NR 169.23NR 169.23 Consulting and contract services. NR 169.23(1)(1) Applicability. This section does not apply to hiring a consultant or contractor to design or implement immediate action activities or to conduct site investigation scoping activities. This section does not apply to interim actions unless the department requires bidding for an interim action based on the scope of the action or costs projected by the consultant proposing to conduct the interim action activity. NR 169.23(2)(a)(a) Interim actions. If required by the department, an owner or operator shall solicit a minimum of 3 and a maximum of 6 bid proposals from at least 3 consultants based on information contained in or equivalent to a site investigation scoping report or the initial phases of the site investigation. NR 169.23 NoteNote: This requirement does not imply that all sites will need to implement interim action activities. This provision is only for those sites where interim actions, as defined in ch. NR 708, are appropriate. NR 169.23(2)(b)(b) Site investigations. An owner or operator shall solicit and obtain a minimum of 3 and a maximum of 6 workplans from at least 3 consultants based on information contained in or equivalent to a site investigation scoping report. Site investigation workplans shall be consistent with s. NR 716.09 and include all activities required in ch. NR 716. NR 169.23(2)(c)(c) Remedial actions. An owner or operator shall solicit and obtain a minimum of 3 and a maximum of 6 bid proposals for the implementation of a remedy based on the findings of the ch. NR 716 site investigation and in compliance with chs. NR 722 and 724. NR 169.23(2)(d)(d) Submittal of workplan and remedial action bids. Each consultant shall submit a sealed bid to the owner or operator by the date specified by the owner or operator. The consultant shall also submit at the same time a copy of the sealed bid to the department project manager. NR 169.23(3)(a)(a) Each site investigation workplan or interim or remedial action proposal shall include a cost estimate for each service provided by the consultant or contractor and shall be submitted with a completed form as provided by the department. The department may require an owner or operator to obtain additional workplans or proposals if the department finds that existing workplans or proposals are unreasonable or inadequate. NR 169.23 NoteNote: 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 (608) 266-2111.
NR 169.23(3)(b)(b) The site investigation workplan or remedial action proposal shall include statements regarding the consultant’s ability to do all the following: NR 169.23(3)(b)1.1. Be fully informed about the project’s scope and required services, and have the experience and ability to analyze alternatives and design the most suitable response action consistent with technical and economic feasibility, environmental statutes and rules, restoration timeframes and the latest technical advances. NR 169.23(3)(b)2.2. Provide necessary staff and facilities for all phases of planning, investigation, design, construction and operation. NR 169.23(3)(b)3.3. Retain and confer with specialists on unusual matters and provide qualified technical reviewers to advise the owner on technical and regulatory matters and work toward planned remediation goals. NR 169.23(3)(b)4.4. Perform all services in an ethical, professional and timely manner. NR 169.23(3)(c)(c) Except as provided in par. (d), the department may not reimburse an eligible applicant for consulting service costs by the consultant selected to perform the service that exceed that consultant’s proposal for those services under par. (a) or (b). NR 169.23(3)(d)(d) The department may reimburse an eligible applicant for consulting or contract services not included in the consultant’s workplan or proposal under par. (a) or (b), or for additional hours or units of service beyond those included in the consultant workplan or proposal under par. (a) or (b), if all of the following apply: NR 169.23(3)(d)1.1. The consultant providing the additional services was selected by the qualification based selection process required under sub. (8) after evaluating the information required under pars. (a) and (b). NR 169.23(3)(d)2.2. The consultant bills for the additional services at the same or lower per–unit price at which the consultant agreed to provide equivalent services, if any, in the consultant’s initial proposal under par. (a) or (b). NR 169.23(3)(d)3.3. The consultant provides the eligible applicant with a cost estimate for the additional services before performing those services. The department may require the owner or operator to obtain competitive proposals for the additional services if the department finds that the cost estimate is unreasonable. NR 169.23(3)(d)4.4. The additional services do not involve the selection, design or installation of groundwater remediation. NR 169.23(3)(d)5.5. If the total cost of additional services exceeds the greater of $3,000 or 5% of the workplan or proposal cost, and before the additional work is performed, the owner or operator provides a change order and the cost estimate under subd. 3. to the department, and after obtaining department approval provides the consultant with written authorization to proceed with the additional services. NR 169.23(3)(e)(e) An owner or operator requesting reimbursement from the department shall keep copies of all workplans and proposals required under this subsection, and shall make those copies available to the department for inspection and copying upon request. The owner or operator shall keep copies of the bids and cost estimates for at least 3 years beyond the completion of the project. NR 169.23(4)(4) Interim action proposal estimate contents. Interim action activities included in the proposals shall include the need for and scope of the interim action, the implementation of the interim action, the design and documentation report at the conclusion of the action. Interim action proposals shall be consistent with s. NR 708.11. NR 169.23(5)(5) Site investigation workplan estimate contents. Every site investigation workplan under sub. (2) (b) shall include all the following: NR 169.23(5)(a)(a) A clear description and itemization of the consultant and contract services included in the workplan based on the site investigation scoping report or, if there is no scoping report, on a good faith estimate of the scope of the project. NR 169.23(5)(b)(b) A form provided by the department containing a description of the overall strategy for assessing the impacts from the site; a monitoring strategy to include parameters necessary to evaluate enhanced natural attenuation or monitored natural attenuation as a remedy, including a minimum of 4 rounds of groundwater sampling; and a discussion of the management of investigative derived waste. NR 169.23 NoteNote: 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 (608) 266-2111.
