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.
NR 747.337(3)(b)
(b)
Presence of environmental factors. Consultants for sites that exhibit one or more environmental factors shall complete an analysis of remedial alternatives and prepare a remedial action plan. The analysis shall identify the lowest cost remedial strategy that will address the environmental factor and the remediation of the site. Included within the action plan shall be a cost detail providing separate dollar amounts for consulting and commodity activities. The cost detail shall provide the total cost, excluding interest but including all closure costs, for the remediation up to approval as a closed remedial action. The remedial action plan, cost detail, information on any interim actions conducted during the site investigation, and a separate report providing the information detailed in
s. NR 716.15, and including an estimate of total contaminant mass, shall be submitted to the department and approval of the cost detail received before conducting any remedial action for which reimbursement will be claimed under the PECFA fund.
NR 747.337(3)(c)
(c)
Absence of environmental factor. If no environmental factors are identified during or after a site investigation, the consultant will develop an analysis of remedial alternatives and prepare a remedial action plan utilizing a non-active treatment approach. The analysis shall identify the lowest cost remedial strategy that will address the remediation of the site. Included within the analysis shall be a cost detail providing separate dollar amounts for consulting and commodity activities. The cost detail shall provide the total cost, excluding interest but including all closure costs, for the remediation up to approval as a closed remedial action. The remedial action plan, cost detail, and a separate report providing the information detailed in
s. NR 716.15, and including an estimate of total contaminant mass, shall be submitted to the department and approval of the cost detail received before conducting any remedial action for which reimbursement will be claimed under the PECFA fund. The alternative proposed may include only the use of the following:
NR 747.337(3)(c)2.
2. Development and remediation to site specific residual contamination levels.
NR 747.337(3)(c)3.
3. Monitoring to evaluate the potential for remediation by natural attenuation.
NR 747.337(3)(d)
(d)
Additional controls. Any alternative proposed to the department shall identify whether it assumes or includes the use of any institutional controls, groundwater use restrictions, deed notices or other restrictions or notifications.
NR 747.337(4)
(4) Cost caps for occurrences that are not subject to public bidding. For an occurrence that is not subject to the public bidding process in
s. NR 747.68 due to a waiver issued under
s. NR 747.63 (1), cost caps shall be established as prescribed in s.
292.63 (3) (cs), Stats.
NR 747.337 Note
Note: Section
292.63 (3) (cs), Stats., reads as follows: “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.
NR 747.337 Note
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.
NR 747.337 Note
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.
NR 747.337(6)(a)(a) After receiving an approval of a remedial action plan from the department, a claimant may elect to either implement the alternative or to select another alternative. If the claimant elects to implement a higher cost remedial strategy, the claimant shall notify the department in writing of the intent to use a higher cost alternative. The notification shall include the statement that the claimant agrees that the department approved alternative establishes the maximum reimbursable amount for consulting and commodity services under the fund and that additional costs for the occurrence, excluding interest, will not be submitted to the fund.
NR 747.337(6)(b)
(b) The department may elect to approve reimbursement for a higher cost remedial strategy if it furthers the objectives of the program.
NR 747.337 History
History: Cr.
Register, December, 1998, No. 516, eff. 1-1-99;
CR 04-058: am. (2) (a) to (c), r. (4) and (5), cr. (4)
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;
corrections in (4) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694. NR 747.338(1)
(1)
General. The department may review the remedial performance and costs associated with any existing sites. As part of the review, the department may elect to do any or all of the following:
NR 747.338(1)(a)
(a) Deny any or all funding, after July 1, 1998, if a claimant failed to carry out site recommendations developed by the department in its “PECFA Efficiency Project."
NR 747.338 Note
Note: “PECFA Efficiency Project" refers to a study conducted by the department.
NR 747.338(1)(b)
(b) Deny any or all funding if a claimant fails to provide information required by the department as part of a review of existing sites.
NR 747.338(2)
(2) Existing site caps or estimates. The department may require a redetermination of costs for any existing site to establish a total cost, excluding interest but including all closure costs, to achieve the status of a closed remedial action. After reviewing the total cost, the department may do any or a combination of the following: approve and establish a cap on total costs, excluding interest; deny approval of costs; approve system enhancements; bundle the site with another remediation(s); or direct the site through a public bid process to establish a lower site cost. A claimant may elect either to implement the alternative or to select another alternative. If the claimant elects to implement a higher cost remedial strategy, the claimant shall notify the department in writing of the intent to use a higher cost alternative. The notification shall include the statement that the claimant agrees that the department-approved alternative establishes the maximum reimbursable amount for consulting and commodity services under the fund and that additional costs for the occurrence, excluding interest, will not be submitted to the fund.
NR 747.338 History
History: Cr.
