NR 747.355 HistoryHistory: Cr. Register, December, 1998, No. 516, eff. 1-1-99; CR 04-058: am. (2) (c) (intro.), 2., and 4. to 8., cr. (2) (d) 3. to 7., (e), (3) (b) 2. and 3., renum. (3) (b) to be (3) (b) 1. and am. Register February 2006 No. 602, eff. 5-1-06; corrections in (2) (d) 3., (3) (b) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694. NR 747.36(1)(1) General. A responsible party may file a claim with the department for the reimbursement of an amount paid to third parties for personal injury to another individual or off-site property damage associated with a petroleum product discharge from an underground petroleum product storage tank system within the scope of this chapter. The existence of these claims shall be made known to the department, by the responsible party, no later than 30 calendar days from the date that the responsible party knew or could have reasonably been expected to have known of the occurrence of the injury or personal property loss. Rules established by the office of the commissioner of insurance, as specified in s. Ins 6.35, concerning ineligible costs for third-party claims, shall apply. NR 747.36(2)(2) Third-party compensation for underground storage tanks. Costs incurred from environmental pollution and remediation actions, including compensation to third parties for property damage and individual bodily injury, may be deemed eligible costs as specified in s. NR 747.30 (1). NR 747.36 NoteNote: Liabilities which are excluded from coverage in liability insurance policies for bodily injury and liabilities which are excluded in liability insurance policies for property damage, for the purpose of this chapter, are defined by the state of Wisconsin commissioner of insurance, as specified in s. Ins 6.35, as required in s. 292.63 (1m), Stats. NR 747.36 NoteNote: If a person conducts a remedial action activity for a discharge from a petroleum product storage tank system or home oil tank system, whether or not the person files a claim under this chapter, the claim and remedial action activity conducted are not evidence of liability or an admission of liability for any potential or actual environmental pollution, as specified in s. 292.63 (7) (b), Stats. NR 747.36(3)(3) Intervention in third-party claims. The owner or operator of an underground petroleum product storage system eligible for an award under the scope of this chapter, shall notify the department in writing of any action by a third party against the owner or operator for compensation. The department may intervene in any third-party actions against an owner or operator of an underground petroleum product storage tank system for compensation for bodily injury or property damage. The department of justice may assist the department in this intervention. NR 747.36(4)(4) Third-party compensation for aboveground storage tank systems. Third-party damages are not a reimbursable expense if the damage is the result of a discharge from an aboveground petroleum product storage system. NR 747.36(5)(a)(a) Third-party personal injury. The department may establish a peer review adjudicator panel to review third-party personal injury reimbursement claims resulting from a discharge from an underground petroleum product system under the scope of this chapter. The review panel shall make a monetary determination for reimbursement based upon reasonable health care service costs and other computation methods established by the department. NR 747.36(5)(b)(b) Peer review adjudicator panel. The panel may make a recommendation to the department for an award from the fund to compensate the third party for personal injury or property damage. The department shall review the recommendation and make a decision regarding an award amount under the program. NR 747.36(5)(c)(c) Third-party property claims. For third-party claims associated with the removal of property items such as, but not limited to, blacktop and cement, the depreciated value of the property may be reimbursed. The basis of the value of the property shall be included in the claim. Full replacement costs may not be reimbursed by the fund. NR 747.36(6)(a)(a) A responsible party may include the reimbursement for personal injury or property damage costs on a claim for an award within the scope of this chapter. Reimbursement of a claim shall be based upon a showing that the cost was caused by the petroleum product discharge and that the amount claimed is reasonable. NR 747.36(6)(b)(b) If third-party claims exceed the maximum allowed under this chapter for the applicable type of underground petroleum product storage tank system, costs shall be reimbursed in the following order: NR 747.36(6)(b)1.1. Eligible costs of on-site and off-site remediation and replacement of drinking water wells; NR 747.37NR 747.37 Recovery of awards. Sale of remedial equipment or supplies shall comply with s. 292.63 (5) (a), Stats. NR 747.37 NoteNote: Section 292.63 (5) (a), Stats., reads as follows: “If a person who received an award under this section sells equipment or supplies that were eligible costs for which the award was issued, the person shall pay the proceeds of the sale to the department. The proceeds shall be paid into the petroleum inspection fund.” NR 747.40NR 747.40 Reimbursement and credentials. Remedial consulting services and activities performed by individuals and firms who do not have the applicable credentials under ss. SPS 305.80 and 305.81 to participate in the PECFA program may not be reimbursed under the scope of this chapter unless the department determines that denying the reimbursement would conflict with achieving the goals of the PECFA program. NR 747.41NR 747.41 Laboratories and drilling firms. NR 747.41(1)(a)(a) As of March 1, 1994, all laboratories performing work under the PECFA program shall obtain and maintain errors and omissions (professional liability) coverage of no less than $1,000,000 per claim, $1,000,000 annual aggregate and a deductible of no more than $100,000 per claim. NR 747.41(1)(b)(b) As of March 1, 1994, all drilling firms performing work under the PECFA program shall obtain and maintain general liability coverage, including pollution impairment liability, of no less than $1,000,000 per claim, $1,000,000 annual aggregate and a deductible of no more than $100,000 per claim. NR 747.41(2)(2) Coverage. The insurance obtained by laboratory and drilling firms shall cover work performed under PECFA on or after March 1, 1994. For all laboratory and drilling firms included in a claim, a certificate or certificates verifying the existence of the insurance coverage as specified in sub. (1), shall be submitted with the PECFA claim. NR 747.41(3)(3) Rating. The insurance coverage shall be provided by a firm that has an A.M. Best rating of at least “A-”. NR 747.41(4)(4) Alternate mechanisms. A laboratory or drilling firm may request the department’s approval of an alternate mechanism for meeting the requirement of the maximum deductible of $100,000 per claim. The department shall review the request and determine whether the mechanism meets the requirement of the rule. NR 747.41 HistoryHistory: Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 04-058: renum. from Comm 47.415 Register February 2006 No. 602, eff. 5-1-06. NR 747.42NR 747.42 Field and financial audits. NR 747.42(1)(1) General. The department shall routinely investigate remediation sites to establish that the remediation is appropriate and that costs incurred reflect the remediation services and activities. NR 747.42(2)(2) Applicability. The department may conduct field and financial audits as deemed necessary in order to further the goals of the PECFA program. Activities which may warrant the conduct of a field or financial audit may include, but not be limited to, the following: NR 747.42(2)(e)(e) Receipt of additional information which may result in modifying the initial determination of eligibility; NR 747.42 NoteNote: Defrauding the PECFA program may result in revocation or suspension of credentials issued under ch. SPS 305, and criminal prosecutions under chs. 939 and 943, Stats. NR 747.42(3)(a)(a) General. All consultants and consulting firms registered to participate, all organizations and individuals, including but not limited to service providers and others who perform remedial action services, all owners, operators, and persons owning home oil tank systems who file or attempt to file a claim under the PECFA program shall maintain records relevant to a claim for 6 years after claim submittal and make available upon request of the department, all financial and work records deemed by the department as necessary to support or investigate a claim or attempted claim. NR 747.42(3)(b)(b) Penalties. Penalties for violations of this section shall be established in accordance with s. 292.63 (10), Stats. NR 747.42 NoteNote: Section 292.63 (10), Stats., reads as follows: “PENALTIES. (a) Any owner or operator, person owning a home oil tank system or service provider who fails to maintain a record as required by rules promulgated under sub. (9) (a) may be required to forfeit not more than $2000. Each day of continued violation constitutes a separate offense. NR 747.42 Note(b) Any owner or operator, person owning a home oil tank system or service provider who intentionally destroys a document that is relevant to a claim for reimbursement under this section is guilty of a Class G felony.”
NR 747.42(3)(c)(c) Notification of work performed. The department may, at its request, require consultants and consulting firms registered to participation and all organizations and individuals who perform remedial action services and all owners, operators and persons owning home oil tank systems to notify the department no less than 10 calendar days in advance of any work being performed at a site or sites. NR 747.42(3)(d)(d) Parallel sampling requirement. At the request of the department, consultants or firms registered to participate or organizations or individuals who perform remedial action services shall, as directed by the department, take soil or groundwater samples and submit these samples to a laboratory specified by the department. The cost of preparing and submitting these samples shall be an eligible cost to the PECFA program independent of any cost cap or cost estimate. The laboratory reports, for requested samples, shall be sent to the department directly from the specified laboratory. The cost of the laboratory analysis shall be paid by the owner and submitted as part of the PECFA claim. NR 747.42 HistoryHistory: Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 04-058: am. (2) (g) and (3) (a), r. (3) (b), renum. (3) (c) to (e) to be (3) (b) to (d) and am. (3) (b) Register February 2006 No. 602, eff. 5-1-06; correction in (3) (b) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694. NR 747.50NR 747.50 Notifying the department of real estate transactions. NR 747.50(1)(1) Property transfer or lease. The owner or operator or person owning a home oil tank system shall notify the department of any real estate transaction affecting the ownership or operation of a remediation site. NR 747.50(2)(2) Real estate sales agreement or lease affecting responsibility for the remediation. The sales agreement or a lease for a property being transferred or leased prior to the completion of a remediation shall identify the party or parties responsible for the completion of the remediation, responsible for the payment of costs and eligible to receive PECFA proceeds. The party or parties eligible to receive the PECFA award shall submit a signed copy of the sales agreement or lease, a form W-9, and a release from any previous assignment of award under s. NR 747.15, with the next