Chapter NR 747

NR 747.33(2) (2) General.

NR 747.33(2)(a) (a) Consulting firm selection.

NR 747.33(2)(a)1. 1. An owner or operator shall select a PECFA consulting firm, as so registered under s. SPS 305.80, to conduct all site investigation and remedial action activities, and shall execute a written contract with that firm.

NR 747.33(2)(a)2. 2. The services of the selected consulting firm shall be limited to providing the consulting services or scientific evaluations necessary to conduct an environmental response. The consulting firm and any company or consultant not independent of the consulting firm or project consultants are prohibited from providing any of the commodity services required in the remediation.

NR 747.33(2)(b) (b) Purchase of commodity services..

NR 747.33(2)(b)1. 1. All commodity services which include, but are not limited to, soil borings, monitoring-well construction, laboratory analysis, excavation and trucking shall be obtained through a competitive bid process. A minimum of 3 bids are required to be obtained and the lowest cost service provider shall be selected. An employee of a commodity service provider may not participate in the preparation of bid documents or other requirements of the bid process, except for providing technical material, if the employee’s firm is a bidder.

NR 747.33(2)(b)2. 2. Consulting firms may elect to bid laboratory services on a calendar-year basis in order to obtain volume discounts and reduce the number of bids that shall be completed for each remediation. In completing the competitive bid process, the consulting firm shall obtain a minimum of 3 written bids from qualified firms that respond to the specifications and estimated volume of work provided by the consulting firm. Only PECFA-eligible laboratory work shall be included in the analysis to determine the lowest cost service provider. The lowest bid shall be accepted. All discounts, rebates and savings shall be reflected in the PECFA claim.

NR 747.33(2)(b)3. 3. The analysis of laboratory tests for passive or active bio-remediation and the performance of pump or pilot tests may be accomplished by either consultants or commodity providers. If these services are obtained by a consulting firm, as part of their consulting service, then the bidding of this service shall not be required.

NR 747.33(2)(b)4. 4. An owner or operator may appeal to the department to obtain approval to select other than the lowest cost commodity service provider. The department may approve an appeal if it determines that the use of another service provider will further the goals of the program.

NR 747.33(2)(c) (c) Remediation alternative.

NR 747.33(2)(c)1. 1. The owner or operator shall select the lowest cost remediation alternative that will result in a closed remedial action. The responsible party may select a higher cost alternative if he or she certifies to the department in writing that the additional costs will not be claimed for PECFA reimbursement.

NR 747.33(2)(c)2. 2. A higher cost remediation alternative may be allowed by the department if it determines that the alternative would further the goals of the program.

NR 747.33(3) (3) Remediation. For sites for which a remedial alternative was received by the department before April 21, 1998, the following shall apply:

NR 747.33(3)(a) (a) The estimated cost for the selected remediation alternative contained in the remedial action plan shall provide a separate dollar amount for consulting services and for commodity items. The estimated costs for these items shall be submitted to the department as part of the comparison of remedial alternatives or, if the submittal of the alternatives is not required as specified in s. NR 747.335 (3) (c), prior to the start of the remedial activities.

NR 747.33(3)(b) (b) A dollar amount approved by the department shall establish the maximum reimbursable amount for consulting services during the remediation.

NR 747.33(3)(c) (c) The cost detail for the selected remediation alternative shall establish the total estimated cost for the remediation up to receiving approval as a closed remedial action. The estimate may be used to establish a maximum reimbursable amount. If the estimated consulting or commodity costs are established as maximum reimbursable amounts, and one or both will be exceeded, the consultant shall immediately notify in writing the claimant and the department of the anticipated actual cost.

NR 747.33(3)(d) (d) If it is determined that the consulting or commodity services may not be completed within the original estimate, the owner or operator and the consultant shall provide a written account, to the department, of the additional work to be performed in order to prove the need for additional funding. Failure to obtain written approval of the additional costs by providing justification acceptable to the department shall constitute grounds for disallowing the additional expenses. Cost guidelines, as published by the department, may be used as one factor in determining if an approval for additional work is warranted.

NR 747.33(4) (4) Commodity items requiring competitive bidding. The following items shall be competitively bid. All bids shall be in units standard to the industry.

