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.
NR 169.25 Note(c) Disposition of funds. The net proceeds of the recovery under par. (b) shall be paid into the dry cleaner environmental response fund.
NR 169.25 NoteNote: Section 292.65 (10), Stats., provides that: (a) No common law liability, and no statutory liability that is provided in a statute other than s. 292.65, Stats., for damages resulting from a dry cleaning facility is affected by this section. Except as provided in par. (b), the authority power and remedies provided in this section are in addition to any authority, power or remedy provided in any statute other than this section or provided at common law. NR 169.25 Note(b) An award under this section is the exclusive method for the recovery of the amount of eligible costs equal to the amount of the award that may be issued under this section.
NR 169.25 Note(c) If a person conducts a remedial action activity for a discharge at a dry cleaning facility site, whether or not the person files an application under this section, the remedial action activity conducted and any application filed under this section are not evidence of liability or an admission of liability for any potential or actual environmental pollution.
NR 169.25(6)(6) Penalties. No person may knowingly make or cause to be made a false or misleading statement in any document submitted to the department under this chapter. Penalties for making the statements shall be assessed as indicated in s. 292.99 (1m) and (2), Stats. NR 169.25 HistoryHistory: CR 04-128: cr. Register July 2005 No. 595, eff. 8-1-05. NR 169.27NR 169.27 Administration of reimbursement awards. NR 169.27(1)(1) Records, retention and auditing. An owner or operator who receives reimbursement shall retain all records pertaining to the project for a period of 3 years after the date of final payment and, upon request, shall make the records available to the department. Records requests by the department shall allow at least 48 hours for the records to be made available by the owner or operator who receives reimbursement. NR 169.27(2)(a)(a) Decision of the department. Except as otherwise provided by law, the department shall decide any dispute regarding or arising under a reimbursement award, including disputes regarding decisions under s. NR 169.21 (1) (d) to (5). The department shall notify the reimbursement recipient of its decision in writing by personal service or by certified mail with return receipt requested. NR 169.27(2)(b)(b) Review of the decision. A decision of the department made pursuant to this subsection shall be final unless within 30 days from the date of the decision, the recipient serves the secretary by personal service or certified mail with return receipt requested with a written petition requesting an administrative hearing and specifically stating the disputed facts or law which warrant a modification or reversal of the decision. Petitions are deemed filed upon receipt by the department. Any review of a department decision filed pursuant to this paragraph shall be treated as a contested case and adjudicated in accordance with ch. 227, Stats., and ch. NR 2. NR 169.27(3)(a)(a) The department and an owner or operator who receives reimbursement may enter into an agreement to terminate the reimbursement award at any time under this subsection. The termination agreement shall establish the effective date of termination of the reimbursement, the basis for settlement of award termination costs, and the amount and date of payment of any sums due any party. NR 169.27(3)(b)(b) The department may terminate a reimbursement award in whole or in part, and require the owner or operator who received reimbursement to repay all or part of the reimbursement amount, if the department determines any of the following apply: NR 169.27(3)(b)1.1. There has been no substantial performance on the project by the owner or operator who received reimbursement. NR 169.27(3)(b)2.2. There is substantial evidence that reimbursement was obtained on the basis of inaccurate or erroneous information or by fraud. NR 169.27(3)(b)3.3. The owner or operator who received reimbursement has failed to comply with the provisions of this chapter. NR 169.27(4)(4) Enforcement. The department may impose any of the following sanctions upon an owner or operator who receives an award but fails to comply with the provisions of this chapter: NR 169.27(4)(a)(a) The department may terminate the reimbursement award in accordance with sub. (3). NR 169.27(4)(b)(b) The department may declare project costs directly related to the noncompliance ineligible for reimbursement funding. NR 169.27(4)(c)(c) The department may seek recovery of awards it paid under this chapter. NR 169.27 HistoryHistory: CR 04-128: cr. Register July 2005 No. 595, eff. 8-1-05. NR 169.29(1)(1) General. The department may approve a variance from any nonstatutory requirement of this chapter. In considering a variance request, the department shall take into account factors such as good cause, circumstances beyond the control of the owner or operator seeking reimbursement, whether the variance is essential to effect necessary actions or departmental objectives, and whether special circumstances make the variance in the best interest of the state. NR 169.29(2)(2) Request for variance. An owner or operator submitting an award application and requesting a variance shall submit a written request for a variance to the department as far in advance as the situation will permit. Each request shall contain all of the following: NR 169.29(2)(a)(a) The name of the person requesting the variance and the name and telephone number of a contact person familiar with the variance request. NR 169.29(2)(b)(b) An explanation of why the variance is needed, including the factual basis for the variance request and the specific provision of this chapter from which a variance is sought. NR 169.29(2)(c)(c) Within 30 days of receiving a request, the department shall mail the applicant for a variance a written decision stating the reasons or basis for the decision. NR 169.29 HistoryHistory: CR 04-128: cr. Register July 2005 No. 595, eff. 8-1-05. NR 169.31NR 169.31 Evaluation and termination of the program.