Register, December, 1998, No. 516, eff. 1-1-99;
correction in (1) (a) made under s. 13.92 (4) (b) 6., Stats., Register October 2013 No. 694. NR 747.339
NR 747.339 Cost effective remediations. NR 747.339(1)
(1)
Flexibility. If a claimant can achieve a closed remedial action, and the total costs incurred are equal to or less than $60,000, excluding interest, the department will allow the claimant to complete their remedial efforts without the requirements to:
NR 747.339(1)(a)
(a) Develop and submit investigation and other interim environmental reports, if the site closure decision falls under the department's authority.
NR 747.339(1)(b)
(b) Develop and submit a remedial action plan and be potentially subject to caps, bundling and public bidding.
NR 747.339(2)
(2) Notification and requirements. If a claimant and his or her consultant elect to attempt to achieve a closed remedial action within the $60,000 limit, the department shall be notified in advance of implementation of the remediation process of the intended attempt. If the effort is not successful, the department shall be notified as soon as it is known or should have reasonably been expected to be known that the site will not be completed within the $60,000 limit. The $60,000 limit shall not be exceeded without prior notice to and approval from the department. After notification of the failure to accomplish a closed remedial action, the department will provide direction on whether additional action will be funded. If any expenses above the $60,000 limit are incurred without department approval, they may not be claimed for reimbursement under the PECFA fund.
NR 747.339(3)
(3) Disqualification. If a consulting firm or consultant, in the opinion of the department, exhibits a pattern of attempting and failing to complete remediations under this section, the department will notify the consultant or the firm of the general restriction from attempting the remediations. The department may also disqualify the consultant from performing all work under PECFA.
NR 747.339(4)
(4) Sunset of this section. The election under
sub. (2) to utilize this section may not be made on or after May 1, 2006.
NR 747.339 History
History: Cr.
Register, December, 1998, No. 516, eff. 1-1-99;
CR 04-058: am. (1) (intro.) and (2), cr. (4)
Register February 2006 No. 602, eff. 5-1-06.
NR 747.34
NR 747.34 Reduction of deductible, based on financial hardship. NR 747.34(1)(1) The deductible amount specified in s.
292.63 (4) (dg), Stats., for underground petroleum product storage systems may be reduced by the department to $2500, where proof of financial hardship is established in accordance with
sub. (2).
NR 747.34(2)
(2) Financial hardship shall be demonstrated on a form provided by the department, in sufficient detail to enable the department to determine whether the hardship either exists, or will occur if the deductible is not reduced under this section.
NR 747.34 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 747.34 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94;
CR 04-058: r. and recr.
Register February 2006 No. 602, eff. 5-1-06.
NR 747.355
NR 747.355 Award payments for claims received by the department on or after April 21, 1998. NR 747.355(1)
(1)
General. Awards shall be made if funds are available at the time of completion of a claim review.
NR 747.355(2)(a)(a) Except for those cases specified in
sub. (3) (a) and
(b), claims shall be paid on a strict first-in-first-out basis with the claim date being established when any required state agency approval and the complete claim package have been received by the department.
NR 747.355(2)(b)
(b)
Closure. Payments shall be made for closed remedial actions.
NR 747.355(2)(c)
(c)
Progress payments. All requests for progress payments shall be accompanied by a completed Remedial Action Fund Application form (ERS-8067). The department may conduct field or financial audits or inspections to verify completion of each phase of remediation prior to payment. Progress payments may be made only at the following times:
NR 747.355(2)(c)2.
2. After completion of an investigation and receipt of written approval by the department to submit the investigation claim.
NR 747.355(2)(c)4.
4. Approval of natural attenuation as a final remedial response or at the end of each one-year cycle of the monitoring necessary to show that remediation by natural attenuation will occur.
NR 747.355(2)(c)5.
5. At the end of each one-year cycle of monitoring required for off-site contamination.
NR 747.355(2)(c)6.
6. After implementation and 1 year of actual operation, or monitoring, or combination thereof, and every 1 year thereafter.
NR 747.355(2)(c)7.
7. For sites selected by the department for progress payments based upon extreme life safety and environmental risk and where the claimant has demonstrated to the department's satisfaction that he or she does not have the financial means to conduct a remediation without progress payments: the department shall be the sole determiner of whether progress payments are to be allowed, and an appeal of the decision to the department is not allowed.
NR 747.355(2)(d)
(d)
Other interim payments. The department shall also make awards at the following points:
NR 747.355(2)(d)1.
1. When a lender terminates a funding relationship with a claimant and requests reimbursement for the funds expended. A completed Assignment of PECFA Reimbursement form (ERS-8523) shall be submitted to the department prior to payment and the check shall be jointly paid to the claimant and the lender.
NR 747.355(2)(d)2.
2. When a claimant has incurred eligible expenses equal to the occurrence maximum plus the applicable deductible.
NR 747.355 Note
Note: Section
292.63 (4) (a) 2. b., Stats., reads as follows: “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."
