NR 747.325 Note
Note: The department of commerce promulgated rule order
CR 07-032, relating to the schedule of usual and customary costs for the petroleum environmental cleanup fund awards, which was filed with the revisor of statutes bureau for publication in the October 2007 Wisconsin Administrative Register. The department directed that the schedule not be published in the Wisconsin Administrative Code as it is a “form" under s.
227.23, Stats., available as described in the next note, consistent with the requirements of s.
227.23 (3), Stats.
NR 747.325 Note
Note: The department's schedule of usual and customary costs is reviewed for updating in January and July of each year to reflect changes in actual costs. The current schedule, and all preceding versions, are posted at
http://dnr.wi.gov/topic/brownfields/pecfa.html, under petroleum programs and PECFA.
NR 747.325 Note
Note: The schedule of usual and customary costs limits the per-unit reimbursement for various, commonly associated tasks. For caps on reimbursement for items that are not commonly associated with claims, or for caps on the scope of work for a particular task or occurrence, other sections of this chapter may apply, such as s.
NR 747.337 (2), which addresses the maximum allowable cost for a site investigation and the development of a remedial action plan, and subch. VI, which addresses competitive public bidding.
NR 747.325(3)
(3) Exceeding the schedule. The maximum reimbursement amounts established under
sub. (2) may be exceeded only in accordance with all of the following:
NR 747.325(3)(b)
(b) The higher costs, as needed under
par. (a), are specifically approved in writing by the department prior to performance of the corresponding work.
NR 747.325 Note
Note: Under s.
292.63 (3) (c) 3., Stats., a responsible party is required to “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, Stats."
NR 747.325(4)(a)(a) No later than 30 days after May 1, 2006, the responsible party or agent for each occurrence reported to the department by May 1, 2006, shall complete and submit to the department an occurrence-classification form prescribed by the department, except as provided in
par. (c).
NR 747.325(4)(b)
(b) If an occurrence-classification form required under
par. (a) is not submitted in accordance with
par. (a), the department may not reimburse costs for any work performed between May 1, 2006, and the date the department receives the form.
NR 747.325(4)(c)
(c) An occurrence-classification form is not required where the only remaining work consists of submitting a claim or completing the conditions in a conditional closure letter from the department.
NR 747.325(5)(a)(a) If the department requests additional information after receipt of the occurrence-classification form required in
sub. (4), the responsible party or agent shall provide the requested information no later than 45 days after the date of the department's request.
NR 747.325(5)(b)
(b) If information requested under
par. (a) is not submitted in accordance with
par. (a), the department may only reimburse costs for the subject occurrence that are listed on the schedule established under
sub. (2).
NR 747.325(6)
(6) Response to the occurrence-classification form or to additional information. After receipt of the occurrence-classification form required under
sub. (4) or the additional information requested under
sub. (5), the department may take one or more of the following actions:
NR 747.325(6)(a)
(a) Limit reimbursement to the costs listed in the schedule established under
sub. (2).
NR 747.325(6)(b)
(b) Specify a reimbursement cap for costs that are not listed in the schedule established under
sub. (2).
NR 747.325(6)(c)
(c) Specify a scope of work and a corresponding reimbursement cap.
NR 747.325(7)
(7) Claims for prior costs. For an occurrence that is the subject of a department directive under
sub. (6) (b),
(c) or
(d), claims for reimbursement for costs incurred before the effective date of the directive shall be paid in accordance with
s. NR 747.025.
NR 747.325 Note
Note: As required in s.
NR 747.12 (1) (intro.), all claims for reimbursement for the costs included in the schedule established under sub. (2), or the costs included under sub. (7), must be submitted in a format prescribed by the department.
NR 747.325 History
History: CR 04-058: cr.
Register February 2006 No. 602, eff. 5-1-06;
CR 07-032:
Register October 2007 No. 622; correction in (7) made under s.
