one reimbursement request may be submitted within any fiscal year. No more than 3 reimbursement requests, each accompanied by a summary of work completed through the date of the last invoice may be submitted prior to submittal of the site investigation report. A final reimbursement request may be submitted upon department approval of the site investigation report.
NR 169.19(4)(d)
(d) Not including the final application submitted after closure has been granted, an owner or operator may not submit more than 2 applications for remedial action reimbursement for each facility in a fiscal year.
NR 169.19 Note
Note: An owner or operator may submit applications for immediate actions, interim actions or site investigation reimbursement all within the same fiscal year. The number of applications submitted for remedial actions each year is limited to prevent too frequent submittals of costs such as operation and maintenance.
NR 169.19(5)(a)(a) No person may make, or conspire with another person to make, any false, deceptive or misleading representation in connection with any reimbursement application under this chapter.
NR 169.19(5)(b)
(b) Any person who makes or conspires with another person to make any false, deceptive or misleading representation in connection with a reimbursement application under this chapter is ineligible for any reimbursement for that response action or any other response action taken or ordered at any dry cleaning facility within 5 years after the date of that application.
NR 169.19 Note
Note: Persons filing fraudulent claims may also be subject to criminal prosecution.
NR 169.19(5)(c)
(c) Any person who has reason to believe that that person has received any reimbursement for which that person is ineligible under this section shall immediately notify the department and shall refund with the notification the full amount of any reimbursement for which that person is ineligible.
NR 169.19 Note
Note: Section
292.65 (9) (b), Stats., provides that the department shall ask the attorney general to take action to recover awards which were issued for applications which were fraudulent or to owners or operators who received awards but did not meet the requirements of s.
292.65, Stats.
NR 169.19 History
History: CR 04-128: cr.
Register July 2005 No. 595, eff. 8-1-05;
CR 12-023: am. (4) (c)
Register October 2013 No. 694, eff. 11-1-13;
reprinted to restore omitted copy in (4) (c), Register November 2013 No. 695. NR 169.21(1)(a)(a)
Preliminary opinion. The department may issue a preliminary opinion which is not binding on the department on whether an applicant is eligible for reimbursement of response action costs.
NR 169.21(1)(b)
(b)
Notice acknowledging application. Within 30 days after the department receives an application under
s. NR 169.19, the department shall issue a written notice to the applicant acknowledging receipt of the application.
NR 169.21(1)(c)
(c)
Request for additional information. Following receipt of an application under
s. NR 169.19, the department may require an applicant to submit any additional information that may be relevant to the department's review of the application.
NR 169.21(1)(d)
(d)
Decision. Within 90 days after the department receives a complete application under
s. NR 169.19, including any additional information required by the department under
par. (c), the department shall issue a written decision approving or disapproving the application. The department may approve part of an application, or approve an application subject to conditions specified by the department. In its decision the department shall specify all the following:
NR 169.21(1)(d)1.
1. The amount of eligible costs, if any, for which reimbursement may be paid.
NR 169.21(1)(d)2.
2. The total amount, if any, approved for payment under
s. NR 169.13. The decision shall specify that payment is subject to the terms and conditions specified in this chapter.
NR 169.21(1)(d)3.
3. Any amounts and items not approved and the reasons for that disapproval. The department shall also explain any amounts deducted from the reimbursement application under
sub. (3).
NR 169.21 Note
Note: Section
292.65 (8) (d), Stats., provides that the department shall deny an application if any of the following applies:
NR 169.21 Note
1. The application is not within the scope of the statute.
NR 169.21 Note
2. The applicant submits a fraudulent application.
NR 169.21 Note
3. The applicant has been grossly negligent in the maintenance of the dry cleaning facility.
NR 169.21 Note
4. The applicant intentionally damaged the dry cleaning equipment.
NR 169.21 Note
5. The applicant falsified records.
NR 169.21 Note
6. The applicant willfully failed to comply with laws or rules of this state concerning the use or disposal of dry cleaning solvents.
NR 169.21 Note7. All of the fees, interest and penalties due under ss.
77.9961,
77.9962 and
77.9964, Stats., have not been paid unless an agreement has been entered into with the department of revenue establishing a payment schedule for all of the fees, interest and penalties due.
NR 169.21 Note
8. The dry cleaning product discharge was caused on or after October 14, 1997, by a person who provided services or products to the owner or operator or to a prior owner or operator of the dry cleaning facility, including a person who provided perchloroethylene to the owner or operator or prior owner or operator of a dry cleaning facility using a system other than a closed, direct–coupled delivery system.
NR 169.21 Note
Note: Section
292.65 (8) (j), Stats., and s.
NR 169.25 (3) establish award reductions if ineligible costs are included in the application prepared either by the owner, operator or consultant.
NR 169.21(3)(a)(a) The department may only make an award for eligible costs incurred at each dry cleaning facility that exceed the deductibles or other costs as specified in s.