NR 169.23(5)(c)(c) A total cost estimate for all the consultant and contract services included in the workplan and a subtotal price for each of the component services itemized in the workplan. NR 169.23(5)(d)(d) All the following information related to every service priced on an hourly or per unit basis: NR 169.23(5)(d)2.2. A reasonable, good faith estimate of the number of hours or units of service to be provided. NR 169.23(5)(d)3.3. The total estimated price for the service, based on the estimate under subd. 2. NR 169.23(5)(d)4.4. The estimated date by which the consultant and contractor will perform their services. NR 169.23(6)(6) Remedial action proposal estimate content. Every remedial action proposal submitted under sub. (2) (c), and every cost estimate under sub. (3) (a) shall include all of the following information on a form provided by the department: NR 169.23(6)(a)(a) A ch. NR 722 evaluation of technical and economic feasibility for appropriate alternatives at a site, including an evaluation of natural attenuation and enhanced natural attenuation. NR 169.23(6)(b)(b) A description of the remedy proposed for the site. The description shall include an explanation of how that remedy will result in compliance with ch. NR 726 pertaining to case closure. NR 169.23(6)(c)(c) A clear description and itemization of the consultant and contract services included in the proposal. The description and itemization shall be based on the proposed remedy selected for the site. NR 169.23(6)(d)(d) A description and cost estimate for the implementation, analysis and interpretation of a pilot test for all active remediation systems, unless the consultant can justify to the department’s satisfaction that a pilot test is not necessary. NR 169.23(6)(e)(e) A total cost estimate for all the consultant and contract services included in the proposal and a subtotal price for each component service itemized in the proposal. NR 169.23(6)(f)(f) All the following information related to every service priced on an hourly or per unit basis: NR 169.23(6)(f)2.2. A reasonable, good faith estimate of the number of hours or units of service to be provided. NR 169.23(6)(f)3.3. The total estimated price for the service, based on the estimate under subd. 2. NR 169.23(6)(f)4.4. The estimated schedule by which the consultant and contractor will perform their services. NR 169.23(7)(7) Services priced on an hourly or per unit basis. NR 169.23(7)(a)(a) Cost estimates for the following services shall be priced on an hourly or per unit basis: NR 169.23(7)(a)4.4. Drilling, including at–depth soil sampling and well installation. NR 169.23(7)(b)(b) Cost estimates for professional or personal services, including engineering, hydrogeologic, field technician and general contracting services, shall be priced on an hourly basis and include a maximum total price for each service. Each proposal shall include a statement of professional qualifications for every person whose professional services are included in that proposal. NR 169.23(8)(8) Choice of consultant services. An owner or operator shall select the consultant following a qualification based selection system. Before entering into a contract with a consultant, the owner or operator shall submit to the department for approval all workplans or proposals received and the owner’s or operator’s justification for the selected workplan or proposal. NR 169.23(9)(a)(a) Consultants. In every proposal or cost estimate under sub. (2), the consultant shall certify all the following: NR 169.23(9)(a)1.1. That the consultant and contract services will comply with applicable requirements under this chapter and chs. NR 700 to 728. NR 169.23(9)(a)2.2. That upon request the consultant will make available to the department for inspection and copying all of the consultant’s documents and records related to the contract services. NR 169.23(9)(a)3.3. That the consultant did not prepare the bid in collusion with any other consultant submitting a bid on the site. NR 169.23(9)(b)1.1. Every proposal under this section shall include a certification of insurance from an agent licensed to do business in Wisconsin that certifies all of the following facts: NR 169.23(9)(b)1.a.a. The consultant maintains coverage for errors and omissions professional liability coverage, including pollution impairment liability, of no less than $1,000,000 per claim and a minimum of $1,000,000 in annual aggregate claims. NR 169.23(9)(b)1.c.c. If the policy is a claims made policy the consultant agrees to obtain that or a similar policy for a subsequent 3 years. NR 169.23(9)(b)1.d.d. The maximum deductible amount per claim of the policy that provides the coverage specified in subd. 1. a. NR 169.23(9)(b)1.e.e. The insurance company providing the coverage required by par. (b) has an A.M. Best rating of at least ”A-.” NR 169.23(9)(b)2.2. If the maximum deductible specified in subd. 1. d. exceeds $25,000 per claim, the consultant shall furnish