Chapter NR 169

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.

NR 169.13(3)(a)30. 30. Air travel expenses.

NR 169.13(3)(a)31. 31. Expense charges for meals, lodging, travel or other personal expenses.

NR 169.13 Note Note: No travel costs of any kind will be reimbursed except for approved mobilization costs.

NR 169.13(3)(a)32. 32. Supplemental charges for expedited services, including expedited laboratory analysis, mail or parcel delivery service, unless the department approves those charges in advance.

NR 169.13(3)(a)33. 33. Contractor charges that are not based on services provided by the contractor and documented under s. NR 169.19.

NR 169.13(3)(a)34. 34. Costs for subcontractor service charges or markups.

NR 169.13(3)(a)35. 35. Costs that are incurred prior to August 1, 2005, that the department determines are unreasonable.

NR 169.13(3)(a)36. 36. Costs associated with the delivery of documents.

NR 169.13(3)(a)37. 37. Fees required by third parties to obtain samples, including municipal permits or access fees.

NR 169.13(3)(a)38. 38. Capitol equipment purchases that are not unique to the facility, such as general tools.

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.

NR 169.13 History History: CR 04-128: cr. Register July 2005 No. 595, eff. 8-1-05; CR 12-023: cr. (2) (f) 3., am. (3) (a) 6. Register October 2013 No. 694, eff. 11-1-13.

NR 169.15 NR 169.15 Site hazard categorization system.

NR 169.15(1) (1) The department project manager shall assign a preliminary high, medium, or low priority to the site.

NR 169.15(2) (2) To determine reimbursement priorities pursuant to s. NR 169.17, the department project manager shall assign a final high, medium, or low priority to the site after approving a complete site investigation report submitted to the department.

NR 169.15 History History: CR 04-128: cr. Register July 2005 No. 595, eff. 8-1-05; CR 12-023: renum. 169.15 to (1) and am., cr. (2) Register October 2013 No. 694, eff. 11-1-13.

NR 169.17 NR 169.17 Allocation of reimbursement assistance.

NR 169.17(1) (1) Fund allocation. The department shall allocate funding based on statutory spending authority and as provided under this section. The department shall also determine the amount of any unused funds at the end of each fiscal year which were previously allocated to immediate actions and may reallocate those funds as provided in sub. (2).

NR 169.17(2) (2) Classes of actions. Funding available for eligible costs shall be allocated among the following classes of actions. Costs submitted for reimbursement shall be classified as one of the following:

NR 169.17(2)(a) (a) Immediate actions. 9.7% of the funds collected each fiscal year shall be reserved to reimburse costs associated with immediate actions. In the fourth quarter of each fiscal year, the department may transfer all or part of the unused funds which were set aside to reimburse costs of immediate actions to the fund which reimburses site investigations or remedial actions under this subsection.

NR 169.17(2)(b) (b) Site investigations and remedial actions.

NR 169.17(2)(b)1. 1. Any funds not allocated under par. (a) shall be reserved to reimburse costs associated with site investigation and remedial actions. Funds available in this class shall be allocated as follows:

NR 169.17(2)(b)1.a. a. 25% to sites classified as high priority under s. NR 169.15.

NR 169.17(2)(b)1.b. b. 60% to sites classified as medium priority sites under s. NR 169.15.

NR 169.17(2)(b)1.c. c. 15% to sites prioritized as low priority sites under s. NR 169.15.

NR 169.17(2)(b)2. 2. The department may transfer unused funds between high, medium and low priority sites as identified in this subsection to meet application needs.

NR 169.17(3) (3) Reimbursement priority within classes.

NR 169.17(3)(a) (a) Immediate actions. Immediate actions shall be reimbursed based on the date on which the department receives the completed application.

NR 169.17(3)(b) (b) Site investigations and remedial actions. Site investigations and remedial actions shall be placed within one of 3 site hazard categories determined by the department in s. NR 169.15 and reimbursed within each site hazard category based on the date on which the department receives the completed application.

NR 169.17 History History: CR 04-128: cr. Register July 2005 No. 595, eff. 8-1-05.

NR 169.19 NR 169.19 Reimbursement applications.

NR 169.19(1) (1) Timing of applications. An eligible applicant shall submit an application within the dates required by s. 292.65 (8) (a), Stats.

NR 169.19 Note Note: Section 292.65 (8) (a), Stats., provides that an owner or operator may not submit an application if the owner or operator submits the notification of potential claim under sub. (4) (c) after August 30, 2008.

NR 169.19(2) (2) Contents of applications. An owner or operator who seeks reimbursement of response action costs shall complete and submit to the department all the following:

NR 169.19(2)(a) (a) An application form containing all the following:

NR 169.19 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 169.19(2)(a)1. 1. The owner or operator’s name and address and a statement indicating how the applicant qualifies as an owner or operator under s. NR 169.07.

NR 169.19(2)(a)2. 2. If an agent of the owner or operator is directing the response action, the name, address and phone number of the agent and a dated copy of the agency agreement.

NR 169.19(2)(a)3. 3. A statement indicating whether the owner or operator has applied or will apply to another department program or another government agency for reimbursement of response action costs incurred for the same facility.

NR 169.19(2)(a)4. 4. Information regarding multiple owner or operators including:

NR 169.19(2)(a)4.a. a. Names, addresses and phone numbers of all co–owners and all co–operators.

NR 169.19(2)(a)4.b. b. A certification that the owner or operator has made a reasonable effort to notify other owners or operators.

NR 169.19(2)(a)5. 5. Dry cleaner facility information including information on whether the facility is still operating or operable, pollution prevention measures implemented and information on the construction of the facility.

NR 169.19(2)(a)6. 6. Discharge information associated with the facility.

NR 169.19(2)(a)7. 7. Consultant information, including the contact name and business name.

NR 169.19(2)(a)8. 8. Insurance information, including a statement indicating whether any portion of the response action costs for which the owner or operator seeks reimbursement may be covered by insurance, or a statement from the owner’s or operator’s insurance company stating that the insurance company has denied the owner’s or operator’s claim for reimbursement of the response action costs

NR 169.19(2)(a)9. 9. Other relevant information requested by the department.

NR 169.19(2)(b) (b) A reimbursement cost summary form containing all the following:

NR 169.19 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 169.19(2)(b)1. 1. The total eligible response action costs for which the owner or operator seeks reimbursement from the department and a breakdown of those costs into the categories listed in par. (e).

NR 169.19(2)(b)2. 2. Other relevant information requested by the department.

NR 169.19(2)(c) (c) A map showing the town, range, section and quarter–quarter section location of the facility.

NR 169.19(2)(d) (d) An accurate legal description of the land parcel where the facility is located which corresponds to the most recent accurate parcel description filed with the register of deeds in the county where the land parcel is located.

NR 169.19(2)(e) (e) A cost detail worksheet form which lists and identifies each eligible response action cost for which the applicant seeks reimbursement from the department, indicates whether the response action cost was for an immediate action, interim remedial action, site investigation or remedial action, and allocates cost to one of the following categories: