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."
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)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)(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
“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(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)(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)(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 747.37
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."
NR 747.40
NR 747.40 Reimbursement and credentials. Remedial consulting services and activities performed by individuals and firms who do not have the applicable credentials under
ss. SPS 305.80 and
305.81 to participate in the PECFA program may not be reimbursed under the scope of this chapter unless the department determines that denying the reimbursement would conflict with achieving the goals of the PECFA program.
NR 747.41
NR 747.41 Laboratories and drilling firms. NR 747.41(1)(a)(a) As of March 1, 1994, all laboratories performing work under the PECFA program shall obtain and maintain errors and omissions (professional liability) coverage of no less than $1,000,000 per claim, $1,000,000 annual aggregate and a deductible of no more than $100,000 per claim.
NR 747.41(1)(b)
(b) As of March 1, 1994, all drilling firms performing work under the PECFA program shall obtain and maintain general liability coverage, including pollution impairment liability, of no less than $1,000,000 per claim, $1,000,000 annual aggregate and a deductible of no more than $100,000 per claim.
NR 747.41(2)
(2) Coverage. The insurance obtained by laboratory and drilling firms shall cover work performed under PECFA on or after March 1, 1994. For all laboratory and drilling firms included in a claim, a certificate or certificates verifying the existence of the insurance coverage as specified in
sub. (1), shall be submitted with the PECFA claim.
NR 747.41(3)
(3) Rating. The insurance coverage shall be provided by a firm that has an A.M. Best rating of at least “A-".
NR 747.41(4)
(4) Alternate mechanisms. A laboratory or drilling firm may request the department's approval of an alternate mechanism for meeting the requirement of the maximum deductible of $100,000 per claim. The department shall review the request and determine whether the mechanism meets the requirement of the rule.
NR 747.41 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94;
CR 04-058: renum. from Comm 47.415
Register February 2006 No. 602, eff. 5-1-06.
NR 747.42
NR 747.42 Field and financial audits. NR 747.42(1)
(1)
General. The department shall routinely investigate remediation sites to establish that the remediation is appropriate and that costs incurred reflect the remediation services and activities.
NR 747.42(2)
(2) Applicability. The department may conduct field and financial audits as deemed necessary in order to further the goals of the PECFA program. Activities which may warrant the conduct of a field or financial audit may include, but not be limited to, the following:
