Chapter NR 747

NR 747.12(2) (2) Incomplete claims.

NR 747.12(2)(a) (a) Incomplete claims, lack of verification of payment of costs, lack of signatures, and other factors may delay processing of claims or change the schedule of the review.

NR 747.12(2)(b) (b) Claims received by the department which contain unpaid invoices shall, at the department’s discretion, be assigned a review date no earlier than the date proof of payment was provided to the department.

NR 747.12(2)(c) (c) PECFA claims for awards may not be processed without proper and complete documentation including, but not limited to, Underground Petroleum Product Tank Inventory forms (ERS-7437), Aboveground Petroleum Product Tank Inventory forms (ERS-8731), Remedial Action Fund Application form (ERS-8067), department letter indicating compliance with remedial action plan submittal requirements (investigation claim), report providing information detailed in s. NR 716.15 (investigation claim), evidence of the source of the petroleum product discharge and the degree and extent of the soil or water contamination resulting from the discharge, proof of payment of costs incurred in remediation, approval of closed remedial action, responsible party’s social security number or federal tax identification number, and other forms available from the department necessary for claim processing.

NR 747.12 Note Note: The department forms required in this chapter are available from the Wisconsin DNR, Bureau for Remediation & Redevelopment, P.O. Box 7921, Madison WI 53707-7921 or at http://dnr.wi.gov/topic/brownfields/pecfa.html.

NR 747.12(3) (3) Request for additional information.

NR 747.12(3)(a) (a) Once the department has begun the review of a claim, the department may request that additional information be submitted 15 business days from the date of the request. Otherwise, the claim may be deemed incomplete and progress payments may be denied. These claims, when complete, may be rescheduled for review after more recently received complete claims.

NR 747.12(3)(b) (b) The department may request additional information from owners, operators or persons owning home oil tank systems, agents, consultants, contractors or subcontractors as necessary.

NR 747.12(3)(c) (c) Failure to respond to a request, within the 15 business day response period for additional information, may result in a delay in payment, disallowance of interest costs accrued, action against a consultant, or scheduling a meeting with the responsible party and the department or other individuals.

NR 747.12(3)(c)1. 1. The department may disallow interest costs accrued during the period when no response has been received, by issuing a letter stating the intent, on a specified date, to disallow payments on interest costs accrued during this period as specified in par. (c).

NR 747.12(3)(c)2. 2. Appeal of disallowed interest costs, shall be conducted as specified in s. NR 747.53.

NR 747.12(4) (4) Costs incurred in remediation. Only eligible costs, as specified in s. NR 747.30, that have been paid, shall be submitted for an award.

NR 747.12 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; r. and recr. (1), am. (2) (c), Register, December, 1998, No. 516, eff. 1-1-99; CR 04-058: am. (1) (intro.), (2) (c) and (4), cr. (1) (j), Register February 2006 No. 602, eff. 5-1-06; correction in (1) (c), (j), (3) (c) 2., (4) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; corrections in (1) (c), (3) (c) 2., (4) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 747.13 NR 747.13 Exclusive remedy and liability. The PECFA fund awards for remediation activities and is not intended to result in owners or operators or persons owning home oil tank systems making any profit or receiving duplicate payment in a remediation. As specified in s. 292.63 (7) (am), Stats., an award made under this chapter is the exclusive method of recovery for costs reimbursed under the fund.

NR 747.13 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 747.14 NR 747.14 Right to recover actions. The department reserves the right to take action against an owner, operator or person owning a home oil tank system, or their agents or designees to recover any award or portion of an award resulting from a fraudulent claim.

NR 747.14(1) (1) Right of action. A right of action under this section shall accrue to the state against an owner, operator or other person if the owner, operator or other person submits a fraudulent claim or does not meet the requirements under this chapter or if an award is issued under this section to the owner, operator or other person for ineligible costs under this section.

NR 747.14(2) (2) Action to recover awards. The department shall request the attorney general to take action as is appropriate to recover awards to which the state is entitled or when the department discovers a fraudulent claim after an award is issued.

NR 747.14 Note Note: Section 292.63 (5) (c), Stats., states that recovered funds shall be credited to the petroleum environmental cleanup fund.

NR 747.14 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94.

NR 747.15 NR 747.15 Assignment of awards. By written notification to the department, a claimant may make an assignment of an award to an institution which lends money to the claimant for the purpose of conducting remediation activities reimbursed under this chapter, as specified in s. 292.63 (4m), Stats. This assignment of an award creates and perfects a lien in favor of the assignee in the proceeds of the award.

NR 747.15 Note Note: Section 292.63 (4m), Stats., states 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.

NR 747.15 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; correction made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

subch. III of ch. NR 747 Subchapter III — Reimbursement Procedures

NR 747.30 NR 747.30 Eligible cost items for remediation.

NR 747.30(1) (1) Eligible costs.

NR 747.30(1)(a) (a) Costs related to the categories in pars. (b) to (g) may be reimbursed under the scope of this chapter.

NR 747.30(1)(b) (b) Costs associated with emergency action, site investigation and remedial plan development, remediation, long-term monitoring or operation and maintenance:

NR 747.30(1)(b)1. 1. Investigation of potential sources of contamination by precision testing to determine tightness of tanks and lines if the method used is approved by the department and the tester is certified by the department of agriculture, trade and consumer protection as specified in ch. ATCP 93 and the testing is not designed to meet the regular leak detection responsibilities of the owner or operator;

NR 747.30(1)(b)2. 2. Costs of eligible work performed after confirmation of a petroleum product discharge;

NR 747.30(1)(b)3. 3. Preparation of remedial action alternatives and plans;

NR 747.30(1)(b)4. 4. Laboratory services for testing specific to this chapter, including full VOC testing; and

NR 747.30(1)(b)5. 5. Investigation and assessment of the degree and extent of contamination caused by a petroleum product discharge from a petroleum product storage tank system or home oil tank system.

NR 747.30(1)(c) (c) Costs associated with excavation and disposal of contaminated soils:

NR 747.30(1)(c)1. 1. Removal of contaminated soils;

NR 747.30(1)(c)2. 2. Actual costs incurred which are associated with equipment mobilization;

NR 747.30(1)(c)3. 3. Removal of petroleum products from surface waters, groundwater or soil; and

NR 747.30(1)(c)4. 4. Treatment and disposal of contaminated soils including department approved procedures for bio-remediation.

NR 747.30 Note Note: All soils shall be reported in tons when included in a claim.

NR 747.30(1)(d) (d) Costs associated with monitoring and other remedial action activities:

NR 747.30(1)(d)1. 1. Monitoring of natural bio-remediation progress;

NR 747.30(1)(d)2. 2. Actual charges for maintenance of equipment used for petroleum product recovery or remedial action activities;

NR 747.30(1)(d)3. 3. Other costs identified by the department as necessary for proper investigation, remedial action planning and remedial action activities to meet the requirements of ch. 292, Stats.;

NR 747.30(1)(d)4. 4. State or municipal permits for installation of remedial equipment;

NR 747.30(1)(d)5. 5. Actual costs for the purchase or rental of temporary building structures of a size adequate to house remedial equipment; and

NR 747.30(1)(d)6. 6. Restoration or replacement of a private or public potable water supply.

NR 747.30(1)(e) (e) Costs associated with personnel, travel and related expenses:

NR 747.30(1)(e)1. 1. Contractor or subcontractor costs for remedial action activities;

NR 747.30(1)(e)2. 2. Labor and fringe benefit costs associated with inspection and supervision other than specified in subd. 4.;

NR 747.30(1)(e)3. 3. Actual costs incurred for travel and lodging which are not in excess of state travel rates; and

NR 747.30(1)(e)4. 4. Actual verified labor, fringe benefit and equipment costs when claimants use their own personnel or equipment to conduct a remediation.

NR 747.30 Note Note: A listing of state travel and meal rates may be obtained by writing to the Wisconsin DNR, Bureau for Remediation & Redevelopment, P.O. Box 7921, Madison WI 53707-7921.

NR 747.30(1)(f) (f) Costs associated with the preparation of a claim package under the scope of this chapter and other related costs:

NR 747.30(1)(f)1. 1. Fees up to $500 for a certified public accountant, contractor, or other independent preparer for compiling a claim under this chapter; and

NR 747.30(1)(f)2. 2. For an owner or operator only, compensation to third parties for bodily injury and property damage caused by a petroleum product discharge from an underground petroleum product storage tank system.

NR 747.30(1)(g) (g) Costs associated with the support or protection of existing utilities or structures located within the remediation area during a remediation.

NR 747.30 Note Note: Reimbursement for the re-installation of utilities or structures, without prior department approval, may not be made.

