Chapter NR 747

NR 747.337(3)(c)4. 4. Remediation by natural attenuation.

NR 747.337(3)(c)5. 5. Monitoring.

NR 747.337(3)(c)6. 6. Institutional controls and site restrictions.

NR 747.337(3)(c)7. 7. Other non-active remedial approaches.

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) (6) Claimant options.

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 NR 747.338 Review of existing sites.

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(1)(c) (c) Adhere to the $40,000 cap on investigation costs.

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 Note Note: See the Note under s. NR 747.025 (2) for a reprint of s. 292.63 (4) (dg), Stats.

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) (2) Sequencing payments.

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)1. 1. Completion of an emergency action.

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)3. 3. Approval of a closed remedial action.

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(2)(d)3. 3. When the conditions prescribed in s. 292.63 (4) (a) 2. b., Stats., occur.

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.”

NR 747.355(2)(d)4. 4. When there is a change in responsible party, if the previous responsible party files a claim.

NR 747.355(2)(d)5. 5. When there is a change in consulting firms working on the project.

NR 747.355(2)(d)6. 6. When there is a change in lenders for the project.

NR 747.355(2)(d)7. 7. When the department directs filing a claim, in an effort to reduce interest costs to the program.

NR 747.355 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 747.355(2)(e) (e) Penalty for not submitting a required claim. If a claim submittal that is directed under par. (d) 7. is not submitted within 120 days of receiving written notification of that directive, any interest expense beginning on the 121st day and extending until the department receives the claim, is not eligible.

NR 747.355(3) (3) Priority processing.

NR 747.355(3)(a) (a) Emergency actions. The department may, after determining that an emergency exists, make an award in advance of claims received prior to the emergency claim. The finding of an emergency shall be made based upon an immediate need to protect public health and safety. The finding of an emergency may not be based on financial hardship or indigence of the responsible party or agent. The department shall be the sole determiner of whether an emergency exists, and an appeal of the decision to the department is not allowed.

NR 747.355(3)(b) (b) Cost-effective remediations, tanks for schools and farms, and home oil tanks.

NR 747.355(3)(b)1. 1. Claims received under subds. 2. and 3. may be processed and awards may be made thereto, before processing other complete claims, except for emergency claims under par. (a), and except for claims for either home oil tanks or farm tanks, as prescribed in s. 292.63 (4) (a) 5. and 5m., Stats., respectively.

NR 747.355 Note Note: Sections 292.63 (4) (a) 5. and 5m., Stats., read as follows:

NR 747.355 Note “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.

NR 747.355 Note 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.”

NR 747.355(3)(b)2. 2. Priority processing may be assigned to a claim for a closed remedial action that is achieved at a total cost of $60,000 or less, excluding interest.

NR 747.355(3)(b)3. 3. Priority processing may be assigned to a claim for a petroleum product storage system which is owned by a school district and which is used for storing heating oil for consumptive use on the premises where stored.

NR 747.355 History History: Cr. Register, December, 1998, No. 516, eff. 1-1-99; CR 04-058: am. (2) (c) (intro.), 2., and 4. to 8., cr. (2) (d) 3. to 7., (e), (3) (b) 2. and 3., renum. (3) (b) to be (3) (b) 1. and am. Register February 2006 No. 602, eff. 5-1-06; corrections in (2) (d) 3., (3) (b) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 747.36 NR 747.36 Third-party claims.

NR 747.36(1) (1) General. A responsible party may file a claim with the department for the reimbursement of an amount paid to third parties for personal injury to another individual or off-site property damage associated with a petroleum product discharge from an underground petroleum product storage tank system within the scope of this chapter. The existence of these claims shall be made known to the department, by the responsible party, no later than 30 calendar days from the date that the responsible party knew or could have reasonably been expected to have known of the occurrence of the injury or personal property loss. Rules established by the office of the commissioner of insurance, as specified in s. Ins 6.35, concerning ineligible costs for third-party claims, shall apply.

NR 747.36(2) (2) Third-party compensation for underground storage tanks. Costs incurred from environmental pollution and remediation actions, including compensation to third parties for property damage and individual bodily injury, may be deemed eligible costs as specified in s. NR 747.30 (1).

NR 747.36 Note Note: Liabilities which are excluded from coverage in liability insurance policies for bodily injury and liabilities which are excluded in liability insurance policies for property damage, for the purpose of this chapter, are defined by the state of Wisconsin commissioner of insurance, as specified in s. Ins 6.35, as required in s. 292.63 (1m), Stats.

NR 747.36 Note Note: If a person conducts a remedial action activity for a discharge from a petroleum product storage tank system or home oil tank system, whether or not the person files a claim under this chapter, the claim and remedial action activity conducted are not evidence of liability or an admission of liability for any potential or actual environmental pollution, as specified in s. 292.63 (7) (b), Stats.

NR 747.36(3) (3) Intervention in third-party claims. The owner or operator of an underground petroleum product storage system eligible for an award under the scope of this chapter, shall notify the department in writing of any action by a third party against the owner or operator for compensation. The department may intervene in any third-party actions against an owner or operator of an underground petroleum product storage tank system for compensation for bodily injury or property damage. The department of justice may assist the department in this intervention.

NR 747.36(4) (4) Third-party compensation for aboveground storage tank systems. Third-party damages are not a reimbursable expense if the damage is the result of a discharge from an aboveground petroleum product storage system.

NR 747.36(5) (5) Reasonable judgment determination.

NR 747.36(5)(a) (a) Third-party personal injury. The department may establish a peer review adjudicator panel to review third-party personal injury reimbursement claims resulting from a discharge from an underground petroleum product system under the scope of this chapter. The review panel shall make a monetary determination for reimbursement based upon reasonable health care service costs and other computation methods established by the department.

NR 747.36(5)(b) (b) Peer review adjudicator panel. The panel may make a recommendation to the department for an award from the fund to compensate the third party for personal injury or property damage. The department shall review the recommendation and make a decision regarding an award amount under the program.

NR 747.36(5)(c) (c) Third-party property claims. For third-party claims associated with the removal of property items such as, but not limited to, blacktop and cement, the depreciated value of the property may be reimbursed. The basis of the value of the property shall be included in the claim. Full replacement costs may not be reimbursed by the fund.

NR 747.36(6) (6) Eligible costs.

NR 747.36(6)(a) (a) A responsible party may include the reimbursement for personal injury or property damage costs on a claim for an award within the scope of this chapter. Reimbursement of a claim shall be based upon a showing that the cost was caused by the petroleum product discharge and that the amount claimed is reasonable.

NR 747.36(6)(b) (b) If third-party claims exceed the maximum allowed under this chapter for the applicable type of underground petroleum product storage tank system, costs shall be reimbursed in the following order:

NR 747.36(6)(b)1. 1. Eligible costs of on-site and off-site remediation and replacement of drinking water wells;

NR 747.36(6)(b)2. 2. Eligible costs for personal injury; and

NR 747.36(6)(b)3. 3. Eligible costs for property damage.

NR 747.36 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 04-058: am. (1) Register February 2006 No. 602, eff. 5-1-06; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 747.37 NR 747.37 Recovery of awards. Sale of remedial equipment or supplies shall comply with s. 292.63 (5) (a), Stats.

NR 747.37 Note Note: Section 292.63 (5) (a), Stats., reads as follows: “If a person who received an award under this section sells equipment or supplies that were eligible costs for which the award was issued, the person shall pay the proceeds of the sale to the department. The proceeds shall be paid into the petroleum inspection fund.”