NR 747.33(4)(a) (a) Excavation of petroleum-contaminated soils;

NR 747.33(4)(b) (b) Trucking of petroleum-contaminated soils or backfill material;

NR 747.33(4)(c) (c) Thermal treatment of petroleum-contaminated soils;

NR 747.33(4)(d) (d) Laboratory services including mobile labs;

NR 747.33(4)(e) (e) Backfill material;

NR 747.33(4)(f) (f) Drilling and installing monitoring wells;

NR 747.33(4)(g) (g) Soil borings;

NR 747.33(4)(h) (h) Surveying if the service requires a registered land surveyor; and

NR 747.33(4)(i) (i) Other non-consulting services.

NR 747.33(5) (5) Commodity bundles. The owner or operator may combine individual commodity items into one bid. These bundles of commodities shall be bid by at least 3 service providers and the lowest cost service provider shall be selected.

NR 747.33(6) (6) Exemptions.

NR 747.33(6)(a) (a) Commodity items with a purchase price of $1,000 or less shall be exempt from the competitive bid requirement. The exclusion from commodity bidding may not be used if a service is to be used multiple times and the cumulative cost exceeds $1,000.

NR 747.33(6)(b) (b)

NR 747.33(6)(b)1. 1. The department may exempt specific services from the competitive commodity bid process if the department determines that the conduct of the bid proposal process is unlikely to further the remediation process or the goals of the program.

NR 747.33(6)(b)2. 2. Written department approval shall be received prior to incurring costs for services that are exempted under subd. 1., except where a subsequent department waiver of the approval requirement would further the goals or objectives of the program.

NR 747.33 Note Note: As established in s. NR 747.30 (2) (m) and (i), the department will not reimburse costs, including interest cost, for services exempted under subd. 1., if the costs are incurred prior to the department approval required under subd. 2., and the approval requirement is not subsequently waived.

NR 747.33(6)(c) (c) The competitive commodity bidding required under subs. (2) (b) and (4) is not required where reimbursement amounts are determined either by the usual and customary cost schedule established under s. NR 747.325, or by the public bidding process in subch. VI.

NR 747.33(6)(d) (d) The prohibition in sub. (2) (a) 2. against consultants or their associates providing commodity services does not apply where reimbursement amounts are determined either by the usual and customary cost schedule established under s. NR 747.325, or by the public bidding process in subch. VI.

NR 747.33(7) (7) Documentation. The owner or operator shall maintain the documents and data used in the competitive bid and selection process. These records shall be maintained and provided to the department if requested as part of the claim review or audit processes.

NR 747.33 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; r. and recr. (intro.) to (2), r. (3) and (4), renum. (5) to (8) to be (3) to (6) and am. (5) (a), Register, December, 1998, No. 516, eff. 1-1-99; CR 04-058: renum. (intro.) and (1) to (6) to be (1) to (7) and am. (2) (a) and (6) (b), cr. (6) (c) and (d) Register February 2006 No. 602, eff. 5-1-06; correction in (2) (a) 1., (3) (a), (6) (c), (d) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; corrections in (2), (3) (a), (6) (c), (d) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 747.335 NR 747.335 Site investigation and remedial action plan development cap.

NR 747.335(1) (1) General. Site investigations which were not started as of January 15, 1993, and for which a remedial alternative was received by the department before April 21, 1998, shall conform to this section.

NR 747.335(2) (2) Maximum allowable cost. The maximum allowable cost for a site investigation and the development of a remedial action plan shall be no more than $40,000, excluding interest, feasibility testing, and interim action costs, unless approved under par. (a).

NR 747.335(2)(a) (a) If the investigation will exceed $40,000, the responsible party or its agent, shall contact the department in writing and provide an estimate of additional work and funding required and obtain the department’s approval. If the additional approval is not obtained, costs above the $40,000 level will not be reimbursed.

NR 747.335(2)(b) (b) The consultant is responsible for monitoring the costs incurred in the investigation and remedial plan development and identifying that the $40,000 maximum may be exceeded. The consultant shall notify the owner, in writing, at the earliest point at which the consultant may know, or may have been reasonably expected to know, that the maximum allowable cost may be exceeded and that the approval of the department shall be obtained before any costs above $40,000 will be reimbursed by the department. The notification to the owner shall be made before the owner has incurred liabilities above the $40,000 maximum.

NR 747.335(3) (3) Consideration of alternatives.

NR 747.335(3)(a) (a) The remedial action plan developed for the site shall include a consideration of at least 3 alternatives, one of which shall be passive bio-remediation with long-term monitoring. The consideration of alternatives shall include a basic comparison of costs and the recommended alternative shall have a detailed cost estimate. If passive bio-remediation with long-term monitoring is feasible but not the recommended alternative, a clear rationale shall be provided as to why this alternative is not acceptable. Costs of long-term monitoring, or operation and maintenance shall be included in the comparison of costs in considering the alternatives.