292.65 (8) (e), Stats.
NR 169.21 Note
Note: Section
292.65 (8) (e), Stats., provides that eligible costs incurred at each dry cleaning facility may be paid if they exceed the following:
NR 169.21 Note
a. If eligible costs are $200,000 or less, $10,000.
NR 169.21 Note
b. If eligible costs exceed $200,000 but do not exceed $400,000, $10,000 plus 8% of the amount by which eligible costs exceed $200,000.
NR 169.21 Note
c. If eligible costs exceed $400,000, $26,000 plus 10% of the amount by which eligible costs exceed $400,000.
NR 169.21 Note
Note: Costs and deductibles are calculated on a cumulative per site basis.
NR 169.21 Note
Note: Section
292.65 (8) (g), Stats., provides that 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 deductible requirement, the department shall record a statement of lien with the register of deeds of the county in which the dry cleaning facility is located. If the department records the statement of lien, the department has a lien on the property on which the dry cleaning facility 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 at which point the department will record a satisfaction of lien.
NR 169.21(4)
(4) Maximum awards. Pursuant to s.
292.65 (8) (f), Stats., $500,000 is the maximum amount that may be paid for costs at a single dry cleaning facility for immediate actions, both emergency and non–emergency, and site investigations and remedial actions.
NR 169.21 Note
Note: The maximum award amount applies to each facility rather than to each owner or operator. Costs and deductible maximums also apply per facility. If a facility is sold and the new owner or operator spends money to continue cleanup from an older release or to cleanup from a new release, the owner or operator may be eligible for reimbursement under this chapter to the extent that the maximum award amount payable under sub. (4) has not been exceeded. Awards to a subsequent owner or operator will be reduced by the amount of the deductibles under sub. (3) that have not been exceeded.
NR 169.21(5)
(5) Multiple claimants. If more than one owner or operator is eligible for reimbursement under this chapter for response action taken for one or more discharges at the facility, the combined amount paid to those owners or operators may not exceed the maximum amount specified for a facility under
sub. (4).
NR 169.21 History
History: CR 04-128: cr.
Register July 2005 No. 595, eff. 8-1-05.
NR 169.23
NR 169.23 Consulting and contract services. NR 169.23(1)(1)
Applicability. This section does not apply to hiring a consultant or contractor to design or implement immediate action activities or to conduct site investigation scoping activities. This section does not apply to interim actions unless the department requires bidding for an interim action based on the scope of the action or costs projected by the consultant proposing to conduct the interim action activity.
NR 169.23(2)(a)(a)
Interim actions. If required by the department, an owner or operator shall solicit a minimum of 3 and a maximum of 6 bid proposals from at least 3 consultants based on information contained in or equivalent to a site investigation scoping report or the initial phases of the site investigation.
NR 169.23 Note
Note: This requirement does not imply that all sites will need to implement interim action activities. This provision is only for those sites where interim actions, as defined in ch.
NR 708, are appropriate.
NR 169.23(2)(b)
(b)
Site investigations. An owner or operator shall solicit and obtain a minimum of 3 and a maximum of 6 workplans from at least 3 consultants based on information contained in or equivalent to a site investigation scoping report. Site investigation workplans shall be consistent with
s. NR 716.09 and include all activities required in
ch. NR 716.
NR 169.23(2)(c)
(c)
Remedial actions. An owner or operator shall solicit and obtain a minimum of 3 and a maximum of 6 bid proposals for the implementation of a remedy based on the findings of the
ch. NR 716 site investigation and in compliance with
chs. NR 722 and
724.
NR 169.23(2)(d)
(d)
Submittal of workplan and remedial action bids. Each consultant shall submit a sealed bid to the owner or operator by the date specified by the owner or operator. The consultant shall also submit at the same time a copy of the sealed bid to the department project manager.
NR 169.23(3)(a)(a) Each site investigation workplan or interim or remedial action proposal shall include a cost estimate for each service provided by the consultant or contractor and shall be submitted with a completed form as provided by the department. The department may require an owner or operator to obtain additional workplans or proposals if the department finds that existing workplans or proposals are unreasonable or inadequate.
NR 169.23 Note
Note: Forms are available at no charge from the remediation and redevelopment program in any department regional or central office or by contacting the department at (608) 266-2111.
NR 169.23(3)(b)
(b) The site investigation workplan or remedial action proposal shall include statements regarding the consultant's ability to do all the following:
NR 169.23(3)(b)1.
1. Be fully informed about the project's scope and required services, and have the experience and ability to analyze alternatives and design the most suitable response action consistent with technical and economic feasibility, environmental statutes and rules, restoration timeframes and the latest technical advances.
NR 169.23(3)(b)2.
2. Provide necessary staff and facilities for all phases of planning, investigation, design, construction and operation.
NR 169.23(3)(b)3.
