Chapter NR 169

NR 169.09 NR 169.09 Eligible actions.

NR 169.09(1) (1) General. Eligible actions are those actions that comply with chs. NR 700 to 728, including immediate and interim actions, site investigations and remedial actions.

NR 169.09(1)(a) (a) Immediate and interim actions include those actions identified in ch. NR 708.

NR 169.09(1)(b) (b) Site investigations include those actions identified in ch. NR 716.

NR 169.09(1)(c) (c) Remedial actions include those actions that comply with the standards identified in chs. NR 722 and 724.

NR 169.09(2) (2) Pre-discovery activities.

NR 169.09(2)(a) (a) An eligible applicant may conduct site investigation scoping or equivalent activities before discovering that a release had occurred in order to document that a dry cleaning product release had occurred from the dry cleaning facility associated with the eligible applicant.

NR 169.09(2)(b) (b) Reimbursement of site investigation scoping or other equivalent pre–discovery activities shall be limited to those identified in s. NR 169.05 (27) and are exempt from the contracting and consulting provisions in s. NR 169.23.

NR 169.09(2)(c) (c) Costs for site investigation scoping are eligible site investigation costs if they meet all of the following requirements:

NR 169.09(2)(c)1. 1. They are limited to costs of investigating the discharge of a dry cleaning product from a former or current dry cleaning facility.

NR 169.09(2)(c)2. 2. They result in the documentation of a discharge and subsequent notification of that discharge pursuant to s. 292.11, Stats.

NR 169.09(2)(c)3. 3. The department deems the costs reasonable.

NR 169.09(2)(d) (d) Costs for site investigation scoping or other equivalent pre–discovery activities shall be considered site investigation costs and submitted with the site investigation reimbursement application. Only site investigation scoping or other equivalent pre–discovery actions that result in the documentation of a release of a dry cleaning product from a dry cleaning facility are eligible for reimbursement under this chapter.

NR 169.09(2)(e) (e) Eligible site investigation scoping costs up to $15,000 that are incurred by a third party may be included in an eligible applicant’s site investigation reimbursement application if they meet all the following requirements:

NR 169.09(2)(e)1. 1. The costs are approved by the department project manager.

NR 169.09(2)(e)2. 2. The activities for which the costs were incurred resulted in the initial discovery of a dry cleaning solvent release from a dry cleaning facility.

NR 169.09(2)(e)3. 3. The activities for which the costs were incurred meet the requirements of this section.

NR 169.09 Note Note: Section 292.65 (7) (b) 2. Stats., states eligible costs for an award under this section include reasonable and necessary costs, up to $15,000, incurred by a 3rd party in the discovery of a discharge of dry cleaning product from an eligible owner’s or operator’s dry cleaning facility before the eligible owner or operator discovered the discharge.

NR 169.09(2)(f) (f) All results of the site investigation scoping or other equivalent pre–discovery activities shall be made available to each consultant preparing a site investigation workplan under s. NR 169.23.

NR 169.09 Note Note: If departmental review of site investigation scoping or other equivalent pre–discovery activities is requested, the review will be subject to fees under ch. NR 749. If a release is documented, those fees are eligible expenses for the purpose of reimbursement.

NR 169.09 History History: CR 04-128: cr. Register July 2005 No. 595, eff. 8-1-05.

NR 169.11 NR 169.11 Requirements for reimbursement.

NR 169.11(1) (1) General requirements. Costs listed under s. NR 169.13 submitted by an eligible applicant are eligible for reimbursement as follows:

NR 169.11(1)(a) (a) Immediate actions. To receive reimbursement for costs associated with immediate actions, an eligible applicant shall do all the following:

NR 169.11(1)(a)1. 1. Report the discharge to the department as required by s. NR 706.05.

NR 169.11 Note Note: Section NR 706.05 provides that unless exempted under s. NR 706.07, persons who cause the discharge to the environment of a hazardous substance or who possess or control a hazardous substance which is discharged to the environment shall immediately notify the department of the discharge. The toll free hot–line for spill reporting is 1–800–943–0003.

NR 169.11(1)(a)2. 2. Conduct immediate action activities as required by ch. NR 706.

NR 169.11(1)(a)3. 3. Obtain and document concurrence from the department project manager before incurring eligible immediate action costs that exceed $10,000.

NR 169.11 Note Note: A non–emergency immediate action is an action in which the department does not require a responsible party to take further action under s. NR 708.09 once the immediate action is completed. If the department requires further action after a non–emergency immediate response action is taken, that action meets the definition of “interim action” in s. NR 700.03 (29) and is accordingly subject to the interim action requirements of this chapter.

NR 169.11(1)(a)4. 4. Apply for the program on a form developed by the department.

NR 169.11 Note Note: Forms are available at no charge from the remediation and redevelopment program in any department regional or central office or by contacting the department at [phone].

NR 169.11(1)(a)5. 5. Document to the department that the response meets the criteria for immediate action under s. NR 708.05 and that the response action was an appropriate response warranted by site conditions.

NR 169.11(1)(a)6. 6. Within 120 days after completing an immediate action, submit an application to the department as specified in s. NR 169.19 which documents all eligible actions and associated costs. An immediate action is complete when the immediate nature of the release has been adequately addressed. An immediate action that includes operation and maintenance of equipment is complete once the equipment is installed.

NR 169.11 Note Note: Section NR 708.05 (2) requires owners or operators who take emergency immediate actions to conduct any further response actions needed to restore the environment to the extent practicable unless the department determines that no further response is necessary in accordance with s. NR 708.09.

NR 169.11(1)(b) (b) Interim actions. To receive reimbursement from the department for costs associated with an interim action, an eligible applicant shall do all the following:

NR 169.11(1)(b)1. 1. Report the discharge to the department as required by s. NR 706.05.

NR 169.11 Note Note: Section NR 706.05 provides that unless exempted under s. NR 706.07, persons who cause the discharge to the environment of a hazardous substance or who possess or control a hazardous substance which is discharged to the environment shall immediately notify the department of the discharge. The toll–free hot–line for spill reporting is 1–800–943–0003.

NR 169.11(1)(b)2. 2. Submit to the department a completed potential claim notification form as required by s. 292.65 (4) (c), Stats.

NR 169.11 Note Note: Section 292.65 (4) (c), Stats., states that an owner or operator shall notify the department, before conducting a site investigation or any remedial action activity, of the potential for submitting an application for an award under this section. This does not apply to an owner or operator who began a site investigation or remedial action activity before October 14, 1997. Notification forms are available at no charge from the remediation and redevelopment program in any department regional or central office or by contacting the department at [phone].

NR 169.11(1)(b)3. 3. Document to the satisfaction of the department that the response meets the criteria of interim action in s. NR 708.11 and that immediate action is not necessary at the facility.

NR 169.11(1)(b)4. 4. Submit to the department for approval detailed information regarding the interim action being proposed including appropriate cost estimates for the proposed interim action and a schedule for conducting a ch. NR 716 site investigation.

NR 169.11 Note Note: Chapter NR 716 site investigation schedules will be negotiated between the department and applicant. The department may allow phased investigations based on factors such as the risk posed by the site, the anticipated effectiveness of the interim remedial action, the amount and quality of the preliminary site screening data, and financial considerations including the ability to pay for the response action and the availability of funds for reimbursement of response actions

NR 169.11 Note Note: Chapter NR 749 fees will not be required by the department for review of the interim action proposal for eligible dry cleaning facilities.

NR 169.11 Note Note: The department will use the information submitted under subds. 3. and 4. to classify the site’s priority for reimbursement under ss. NR 169.15 and 169.17

NR 169.11(1)(b)5. 5. Obtain departmental approval to undertake the interim action that is detailed as required by subd. 4.

NR 169.11 Note Note: The department may approve the action, deny the action or require that the eligible applicant obtain 3 bids for the cost of implementing the action. If the department requires an applicant to obtain bids for an interim action, the bids must be submitted to the department for approval.

NR 169.11(1)(b)6. 6. Implement the interim action in accordance with the proposal approved by the department.

NR 169.11(1)(b)7. 7. Sign a statement agreeing to comply with all applicable statutes and rules, including an agreement to continue to operate, monitor and maintain all interim remedial action equipment and systems until the department determines they are no longer needed as part of the remedial action.

NR 169.11(1)(b)8. 8. Within 120 days of completing the interim action, submit an application form developed by the department and specified in s. NR 169.19, which documents all eligible actions and associated costs. An interim action is completed when field installations are completed.

NR 169.11 Note Note: Forms are available at no charge from the remediation and redevelopment program in any department regional or central office or by contacting the department at [phone].

NR 169.11(1)(c) (c) Site investigations and remedial actions. To receive reimbursement from the department for costs associated with a site investigation and remedial action, an eligible applicant shall do all of the following:

NR 169.11(1)(c)1. 1. Report the discharge to the department as required by s. NR 706.05.

NR 169.11 Note Note: Section NR 706.05 provides that unless exempted under s. NR 706.07, persons who cause the discharge to the environment of a hazardous substance or who possess or control a hazardous substance which is discharged to the environment shall immediately notify the department of the discharge.

NR 169.11(1)(c)2. 2. Submit to the department a completed potential claim notification form, as required by s. 292.65 (4) (c), Stats.

NR 169.11 Note Note: Section 292.65 (4) (c), Stats., states that notification of a potential claim is not required for site investigations or remedial action activity begun before October 14, 1997. Notification forms are available at no charge from the remediation and redevelopment program in any department regional or central office or by contacting the department at [phone].

NR 169.11(1)(c)3. 3. Comply with the cost and contracting provisions in ss. NR 169.13 and 169.23.

NR 169.11(1)(c)4. 4. Solicit a minimum of 3 and maximum of 6 site investigation workplan bid proposals. As part of that solicitation, identify a date upon which bids are to be received, and keep all bids sealed until after that date.

NR 169.11(1)(c)5. 5. Submit to the department on a form provided by the department all site investigation workplan bids as required in s. NR 169.23 and obtain department approval for the selected workplan.

NR 169.11 Note Note: Schedules included in a ch. NR 716 workplan may include phased approaches for the activities and will be negotiated based on factors such as risk posed by the site, anticipated effectiveness of the interim remedial action, the amount and quality of the site investigation scoping data, the ability to pay for the response action, and the availability of funds for reimbursement of response actions.

NR 169.11 Note Note: No ch. NR 749 fees associated with the review of a site investigation workplan will be charged for review of workplans required in this chapter. The department will review workplans within 45 calendar days of their receipt. The department will approve the workplan, request revisions be made to the workplan prior to approval or deny the workplan.

NR 169.11 Note Note: Forms are available at no charge from the remediation and redevelopment program in any department regional or central office or by contacting the department at [phone].

NR 169.11(1)(c)6. 6. Except as provided in sub. (3), complete a site investigation in compliance with ch. NR 716, to determine the extent of environmental contamination by the dry cleaning product discharge before conducting a remedial action.

NR 169.11 Note Note: A ch. NR 716 site investigation is not considered complete until an approvable site investigation report is submitted to the department.

NR 169.11(1)(c)7. 7. Submit a site investigation report to the department for approval.

NR 169.11 Note Note: No ch. NR 749 fees associated with the review of the site investigation report will be charged under this chapter.

NR 169.11(1)(c)8. 8. Based on the findings in the site investigation report, the department shall classify the site under s. NR 169.15 to determine when reimbursement will be available.

NR 169.11(1)(c)9. 9. After receiving departmental approval for the site investigation report, submit a complete reimbursement application on a form developed by the department and specified in s. NR 169.19 which documents all eligible actions and associated costs. The owner or operator may submit an application for the reimbursement of site investigation costs prior to the submittal of the site investigation report. The minimum eligible reimbursement request shall be $15,000 and no more than 3 reimbursement requests, each accompanied by a summary of work completed, may be submitted prior to submittal of the site investigation report. Only one interim reimbursement request may be submitted during any fiscal year.

NR 169.11 Note Note: Forms are available at no charge on the DNR Web site (http://dnr.wi.gov/topic/Brownfields/Pubs.html) and from the remediation and redevelopment program in any department regional or central office.