proof of financial responsibility acceptable to the department for the amount of the deductible. NR 169.23(10)(10) Exemptions. The department may reimburse reasonable costs incurred for necessary contract services, regardless of compliance with subs. (2) to (6), if any of the following apply: NR 169.23(10)(a)(a) The contract service costs were incurred by the owner or operator pursuant to contracts made before February 1, 2000. NR 169.23(10)(b)(b) The owner or operator demonstrates to the department’s satisfaction that compliance with subs. (2) to (6) is not reasonably possible. NR 169.23(10)(c)(c) The cumulative contract service costs for that contractor for costs at this dry cleaning facility do not exceed the greater of $3,000 or 5% of the costs included in the approved workplan. NR 169.23 HistoryHistory: CR 04-128: cr. Register July 2005 No. 595, eff. 8-1-05; CR 12-023: am. (9) (b) 1. d. Register October 2013 No. 694, eff. 11-1-13. NR 169.25NR 169.25 Legal ramifications of awards. NR 169.25(1)(1) Contributory negligence. The department may not diminish or deny an award under this chapter as a result of negligence attributable to the applicant or any person who is entitled to submit an application, except as provided in s. 292.65 (8) (h), Stats. NR 169.25 NoteNote: Section 292.65 (8) (h), Stats., cross references s. 292.65 (8) (d) 3., Stats., which states that applications from applicants who were grossly negligent in maintaining the dry cleaning facility in question shall be denied. NR 169.25 NoteNote: Section 292.65 (8) (i), Stats., provides that the filing by an applicant with the department of an assignment of an award under this section to a person who loans money to the applicant for the purpose of conducting activities required under sub. (4) creates and perfects a lien in favor of the assignee in the proceeds of the award. The lien secures all principal, interest, fees, costs and expenses of the assignee related to the loan and has priority over any previously existing or subsequently created lien, assignment, security interest or other interest in the proceeds of the award. NR 169.25 NoteNote: Section 292.65 (8) (j), Stats., provides that: 1. If an owner or operator prepares and submits an application that includes ineligible costs that are identified by the department by rule, the department shall calculate the award by determining the amount that the award would otherwise be under pars. (e) and (f) based only on the eligible costs and then by reducing that amount by 50% of the ineligible costs identified by rule that are included in the application. NR 169.25 Note2. If a person other than an owner or operator prepares an application that is submitted by the owner or operator and that includes ineligible costs that are identified by rule, the person shall pay to the department an amount equal to 50% of the ineligible costs identified by rule that are included in the application. A person, other than an owner or operator, who prepares an application may not charge the owner or operator for any amount that the person is required to pay under this subdivision. Payments made under this subdivision shall be deposited in the dry cleaner environmental response fund.
NR 169.25 Note3m. If a person other than an owner or operator prepares a statement that is submitted by the owner or operator to obtain payment for costs incurred by a 3rd party under sub. (7) (b) and the statement includes ineligible costs, the person shall pay to the department an amount equal to 50% of the amount of ineligible costs included in the statement.
NR 169.25 Note4. If, prior to receiving an award under this section, an owner or operator receives payment from another person, including an insurance company, arising out of an application for payment of any eligible costs or receives a tax credit based on any eligible costs, the department may not reimburse the owner or operator any amount that exceeds the difference between the amount of the award calculated under s. 292.65 (8) (e), (f), and (j) 1. and 2., Stats., and the amount by which the payment exceeds the sum of the deductible and the amount by which the amount calculated under s. 292.65 (8) (e), Stats., exceeds the maximum award under s. 292.65 (8) (f), Stats. NR 169.25 NoteNote: Section 292.65 (9), Stats., provides that: (a) Right of action. A right of action under this section shall accrue to the state against an owner or operator only if the owner or operator submits a fraudulent application or does not meet the requirements under this section and if an award is issued under this section to the owner or operator for eligible costs under this section. NR 169.25 Note(b) Action to recover awards. The attorney general shall take appropriate actions to recover awards to which the state is entitled under par. (a). The department shall request that the attorney general take action if the department discovers a fraudulent application after an award is issued.