3. Retain and confer with specialists on unusual matters and provide qualified technical reviewers to advise the owner on technical and regulatory matters and work toward planned remediation goals.
NR 169.23(3)(b)4.
4. Perform all services in an ethical, professional and timely manner.
NR 169.23(3)(c)
(c) Except as provided in
par. (d), the department may not reimburse an eligible applicant for consulting service costs by the consultant selected to perform the service that exceed that consultant's proposal for those services under
par. (a) or
(b).
NR 169.23(3)(d)
(d) The department may reimburse an eligible applicant for consulting or contract services not included in the consultant's workplan or proposal under
par. (a) or
(b), or for additional hours or units of service beyond those included in the consultant workplan or proposal under
par. (a) or
(b), if all of the following apply:
NR 169.23(3)(d)1.
1. The consultant providing the additional services was selected by the qualification based selection process required under
sub. (8) after evaluating the information required under
pars. (a) and
(b).
NR 169.23(3)(d)2.
2. The consultant bills for the additional services at the same or lower per–unit price at which the consultant agreed to provide equivalent services, if any, in the consultant's initial proposal under
par. (a) or
(b).
NR 169.23(3)(d)3.
3. The consultant provides the eligible applicant with a cost estimate for the additional services before performing those services. The department may require the owner or operator to obtain competitive proposals for the additional services if the department finds that the cost estimate is unreasonable.
NR 169.23(3)(d)4.
4. The additional services do not involve the selection, design or installation of groundwater remediation.
NR 169.23(3)(d)5.
5. If the total cost of additional services exceeds the greater of $3,000 or 5% of the workplan or proposal cost, and before the additional work is performed, the owner or operator provides a change order and the cost estimate under
subd. 3. to the department, and after obtaining department approval provides the consultant with written authorization to proceed with the additional services.
NR 169.23(3)(e)
(e) An owner or operator requesting reimbursement from the department shall keep copies of all workplans and proposals required under this subsection, and shall make those copies available to the department for inspection and copying upon request. The owner or operator shall keep copies of the bids and cost estimates for at least 3 years beyond the completion of the project.
NR 169.23(4)
(4) Interim action proposal estimate contents. Interim action activities included in the proposals shall include the need for and scope of the interim action, the implementation of the interim action, the design and documentation report at the conclusion of the action. Interim action proposals shall be consistent with
s. NR 708.11.
NR 169.23(5)
(5) Site investigation workplan estimate contents. Every site investigation workplan under
sub. (2) (b) shall include all the following:
NR 169.23(5)(a)
(a) A clear description and itemization of the consultant and contract services included in the workplan based on the site investigation scoping report or, if there is no scoping report, on a good faith estimate of the scope of the project.
NR 169.23(5)(b)
(b) A form provided by the department containing a description of the overall strategy for assessing the impacts from the site; a monitoring strategy to include parameters necessary to evaluate enhanced natural attenuation or monitored natural attenuation as a remedy, including a minimum of 4 rounds of groundwater sampling; and a discussion of the management of investigative derived waste.
NR 169.23 Note
Note: Forms are available at no charge from the remediation and redevelopment program in any department regional or central office or by contacting the department at (608) 266-2111.
NR 169.23(5)(c)
(c) A total cost estimate for all the consultant and contract services included in the workplan and a subtotal price for each of the component services itemized in the workplan.
NR 169.23(5)(d)
(d) All the following information related to every service priced on an hourly or per unit basis:
NR 169.23(5)(d)2.
2. A reasonable, good faith estimate of the number of hours or units of service to be provided.
NR 169.23(5)(d)3.
3. The total estimated price for the service, based on the estimate under
subd. 2.
NR 169.23(5)(d)4.
4. The estimated date by which the consultant and contractor will perform their services.
NR 169.23(6)
(6) Remedial action proposal estimate content. Every remedial action proposal submitted under
sub. (2) (c), and every cost estimate under
sub. (3) (a) shall include all of the following information on a form provided by the department:
NR 169.23(6)(a)
(a) A
ch. NR 722 evaluation of technical and economic feasibility for appropriate alternatives at a site, including an evaluation of natural attenuation and enhanced natural attenuation.
NR 169.23(6)(b)
(b) A description of the remedy proposed for the site. The description shall include an explanation of how that remedy will result in compliance with
ch. NR 726 pertaining to case closure.
NR 169.23(6)(c)
(c) A clear description and itemization of the consultant and contract services included in the proposal. The description and itemization shall be based on the proposed remedy selected for the site.
NR 169.23(6)(d)
(d) A description and cost estimate for the implementation, analysis and interpretation of a pilot test for all active remediation systems, unless the consultant can justify to the department's satisfaction that a pilot test is not necessary.
NR 169.23(6)(e)
(e) A total cost estimate for all the consultant and contract services included in the proposal and a subtotal price for each component service itemized in the proposal.
NR 169.23(6)(f)
(f) All the following information related to every service priced on an hourly or per unit basis:
