Chapter NR 169

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.

NR 169.11 Note 5. That any perchloroethylene delivered to the dry cleaning facility is delivered by means of a closed, direct–coupled delivery system.

NR 169.11 Note (c) The owner or operator of a dry cleaning facility is not eligible for an award under this section unless the owner or operator has implemented the following enhanced pollution prevention measures:

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 any perchloroethylene delivered to the dry cleaning facility is delivered by means of a closed, direct–coupled delivery system.

NR 169.11(3) (3) Exceptions. Owners and operators are excepted from certain requirements as provided in s. 292.65 (4) (g) and (h), Stats.

NR 169.11 Note Note: Section 292.65 (4) (g), Stats., provides that an owner or operator is not required to complete an investigation or prepare a remedial action plan before conducting an immediate action activity if the department determines that an immediate action is necessary per ch. NR 708. Section 292.65 (4) (h), Stats., provides that an owner or operator is not required to complete an investigation or prepare a remedial action plan before conducting an interim action activity if the department determines that an interim action is necessary per ch. NR 708.

NR 169.11 History History: CR 04-128: cr. Register July 2005 No. 595, eff. 8-1-05; CR 12-023: am. (1) (c) 9. Register October 2013 No. 694, eff. 11-1-13.

NR 169.13 NR 169.13 Awards.

NR 169.13(1) (1) Maximum award amount. Awards may not exceed the maximums imposed by s. 292.65 (8) (f), Stats.

NR 169.13 Note Note: Section 292.65 (8) (f), Stats., provides that an award to reimburse costs of immediate actions, site investigations and cleanup at a single facility may not exceed $500,000.

NR 169.13(2) (2) Eligible costs.

NR 169.13(2)(a) (a) General. Eligible costs are those allowed under s. 292.65 (7), Stats.

NR 169.13 Note Note: Section 292.65 (7) (a), Stats., provides that eligible costs include reasonable and necessary costs incurred for the following items only:

NR 169.13 Note 1. Removal of dry cleaning solvents from surface waters, groundwater or soil.

NR 169.13 Note 2. Investigation and assessment of contamination caused by a dry cleaning solvent discharge from a dry cleaning facility.

NR 169.13 Note 3. Preparation of remedial action plans.

NR 169.13 Note 4. Removal of contaminated soils.

NR 169.13 Note 5. Soil and groundwater treatment and disposal.

NR 169.13 Note 6. Environmental monitoring.

NR 169.13 Note 7. Laboratory services.

NR 169.13 Note 8. Maintenance of equipment for dry cleaning solvent recovery performed as part of remedial action activities.

NR 169.13 Note 9. Restoration or replacement of a private or public potable water supply.

NR 169.13 Note 10. Restoration of environmental quality.

NR 169.13 Note 11. Contractor costs for remedial action activities.

NR 169.13 Note 12. Inspection and supervision.

NR 169.13 Note 14. Other costs identified by the department as reasonable and necessary for proper investigation, remedial action planning and remedial action activities to meet the requirements of s. 292.11, Stats.

NR 169.13 Note Note: Costs incurred after October 14, 1997 and before February 1, 2000 will not be denied for failure to conform with the bidding provisions in this chapter, but will be reviewed and evaluated for reasonableness under this section.

NR 169.13 Note Note: Equipment purchased to remediate environmental contamination belongs to applicant when the remediation is complete and is not property of the department.

NR 169.13(2)(b) (b) Site investigation scoping. Costs for site investigation scoping are eligible costs if they are limited to the scoping of discharges of dry cleaning products from former or current dry cleaning facilities, they result in the documentation of a discharge and subsequent notification of that discharge, per s. 292.11, Stats., and the department deems them reasonable. The results, including data, from that scoping shall be made available to all consultants from whom workplans are requested as part of the bidding process.

NR 169.13(2)(c) (c) Site investigation workplan. Costs for preparation of a site investigation workplan by the consultant who is awarded the contract are eligible costs, if the department determines that they are reasonable.

NR 169.13(2)(d) (d) Bid proposal costs. Costs paid to the consultant who is awarded the contract for preparation of a remedial action bid proposal, including costs to analyze the economic and technical feasibility of a selected remedy are eligible costs if the department determines that they are reasonable.

NR 169.13(2)(e) (e) Costs limitation. Reimbursement of eligible costs for remedial actions will be limited to the costs identified for the lowest cost alternative approved by the department.

NR 169.13 Note Note: Eligible applicants may conduct a more costly remedy, but reimbursement will be limited to the maximum identified for the lowest cost acceptable alternative approved for the site. Criteria and requirements in ch. NR 726 determine whether a site may be closed.

NR 169.13(2)(f) (f) Other reasonable and necessary costs. Reasonable and necessary costs under s. 292.65 (7) (a) 14., Stats., include:

NR 169.13(2)(f)1. 1. Actual costs for equipment, supplies or services that are used exclusively for the response action. The department may reimburse an owner or operator who buys equipment used exclusively for the response action the net cost (purchase cost less salvage value) of the equipment as determined by the department, but not to exceed the reasonable cost of renting the equipment.

NR 169.13(2)(f)2. 2. Normal employee wages, salaries, expenses or fringe benefits allocated to hours that the employees of the owner or operator worked on a response action.

NR 169.13(2)(f)3. 3. Costs that do not exceed $15,000 that the department determines are integral to the response action for dry cleaning solvent discharged from a dry cleaning facility and are incurred for any of the following purposes:

NR 169.13(2)(f)3.a. a. To remove existing structures, fixtures, and building components in order to access and investigate, treat, or remove contaminated soil or water.

NR 169.13(2)(f)3.b. b. To reinstall existing structures, fixtures, and building components.

NR 169.13(2)(f)3.c. c. To replace existing building components destroyed or damaged beyond reuse by removal. Existing building components shall be salvaged and reused to the extent practicable, but existing building components destroyed or damaged beyond reuse by removal may be replaced by building components of comparable or lesser value than the value of the destroyed or damaged components before removal.

NR 169.13 Note Note: Building components include windows, siding, and interior and exterior concrete, asphalt, walls, and doorways.

NR 169.13 Note Note: All other costs to construct, repair, replace, improve, relocate, or demolish a structure, fixture, or building component are ineligible costs under sub. (3).

NR 169.13(3) (3) Ineligible costs.

NR 169.13(3)(a) (a) General costs. Notwithstanding sub. (1), costs which the department has determined ineligible for reimbursement under s. 292.65 (7) (c), Stats., include, but are not limited to, the following:

NR 169.13(3)(a)1. 1. Costs incurred before October 14, 1997.

NR 169.13(3)(a)2. 2. Costs of retrofitting or replacing dry cleaning equipment.

NR 169.13(3)(a)3. 3. Indirect costs charged by a contractor, unless those costs are allocated to the contract according to a reasonable cost allocation formula that the contractor uses for similar contracts.

NR 169.13(3)(a)4. 4. An owner or operator’s indirect costs, including indirect costs for equipment, supplies or services.

NR 169.13 Note Note: This paragraph prohibits allocating indirect costs to the investigation and cleanup of a dry cleaning site. But direct costs for equipment, supplies, services, or employee services may be eligible for reimbursement pursuant to s. NR 169.13 (2) (f).

NR 169.13(3)(a)5. 5. Costs for the time that the owner or operator, or any officer of the owner or operator, spends planning or implementing a response action.

NR 169.13 Note Note: This does not prohibit the department from reimbursing normal employee wages, salaries, expenses or other fringe benefits allocated to hours that employees who are not owners, operators or officers spend implementing a response action.

NR 169.13(3)(a)6. 6. Costs to construct, repair, replace, improve, relocate, or demolish any building or fixture except as allowed by sub. (2) (f) 3.

NR 169.13(3)(a)7. 7. Loss or impairment of property values or other assets.

NR 169.13(3)(a)8. 8. Loss or impairment of revenue or income.

NR 169.13(3)(a)9. 9. Attorney fees or other legal costs.