NR 169.11(1)(c)10. 10. Solicit a minimum of 3 and maximum of 6 remedial action bid proposals. As part of that solicitation, identify a date upon which bids are to be received, and keep all bids sealed until after that date.

NR 169.11(1)(c)11. 11. Submit to the department for approval a minimum of 3 and a maximum of 6 bid proposals for remedial action consistent with ch. NR 722, including a technical and economic feasibility evaluation. The bid proposals shall be based on the site investigation report approved for the site and shall be submitted on a form provided by the department. All bids received shall be submitted to the department.

NR 169.11 Note Note: Section NR 169.23 (6) (a) requires the remedial action proposals included in these bids to evaluate as detailed in ch. NR 722 the technical and economic feasibility of each appropriate alternative for a site. Chapter NR 722 requires that each alternative considered, not just the proposed alternative, be evaluated for technical and economic feasibility.

NR 169.11 Note Note: Forms are available at no charge from the remediation and redevelopment program in any department regional or central office or by contacting the department at [phone].

NR 169.11(1)(c)12. 12. Obtain department approval for the selected bidder and remedial alternative.

NR 169.11(1)(c)13. 13. Conduct all remedial action activities required by chs. NR 700 to 728 and s. 292.65 (4) (j), Stats., and approved by the department in the bid document for the site.

NR 169.11 Note Note: Activities required by chs. NR 700 to 728 and s. 292.65 (4) (j), Stats., include:

NR 169.11 Note 1. Recovering any recoverable dry cleaning solvent from the environment.

NR 169.11 Note 2. Managing any residual solid or hazardous waste in a manner consistent with local, state and federal law.

NR 169.11 Note 3. Restoring groundwater according to the standards promulgated by the department under ss. 160.07 and 160.09, Stats.

NR 169.11(1)(c)14. 14. Sign a statement agreeing to comply with all applicable rules and regulations, including agreeing to continue to operate, monitor and maintain all remedial systems until the department determines they are no longer needed as part of the remedial action.

NR 169.11(1)(c)15. 15. Within 120 days of completing the remedial action submit a final reimbursement application as specified in s. NR 169.13 which documents all eligible actions and associated costs.

NR 169.11 Note Note: Forms are available at no charge from the remediation and redevelopment program in any department regional or central office or by contacting the department at [phone].

NR 169.11(2) (2) Pollution prevention requirements. Applicants shall implement the pollution prevention requirements in s. 292.65 (5), Stats., at their dry cleaning facilities before submitting a reimbursement application.

NR 169.11 Note Note: Section 292.65 (5), Stats., provides that: (a) 1. The owner or operator of a dry cleaning facility on which construction begins after October 14, 1997, is not eligible for an award under this section unless the owner or operator has implemented the enhanced pollution prevention measures described in par. (b).

NR 169.11 Note 2. The owner or operator of a dry cleaning facility on which construction began on or before October 14, 1997, is ineligible for an award under this section with respect to a discharge that occurs on or after the 91st day after the day on which the department issues a case closure letter with respect to an earlier discharge of dry cleaning solvent from the dry cleaning facility, unless the owner or operator has implemented the enhanced pollution prevention measures described in par. (b).

NR 169.11 Note (b) An owner or operator who is required to implement enhanced pollution prevention measures under par. (a) shall demonstrate all of the following:

NR 169.11 Note 1. That the owner or operator manages all wastes that are generated at the dry cleaning facility and that contain dry cleaning product as hazardous wastes in compliance with ch. 291, Stats., and 42 USC 6901 to 6991i.

NR 169.11 Note 2. That the dry cleaning facility does not discharge dry cleaning product or wastewater from dry cleaning machines into any sanitary sewer or septic tank or into the waters of this state.

NR 169.11 Note 3. That each machine or other piece of equipment in which dry cleaning product is used, or the entire area in which those machines or pieces of equipment are located, is surrounded by a containment dike or other containment structure that is able to contain any leak, spill, or other release of dry cleaning product from the machines or other pieces of equipment.

NR 169.11 Note 4. That the floor within any area surrounded by a dike or other containment structure under subd. 3. is sealed or is otherwise impervious to dry cleaning product.