NR 747.30(2) (2) Exclusions from eligible costs. The department has identified various costs determined to be ineligible for reimbursement. Section 292.63, Stats., lists specific cost items which may not be reimbursable under the PECFA program. In order to control costs and provide awards for the most cost-effective remediations of petroleum-contaminated sites within the scope of this chapter, the following costs may not be reimbursed:

NR 747.30(2)(a) (a) Costs determined to be unrelated to remedial action activities under the scope of this chapter:

NR 747.30(2)(a)1. 1. Any costs not supported by cancelled checks or other absolute proof of payment at time of submittal;

NR 747.30(2)(a)2. 2. Any overtime labor charge, excluding an emergency action, billed at other than a straight time rate;

NR 747.30(2)(a)3. 3. Costs for contamination cleanups from non-residential heating oil or boiler tank systems and discharges from mobile fueling tanks or fuel storage tanks on vehicles;

NR 747.30(2)(a)4. 4. Costs associated with used oil remediations, if the oil is not from internal combustion engines;

NR 747.30(2)(a)5. 5. Costs associated with environmental audits, environmental reconnaissance or real estate transactions, construction projects, new construction or long-term loan transactions;

NR 747.30(2)(a)6. 6. Costs associated with investigation activities to locate petroleum product storage systems or home oil tank systems to determine eligibility for an award under the scope of this chapter;

NR 747.30(2)(a)7. 7. Costs incurred after the department determines that no further remedial action is required, except for abandonment of monitoring wells and finalization of site closure;

NR 747.30(2)(a)8. 8. Other costs that the department determines to be associated with, but not integral to, the remediation of a petroleum product discharge from a petroleum product storage system or home oil tank system.

NR 747.30(2)(b) (b) Costs related to improper or incompetent remedial activities and services:

NR 747.30(2)(b)1. 1. Costs associated with incompetent or non-effective cleanup actions which were not based upon sound professional and scientific judgment;

NR 747.30(2)(b)2. 2. Costs of redoing remedial action activities or remedial action work which was incomplete or incompetent;

NR 747.30(2)(b)3. 3. Costs associated with rework on remedial systems to accommodate construction, upgrades, retrofits, or redevelopment projects;

NR 747.30(2)(b)4. 4. Any costs associated with actions that exceed the necessary activities to bring a site to the required level of remediation;

NR 747.30(2)(b)5. 5. Costs associated with the repair or replacement of damaged buildings, sewer lines, water lines, electrical lines, phone lines, fiber optic lines or other utilities on the property;

NR 747.30(2)(b)6. 6. Costs associated with the re-installation of damaged remedial equipment or the re-installation or modification of the remedial equipment for purposes other than effective remediation;

NR 747.30(2)(b)7. 7. Additional interest costs accrued due to improper or incomplete filing of claims or non-response to department requests for additional information, exceptions being delays caused by the department claim process;

NR 747.30(2)(b)8. 8. Any late service charges;

NR 747.30(2)(b)9. 9. Any costs related to invoices or bills for which payment verification is unobtainable.

NR 747.30(2)(c) (c) Costs for testing or sampling unrelated to the investigation for the extent of contamination under the scope of this chapter:

NR 747.30(2)(c)1. 1. Costs for sampling and testing for heavy metals, except lead testing when the discharge is verified to be from leaded gasoline, or lead and cadmium when the source is used motor oil;

NR 747.30(2)(c)2. 2. Costs associated with the analysis for inappropriate constituents not normally part of or associated with an eligible petroleum product even if required by the department; and

NR 747.30(2)(d) (d)

NR 747.30(2)(d)1. 1. Costs for remedial action activities funded under 42 USC 6991, unless the owner or operator or the person owning the home oil tank system repays the funds provided under 42 USC 6991;

NR 747.30(2)(d)2. 2. Expenditures required by the department in order to meet the groundwater protection standards, ch. 160, Stats., ch. ATCP 93 or other administrative rules but not related to a petroleum product discharge under this chapter;

NR 747.30(2)(d)3. 3. Costs associated with loss of business;

NR 747.30(2)(d)4. 4. Costs associated with loss of interest or dividends, or interest costs from a loan other than one for the remediation; and

NR 747.30(2)(e) (e) Costs associated with site closure:

NR 747.30(2)(e)1. 1. Costs associated with the closure of a tank system;

NR 747.30(2)(e)2. 2. Costs associated with tank closure assessments;

NR 747.30(2)(e)3. 3. Costs associated with the abandonment of wells not related to the remedial action.