NR 747.335(3)(b) (b) If the consideration of the passive bio-remediation or monitoring alternative shall be excluded because of site characteristics, the alternative shall be replaced by consideration of another alternative. If an alternative is substituted for the passive bio-remediation or monitoring alternative, the reason for this change shall be documented in the analysis.

NR 747.335(3)(c) (c)

NR 747.335(3)(c)1. 1. The comparison of alternatives shall be a concise document written so that the responsible party and the department may easily compare alternatives. Only alternatives which are reasonably expected to be approved may be included in the comparison. The comparison of alternatives shall be submitted to the department if the proposed alternative is greater than $60,000. The comparison submitted to the department shall not include the full remedial action plan, unless requested by the department.

NR 747.335(3)(c)2. 2. If the comparison document is determined by the department to be excessive or non-approvable alternatives are included, the department may require that the comparison be revised and resubmitted.

NR 747.335(4) (4) Start of investigation. An investigation shall be considered started if, after confirmation of a contamination is obtained, additional soil borings, soil sampling or monitoring-well construction have begun. In addition, the work on the site shall have an element of continuity. If work on a site stops for a period of 2 years or more, the site shall then fall under s. NR 747.335 (2) and (3) or 747.337 depending on whether a remedial alternative was received by the department as of April 20, 1998.

NR 747.335 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; r. and recr. (1), am. (3) (c) 1. and (4), Register, December, 1998, No. 516, eff. 1-1-99; CR 04-058: am. (3) (c) 1. Register February 2006 No. 602, eff. 5-1-06; correction in (4) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; correction in (4) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 747.337 NR 747.337 Site investigation and remedial action.

NR 747.337(1) (1) General. Sites for which site investigations were not started as of January 15, 1993, and for which a remedial alternative has not been received by the department as of April 20, 1998, shall conform to this section. The scope of the site investigation shall include determining the presence of the environmental factors specified in sub. (3) (a).

NR 747.337(2) (2) Maximum allowable cost.

NR 747.337(2)(a) (a) The maximum allowable cost for a site investigation and the development of a remedial action plan shall be no more than $20,000, excluding interest and interim action costs, unless approved under par. (b).

NR 747.337(2)(b) (b) If the investigation will exceed $20,000, either the claimant, their agent or the consultant shall contact the department in writing and provide an estimate of additional work and funding required, and obtain the department’s approval.

NR 747.337(2)(c) (c) The consultant is responsible for monitoring the costs incurred in the investigation and remedial action plan development and notifying the department prior to exceeding the $20,000 maximum. The consultant shall also notify the claimant, in writing, at the earliest point at which the consultant may know, or may have been reasonably expected to know, that the maximum allowable cost may be exceeded. The written approval of the department shall be obtained before incurring any costs above $20,000. The notification to the owner shall be made before the owner has incurred liabilities above the $20,000 maximum

NR 747.337 Note Note: As established in s. NR 747.30 (2) (n) and (i), the department will not reimburse costs, including interest costs, above the $20,000 limit in this subsection if they are incurred prior to either providing the notices that are required in par. (c), or obtaining the approval which is required in par. (b).

NR 747.337(2)(d) (d) If interim actions are performed during the course of an investigation or prior to the approval of a remedial action plan, costs above $5000, excluding interest, shall not be reimbursed. The department shall be informed prior to the implementation of any interim action.

NR 747.337(3) (3) Environmental factors.

NR 747.337(3)(a) (a) Environmental factors. Consultants shall determine the presence of any of the following environmental factors:

NR 747.337(3)(a)1. 1. Documented expansion of plume margin.

NR 747.337(3)(a)2. 2. Verified contaminant concentrations in a private or public potable well that exceeds the preventive action limit established under ch. 160, Stats.

NR 747.337(3)(a)3. 3. Contamination within bedrock or within 1 meter of bedrock.

NR 747.337(3)(a)4. 4. Petroleum product that is not in the dissolved phase is present with a thickness of .01 feet or more, and verified by more than one sampling event.

NR 747.337(3)(a)5. 5. Documented contamination discharges to a surface water or wetland.