13.92 (4) (b) 7., Stats.,
Register December 2011 No. 672;
corrections in (1) (intro.), (a), (3) (a), (4) (a), (c), (6) (d), (7) made under s. 13.92 (4) (b) 6., 7., Stats., Register October 2013 No. 694. NR 747.33
NR 747.33 Comparative proposals and bid processes for remediation activities and services. NR 747.33(1)(1) Except for home oil tank owners and department approved emergency actions, the purchase of consulting and commodity services, not already covered by a detailed written contract, as of February 1, 1993, shall conform to the procedures in this section. In order to qualify as an existing contract, the document shall be with a specific service provider and shall specify contract items, such as but not limited to, the project details, time limitations, projected completion dates, payment terms and other standard contract language.
NR 747.33(2)(a)1.1. An owner or operator shall select a PECFA consulting firm, as so registered under
s. SPS 305.80, to conduct all site investigation and remedial action activities, and shall execute a written
contract with that firm.
NR 747.33(2)(a)2.
2. The services of the selected consulting firm shall be limited to providing the consulting services or scientific evaluations necessary to conduct an environmental response. The consulting firm and any company or consultant not independent of the consulting firm or project consultants are prohibited from providing any of the commodity services required in the remediation.
NR 747.33(2)(b)1.1. All commodity services which include, but are not limited to, soil borings, monitoring-well construction, laboratory analysis, excavation and trucking shall be obtained through a competitive bid process. A minimum of 3 bids are required to be obtained and the lowest cost service provider shall be selected. An employee of a commodity service provider may not participate in the preparation of bid documents or other requirements of the bid process, except for providing technical material, if the employee's firm is a bidder.
NR 747.33(2)(b)2.
2. Consulting firms may elect to bid laboratory services on a calendar-year basis in order to obtain volume discounts and reduce the number of bids that shall be completed for each remediation. In completing the competitive bid process, the consulting firm shall obtain a minimum of 3 written bids from qualified firms that respond to the specifications and estimated volume of work provided by the consulting firm. Only PECFA-eligible laboratory work shall be included in the analysis to determine the lowest cost service provider. The lowest bid shall be accepted. All discounts, rebates and savings shall be reflected in the PECFA claim.
NR 747.33(2)(b)3.
3. The analysis of laboratory tests for passive or active bio-remediation and the performance of pump or pilot tests may be accomplished by either consultants or commodity providers. If these services are obtained by a consulting firm, as part of their consulting service, then the bidding of this service shall not be required.
NR 747.33(2)(b)4.
4. An owner or operator may appeal to the department to obtain approval to select other than the lowest cost commodity service provider. The department may approve an appeal if it determines that the use of another service provider will further the goals of the program.
NR 747.33(2)(c)1.1. The owner or operator shall select the lowest cost remediation alternative that will result in a closed remedial action. The responsible party may select a higher cost alternative if he or she certifies to the department in writing that the additional costs will not be claimed for PECFA reimbursement.
NR 747.33(2)(c)2.
2. A higher cost remediation alternative may be allowed by the department if it determines that the alternative would further the goals of the program.
NR 747.33(3)
(3) Remediation. For sites for which a remedial alternative was received by the department before April 21, 1998, the following shall apply:
NR 747.33(3)(a)
(a) The estimated cost for the selected remediation alternative contained in the remedial action plan shall provide a separate dollar amount for consulting services and for commodity items. The estimated costs for these items shall be submitted to the department as part of the comparison of remedial alternatives or, if the submittal of the alternatives is not required as specified in
s. NR 747.335 (3) (c), prior to the start of the remedial activities.
NR 747.33(3)(b)
(b) A dollar amount approved by the department shall establish the maximum reimbursable amount for consulting services during the remediation.
NR 747.33(3)(c)
(c) The cost detail for the selected remediation alternative shall establish the total estimated cost for the remediation up to receiving approval as a closed remedial action. The estimate may be used to establish a maximum reimbursable amount. If the estimated consulting or commodity costs are established as maximum reimbursable amounts, and one or both will be exceeded, the consultant shall immediately notify in writing the claimant and the department of the anticipated actual cost.
NR 747.33(3)(d)
(d) If it is determined that the consulting or commodity services may not be completed within the original estimate, the owner or operator and the consultant shall provide a written account, to the department, of the additional work to be performed in order to prove the need for additional funding. Failure to obtain written approval of the additional costs by providing justification acceptable to the department shall constitute grounds for disallowing the additional expenses. Cost guidelines, as published by the department, may be used as one factor in determining if an approval for additional work is warranted.