claim. NR 747.50 HistoryHistory: Cr. Register, February, 1994, No. 458, eff. 3-1-94; correction made under s. 13.93 (2m) (b) 1., Stats., Register, December, 1998, No. 516; CR 04-058: am. Register February 2006 No. 602, eff. 5-1-06; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694. NR 747.52NR 747.52 Dispute resolution procedures. NR 747.52(1)(1) Any person, including, but not limited to, owners, operators, persons owning home oil tank systems and their agents may submit a written complaint to the department regarding a consultant, consulting firm or other service provider. NR 747.52(2)(2) The department may investigate consultants, consulting firms or other service providers on its own initiative or upon the receipt of a complaint. The department may conduct an investigation and make a determination regarding a complaint as soon as practicable following the receipt of the complaint. The department shall take appropriate action based on its determination. If it is determined that no further action is warranted or authorized, the department shall notify the persons affected. NR 747.53(1)(b)1.1. All appeals pursuant to this chapter shall be in writing and shall be received by the department no later than 30 calendar days after the date of the decision being appealed. Appeals received more than 30 days after the date of the decision being appealed shall be dismissed. For purposes of this section, appeals received after 4:30 p.m. shall be considered received on the next business day. NR 747.53 NoteNote: A claimant or an attorney representing the claimant may request an administrative hearing to review this action by delivering, mailing, or faxing a written request for a hearing to:
NR 747.53 NoteDelivery address:
Wisconsin DNR
Bureau for Remediation & Redevelopment
101 S. Webster Street, 5th Floor
Madison, WI 53703
NR 747.53 NoteMailing address:
Wisconsin DNR
Bureau for Remediation & Redevelopment
P.O. Box 7921
Madison, WI 53707-7921
NR 747.53(1)(b)2.2. An appeal shall be signed by the person whose legal rights are affected by the decision being appealed or an attorney representing such person. Any appeal filed by a person other than the person whose legal rights are affected by the decision being appealed or an attorney representing that affected person shall be dismissed. NR 747.53(1)(b)4.4. The written appeal shall list every reason the department’s decision is incorrect and shall identify every issue to be considered in the hearing. Issues not raised in the written appeal under this subdivision are considered to be waived and shall be dismissed. NR 747.53(2)(a)(a) General. All hearings shall be conducted in accordance with these rules and ch. 227, Stats. NR 747.53(2)(b)(b) Settlement agreement prior to hearing. If the department and the affected party are able to reach agreement on disposition of an appeal prior to a hearing, the following actions shall occur: NR 747.53(2)(b)1.1. The settlement agreement shall be transmitted in writing to the administrative law judge designated by the secretary of the department. NR 747.53(2)(b)2.2. The settlement agreement shall be binding upon the parties when signed by both parties and returned to the department. NR 747.53(2)(b)3.3. The settlement agreement shall be considered a joint motion by the parties to dismiss the appeal its entirety or to dismiss such portions of the appeal as may be encompassed by the terms of the settlement agreement. NR 747.53(2)(d)(d) Witness fees. Witness fees and mileage of witnesses subpoenaed on behalf of the department shall be paid at the rate prescribed for witnesses in circuit court. NR 747.53(2)(e)(e) Location of hearings. All hearings shall be held in Madison, Wisconsin at a location determined by the department. Telephone testimony of individual witnesses and telephone hearings may be held at the discretion of the person designated by the secretary as hearing officer. NR 747.53(2)(f)(f) Hearing transcripts. All hearings shall be electronically recorded. Any party may request a copy of the electronic recording. A transcript of the recorded hearing shall be prepared upon request at the expense of the party requesting the transcript. Copies of transcripts prepared under this section shall be provided to the other party or parties upon payment of the actual cost of copying or obtaining a copy of the transcript. The department may require payment in advance. A transcript may be provided at the department’s expense to a party who demonstrates impecuniousness or financial need if that party has filed a petition for judicial review. Where the department contracts with a court reporting firm for the preparation of transcripts, the fees charged for transcription and copying shall be equal to the fees charged to the department by the court reporting firm. NR 747.53 HistoryHistory: Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 04-058: am. Register February 2006 No. 602, eff. 5-1-06; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register February 2006 No. 602; correction in (1) (a), (b) 3. made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; corrections in (1) (a), (b) 3. made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694. NR 747.54(1)(a)(a) If a claimant who files an appeal under s. NR 747.53 requests use of arbitration and if the amount at issue is $100,000 or less, the appeal shall be processed under this section. NR 747.54(1)(b)1.1. A request for arbitration shall be considered as a withdrawal of the appeal filed regarding the subject of that arbitration and precludes the claimant from going forward with an administrative appeal regarding the same issues under s. NR 747.53. NR 747.54(1)(b)2.2. Proceeding to an appeal hearing under s. NR 747.53 precludes the claimant from filing an arbitration request regarding the same issues.
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