NR 747.337(3)(b) (b) Presence of environmental factors. Consultants for sites that exhibit one or more environmental factors shall complete an analysis of remedial alternatives and prepare a remedial action plan. The analysis shall identify the lowest cost remedial strategy that will address the environmental factor and the remediation of the site. Included within the action plan shall be a cost detail providing separate dollar amounts for consulting and commodity activities. The cost detail shall provide the total cost, excluding interest but including all closure costs, for the remediation up to approval as a closed remedial action. The remedial action plan, cost detail, information on any interim actions conducted during the site investigation, and a separate report providing the information detailed in s. NR 716.15, and including an estimate of total contaminant mass, shall be submitted to the department and approval of the cost detail received before conducting any remedial action for which reimbursement will be claimed under the PECFA fund.

NR 747.337(3)(c) (c) Absence of environmental factor. If no environmental factors are identified during or after a site investigation, the consultant will develop an analysis of remedial alternatives and prepare a remedial action plan utilizing a non-active treatment approach. The analysis shall identify the lowest cost remedial strategy that will address the remediation of the site. Included within the analysis shall be a cost detail providing separate dollar amounts for consulting and commodity activities. The cost detail shall provide the total cost, excluding interest but including all closure costs, for the remediation up to approval as a closed remedial action. The remedial action plan, cost detail, and a separate report providing the information detailed in s. NR 716.15, and including an estimate of total contaminant mass, shall be submitted to the department and approval of the cost detail received before conducting any remedial action for which reimbursement will be claimed under the PECFA fund. The alternative proposed may include only the use of the following:

NR 747.337(3)(c)1. 1. Non-active source control, which may include soil excavation.

NR 747.337(3)(c)2. 2. Development and remediation to site specific residual contamination levels.

NR 747.337(3)(c)3. 3. Monitoring to evaluate the potential for remediation by natural attenuation.

NR 747.337(3)(c)4. 4. Remediation by natural attenuation.

NR 747.337(3)(c)5. 5. Monitoring.

NR 747.337(3)(c)6. 6. Institutional controls and site restrictions.

NR 747.337(3)(c)7. 7. Other non-active remedial approaches.

NR 747.337(3)(d) (d) Additional controls. Any alternative proposed to the department shall identify whether it assumes or includes the use of any institutional controls, groundwater use restrictions, deed notices or other restrictions or notifications.

NR 747.337(4) (4) Cost caps for occurrences that are not subject to public bidding. For an occurrence that is not subject to the public bidding process in s. NR 747.68 due to a waiver issued under s. NR 747.63 (1), cost caps shall be established as prescribed in s. 292.63 (3) (cs), Stats.

NR 747.337 Note Note: Section 292.63 (3) (cs), Stats., reads as follows: “1. The department shall review the remedial action plan for a site and shall determine the least costly method of complying with par. (c) 3. and with enforcement standards. The department shall notify the owner or operator of its determination of the least costly method and shall notify the owner or operator that reimbursement for remedial action under this section is limited to the amount necessary to implement that method.

NR 747.337 Note 3. In making determinations under subd. 1., the department shall determine whether natural attenuation will achieve compliance with par. (c) 3. and with enforcement standards.

NR 747.337 Note 4. The department may review and modify an amount established under subd. 1. if the department determines that new circumstances, including newly discovered contamination at a site, warrant those actions.

NR 747.337(6) (6) Claimant options.

NR 747.337(6)(a) (a) After receiving an approval of a remedial action plan from the department, a claimant may elect to either implement the alternative or to select another alternative. If the claimant elects to implement a higher cost remedial strategy, the claimant shall notify the department in writing of the intent to use a higher cost alternative. The notification shall include the statement that the claimant agrees that the department approved alternative establishes the maximum reimbursable amount for consulting and commodity services under the fund and that additional costs for the occurrence, excluding interest, will not be submitted to the fund.

NR 747.337(6)(b) (b) The department may elect to approve reimbursement for a higher cost remedial strategy if it furthers the objectives of the program.

NR 747.337 History History: Cr. Register, December, 1998, No. 516, eff. 1-1-99; CR 04-058: am. (2) (a) to (c), r. (4) and (5), cr. (4) Register February 2006 No. 602, eff. 5-1-06; correction in (4) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; corrections in (4) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 747.338 NR 747.338 Review of existing sites.

NR 747.338(1) (1) General. The department may review the remedial performance and costs associated with any existing sites. As part of the review, the department may elect to do any or all of the following:

NR 747.338(1)(a) (a) Deny any or all funding, after July 1, 1998, if a claimant failed to carry out site recommendations developed by the department in its “PECFA Efficiency Project.”

NR 747.338 Note Note: “PECFA Efficiency Project” refers to a study conducted by the department.

NR 747.338(1)(b) (b) Deny any or all funding if a claimant fails to provide information required by the department as part of a review of existing sites.