NR 747.33(4)
(4) Commodity items requiring competitive bidding. The following items shall be competitively bid. All bids shall be in units standard to the industry.
NR 747.33(4)(b)
(b) Trucking of petroleum-contaminated soils or backfill material;
NR 747.33(4)(h)
(h) Surveying if the service requires a registered land surveyor; and
NR 747.33(5)
(5) Commodity bundles. The owner or operator may combine individual commodity items into one bid. These bundles of commodities shall be bid by at least 3 service providers and the lowest cost service provider shall be selected.
NR 747.33(6)(a)(a) Commodity items with a purchase price of $1,000 or less shall be exempt from the competitive bid requirement. The exclusion from commodity bidding may not be used if a service is to be used multiple times and the cumulative cost exceeds $1,000.
NR 747.33(6)(b)1.1. The department may exempt specific services from the competitive commodity bid process if the department determines that the conduct of the bid proposal process is unlikely to further the remediation process or the goals of the program.
NR 747.33(6)(b)2.
2. Written department approval shall be received prior to incurring costs for services that are exempted under
subd. 1., except where a subsequent department waiver of the approval requirement would further the goals or objectives of the program.
NR 747.33 Note
Note: As established in s.
NR 747.30 (2) (m) and
(i), the department will not reimburse costs, including interest cost, for services exempted under subd. 1., if the costs are incurred prior to the department approval required under subd. 2., and the approval requirement is not subsequently waived.
NR 747.33(6)(c)
(c) The competitive commodity bidding required under
subs. (2) (b) and
(4) is not required where reimbursement amounts are determined either by the usual and customary cost schedule established under
s. NR 747.325, or by the public bidding process in subch.
VI.
NR 747.33(6)(d)
(d) The prohibition in
sub. (2) (a) 2. against consultants or their associates providing commodity services does not apply where reimbursement amounts are determined either by the usual and customary cost schedule established under
s. NR 747.325, or by the public bidding process in subch.
VI.
NR 747.33(7)
(7) Documentation. The owner or operator shall maintain the documents and data used in the competitive bid and selection process. These records shall be maintained and provided to the department if requested as part of the claim review or audit processes.
NR 747.33 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94; r. and recr. (intro.) to (2), r. (3) and (4), renum. (5) to (8) to be (3) to (6) and am. (5) (a),
Register, December, 1998, No. 516, eff. 1-1-99;
CR 04-058: renum. (intro.) and (1) to (6) to be (1) to (7) and am. (2) (a) and (6) (b), cr. (6) (c) and (d)
Register February 2006 No. 602, eff. 5-1-06; correction in (2) (a) 1., (3) (a), (6) (c), (d) made under s.
13.92 (4) (b) 7., Stats.,
Register December 2011 No. 672;
corrections in (2), (3) (a), (6) (c), (d) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694. NR 747.335
NR 747.335 Site investigation and remedial action plan development cap. NR 747.335(1)
(1)
General. Site investigations which were not started as of January 15, 1993, and for which a remedial alternative was received by the department before April 21, 1998, shall conform to this section.
NR 747.335(2)
(2) Maximum allowable cost. The maximum allowable cost for a site investigation and the development of a remedial action plan shall be no more than $40,000, excluding interest, feasibility testing, and interim action costs, unless approved under
par. (a).
NR 747.335(2)(a)
(a) If the investigation will exceed $40,000, the responsible party or its agent, shall contact the department in writing and provide an estimate of additional work and funding required and obtain the department's approval. If the additional approval is not obtained, costs above the $40,000 level will not be reimbursed.
NR 747.335(2)(b)
(b) The consultant is responsible for monitoring the costs incurred in the investigation and remedial plan development and identifying that the $40,000 maximum may be exceeded. The consultant shall notify the owner, in writing, at the earliest point at which the consultant may know, or may have been reasonably expected to know, that the maximum allowable cost may be exceeded and that the approval of the department shall be obtained before any costs above $40,000 will be reimbursed by the department. The notification to the owner shall be made before the owner has incurred liabilities above the $40,000 maximum.