NR 169.13(3)(a)10. 10. Costs of relocating residents or business operations.

NR 169.13(3)(a)11. 11. Costs of aesthetic or other improvements that are not essential to a response action, except for restorative grading and filling costs authorized under sub. (2) (a), and under s. 292.65 (7) (a) 14., Stats.

NR 169.13(3)(a)12. 12. Costs reimbursed from another source. If, after being reimbursed by the department for any cost, a owner or operator is reimbursed for the same cost from another source, the owner or operator shall promptly notify the department and repay any duplicate reimbursement, unless otherwise directed in s. 292.65, Stats.

NR 169.13 Note Note: Section 292.65 (4) (m), Stats., requires that an owner or operator shall notify the department of any application, including any insurance claim, made to obtain funds to cover eligible costs or to obtain a tax credit based on eligible costs, the status of the application, and, if the owner or operator has received any funds or any tax credit arising from the application, the amount of the funds or tax credit received. Section. 292.65 (7) (c) 4., Stats., authorizes the department to exclude costs that the department determines are unreasonable or unnecessary.

NR 169.13(3)(a)13. 13. Other costs that the department determined to be associated with, but not integral to, the investigation and remediation of a dry cleaning solvent discharge from a dry cleaning facility.

NR 169.13(3)(a)14. 14. Costs that the department determines to be unreasonable or unnecessary to carry out the response activities specified in the bid proposal.

NR 169.13(3)(a)15. 15. Costs for investigation or remedial action conducted at sites located outside this state.

NR 169.13(3)(a)16. 16. Financing costs, including interest and loan origination fees.

NR 169.13(3)(a)17. 17. Liability claims or judgments.

NR 169.13(3)(a)18. 18. Costs incurred by any federal, state or local government entity for services they routinely provide.

NR 169.13(3)(a)19. 19. Investigation or remedial action costs incurred by any federal, state or local government entity unless that entity is an eligible applicant or agent.

NR 169.13(3)(a)20. 20. Costs incurred by a federal, state or local government entity for overseeing investigation or remedial action costs.

NR 169.13(3)(a)21. 21. Costs for a contractor’s services that exceed the contractor’s bid price for those services, except as provided under s. NR 169.23.

NR 169.13(3)(a)22. 22. Costs that the owner or operator has not yet paid, or for which the owner or operator may later receive a discount or rebate.

NR 169.13(3)(a)23. 23. Costs not documented by an invoice and a canceled check, or other conclusive proof of payment by the eligible applicant applying for reimbursement.

NR 169.13(3)(a)24. 24. Costs to investigate or repair environmental contamination involving substances that are not dry cleaning products. If a response action under this chapter is combined with the investigation or repair of environmental contamination involving substances that are not dry cleaning products, the department may reimburse a portion of the combined project costs based on a reasonable cost allocation formula approved by the department. If an owner or operator also submits a reimbursement claim to another governmental agency for any combination project, the cost allocation formula shall be approved by the department and that other agency.

NR 169.13(3)(a)25. 25. Costs to analyze environmental samples for substances that are not dry cleaning products, except that the department may reimburse costs for the analysis of environmental parameters if that analysis is needed to design or implement a response action.

NR 169.13(3)(a)26. 26. Costs to analyze environmental samples for dry cleaning products that could not reasonably have been discharged at the facility.

NR 169.13(3)(a)27. 27. Costs for environmental audits, evaluation or appraisals, other than those needed for the effective planning and implementation of a response action.

NR 169.13 Note Note: Costs for site investigation scoping or equivalent assessments are only eligible for reimbursements if a release of dry cleaning product is found during those assessments. Costs for site investigation scoping may be reimbursed if they meet the eligible cost criteria for response actions in s. 292.65, Stats., and this chapter and are incorporated into reports submitted as requirements for this program.

NR 169.13(3)(a)28. 28. Costs incurred by an owner or operator because of a contractor’s breach of contract.

NR 169.13(3)(a)29. 29. Costs to prepare an application under s. NR 169.19, to contest an application decision under s. NR 169.27 or to consult with the department on the application.