NR 747.335(3)(a)(a) The remedial action plan developed for the site shall include a consideration of at least 3 alternatives, one of which shall be passive bio-remediation with long-term monitoring. The consideration of alternatives shall include a basic comparison of costs and the recommended alternative shall have a detailed cost estimate. If passive bio-remediation with long-term monitoring is feasible but not the recommended alternative, a clear rationale shall be provided as to why this alternative is not acceptable. Costs of long-term monitoring, or operation and maintenance shall be included in the comparison of costs in considering the alternatives.
NR 747.335(3)(b)
(b) If the consideration of the passive bio-remediation or monitoring alternative shall be excluded because of site characteristics, the alternative shall be replaced by consideration of another alternative. If an alternative is substituted for the passive bio-remediation or monitoring alternative, the reason for this change shall be documented in the analysis.
NR 747.335(3)(c)1.1. The comparison of alternatives shall be a concise document written so that the responsible party and the department may easily compare alternatives. Only alternatives which are reasonably expected to be approved may be included in the comparison. The comparison of alternatives shall be submitted to the department if the proposed alternative is greater than $60,000. The comparison submitted to the department shall not include the full remedial action plan, unless requested by the department.
NR 747.335(3)(c)2.
2. If the comparison document is determined by the department to be excessive or non-approvable alternatives are included, the department may require that the comparison be revised and resubmitted.
NR 747.335(4)
(4) Start of investigation. An investigation shall be considered started if, after confirmation of a contamination is obtained, additional soil borings, soil sampling or monitoring-well construction have begun. In addition, the work on the site shall have an element of continuity. If work on a site stops for a period of 2 years or more, the site shall then fall under
s. NR 747.335 (2) and
(3) or
747.337 depending on whether a remedial alternative was received by the department as of April 20, 1998.
NR 747.335 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94; r. and recr. (1), am. (3) (c) 1. and (4),
Register, December, 1998, No. 516, eff. 1-1-99;
CR 04-058: am. (3) (c) 1.
Register February 2006 No. 602, eff. 5-1-06; correction in (4) made under s.
13.92 (4) (b) 7., Stats.,
Register December 2011 No. 672;
correction in (4) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694. NR 747.337
NR 747.337 Site investigation and remedial action. NR 747.337(1)(1)
General. Sites for which site investigations were not started as of January 15, 1993, and for which a remedial alternative has not been received by the department as of April 20, 1998, shall conform to this section. The scope of the site investigation shall include determining the presence of the environmental factors specified in
sub. (3) (a).
NR 747.337(2)(a)(a) The maximum allowable cost for a site investigation and the development of a remedial action plan shall be no more than $20,000, excluding interest and interim action costs, unless approved under
par. (b).
NR 747.337(2)(b)
(b) If the investigation will exceed $20,000, either the claimant, their agent or the consultant shall contact the department in writing and provide an estimate of additional work and funding required, and obtain the department's approval.
NR 747.337(2)(c)
(c) The consultant is responsible for monitoring the costs incurred in the investigation and remedial action plan development and notifying the department prior to exceeding the $20,000
maximum. The consultant shall also notify the claimant, in writing, at the earliest point at which the consultant may know, or may have been reasonably expected to know, that the maximum allowable cost may be exceeded. The written approval of the department shall be obtained before incurring any costs above $20,000. The notification to the owner shall be made before the owner has incurred liabilities above the $20,000 maximum
NR 747.337 Note
Note: As established in s.
NR 747.30 (2) (n) and
(i), the department will not reimburse costs, including interest costs, above the $20,000 limit in this subsection if they are incurred prior to either providing the notices that are required in par. (c), or obtaining the approval which is required in par. (b).
NR 747.337(2)(d)
(d) If interim actions are performed during the course of an investigation or prior to the approval of a remedial action plan, costs above $5000, excluding interest, shall not be reimbursed. The department shall be informed prior to the implementation of any interim action.
NR 747.337(3)(a)(a)
Environmental factors. Consultants shall determine the presence of any of the following environmental factors:
NR 747.337(3)(a)2.
2. Verified contaminant concentrations in a private or public potable well that exceeds the preventive action limit established under
ch. 160, Stats.
NR 747.337(3)(a)4.
4. Petroleum product that is not in the dissolved phase is present with a thickness of .01 feet or more, and verified by more than one sampling event.
