Chapter NR 747

NR 747.41 History History: 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 747.42 NR 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)(a) (a) Complaints;

NR 747.42(2)(b) (b) High cost sites;

NR 747.42(2)(c) (c) Cases where retrofits are being undertaken;

NR 747.42(2)(d) (d) New construction activities;

NR 747.42(2)(e) (e) Receipt of additional information which may result in modifying the initial determination of eligibility;

NR 747.42(2)(f) (f) More than one occurrence on a specific site; and

NR 747.42(2)(g) (g) Sites having commingled plumes.

NR 747.42 Note Note: 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) (3) Maintenance of and access to records.

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 Note Note: 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 History History: 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.

subch. V of ch. NR 747 Subchapter V — Legal Issues

NR 747.50 NR 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 History History: 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 747.52 NR 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 747.52 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 04-058: am. Register February 2006 No. 602, eff. 5-1-06.

NR 747.53 NR 747.53 Appeals and hearings.

NR 747.53(1) (1) Appeals.

NR 747.53(1)(a) (a) General. A responsible party, agent, consultant or consulting firm may request a hearing with the department, as specified in s. 227.42, Stats., on any decision affecting that person’s legal rights except as specified in ss. NR 747.03, 747.355 (2) (c) 7. and (3) (a) and par. (b) 2.

NR 747.53(1)(b) (b) Appeal requirements.

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 Note Note: 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 Note Delivery address:
Wisconsin DNR
Bureau for Remediation & Redevelopment
101 S. Webster Street, 5th Floor
Madison, WI 53703

NR 747.53 Note Mailing 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)3. 3. Appeals of items identified as ineligible, as listed in s. NR 747.30 (2) or (3), 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) (2) Hearings.

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)(c) (c) Prehearing discovery. There shall be no prehearing discovery except as provided in s. 227.45 (7), Stats.

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 History History: 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 NR 747.54 Arbitration.

NR 747.54(1) (1) Application.

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) (b)

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.

NR 747.54(1)(c) (c) A request for arbitration shall be in writing signed by the claimant or their attorney, shall include the names and addresses of all parties, and shall be made after denial of costs submitted for reimbursement, but prior to commencement of a hearing under ch. 227, Stats.

NR 747.54(2) (2) Scope. Only the costs in the following categories may be the subject of arbitration under this section:

NR 747.54(2)(a) (a) Investigating a petroleum product discharge.

NR 747.54(2)(b) (b) Planning remedial action.

NR 747.54(2)(c) (c) Conducting remedial action activities.

NR 747.54(3) (3) Definitions.

NR 747.54(3)(a) (a) Deadlines. All time deadlines in this section, except in sub. (10) (e) 1., are specified in calendar days.

NR 747.54(3)(b) (b) Terms. Except where otherwise specified, the following terms are defined as follows for the purposes of this section:

NR 747.54(3)(b)1. 1. “Administrator” means the administrator of the environmental and regulatory services division of the department, or his or her designee.

NR 747.54(3)(b)2. 2. “Arbitrator” means a person appointed in accordance with s. 292.63 (6s), Stats., and governed by the provisions of this section.

NR 747.54 Note Note: Section 292.63 (6s) Stats., reads as follows: “Upon the request of a person who files an appeal of a decision of the department under this section, if the amount at issue is $100,000 or less, the appeal shall be heard by one or more individuals designated by the department to serve as arbitrator under rules promulgated for this purpose by the department. In such an arbitration, the arbitrator shall render a decision at the conclusion of the hearing, or within 5 business days after the conclusion of the hearing if the arbitrator determines that additional time is needed to review materials submitted during the hearing, affirming, modifying or rejecting the decision of the department. The arbitrator shall promptly file his or her decision with the department. The decision of the arbitrator is final and shall stand as the decision of the department. An arbitrator’s decision may not be cited as precedent in any other proceeding before the department or before any court. A decision under this subsection is subject to review under ss. 227.53 to 227.57 only on the ground that the decision was procured by corruption, fraud or undue means. The record of a proceeding under this subsection shall be transcribed as provided in s. 227.44 (8).”

NR 747.54(3)(b)3. 3. “Claim” means the amount sought by a claimant as remediation costs actually incurred by the claimant at a remediation site.

NR 747.54(3)(b)4. 4. “Ex parte communication” means any communication, written or oral, relating to the merits of an arbitration proceeding, between an arbitrator and any party or their agent, which was not originally filed or stated in the administrative record of the proceeding. Such communication is not ex parte communication if all parties to the proceeding have received prior written notice of the proposed communication and have been given the opportunity to be present and to participate therein.

NR 747.54(3)(b)5. 5. “Party” means the department and any person who has agreed, pursuant to s. 292.63 (6s), Stats., to submit to an arbitrator one or more issues arising from a denial of incurred costs that have been claimed for reimbursement by a claimant.

NR 747.54(4) (4) Appointment of arbitrator.

NR 747.54(4)(a) (a) The department shall establish and maintain a panel of environmental arbitrators.

NR 747.54(4)(b) (b) Within 10 days of receiving a request for arbitration, the administrator shall identify and submit simultaneously to all parties an identical list of 6 individuals chosen from the panel of arbitrators, whom the administrator believes will not be subject to disqualification because of circumstances likely to affect impartiality. Each party shall have 10 days from the date of receipt of the list to identify any individuals objected to, to rank the remaining individuals in the order of preference, and to return the list to the administrator. If a party does not return the list within the time specified, all individuals on the list are deemed acceptable to that party. From among the individuals whom the parties have indicated as acceptable, and, in accordance with the designated order of mutual preference, if any, the administrator shall appoint an arbitrator to serve. If the parties fail to mutually agree upon any of the individuals named, or if the appointed arbitrator is unable to serve, or if for any other reason the appointment cannot be made from the submitted lists, the administrator shall make the appointment from among the other members of the panel. In no event shall appointment of the arbitrator by the administrator take longer than 30 days from the filing of the request for arbitration. The administrator’s appointment notice to the arbitrator shall include the names and addresses of all of the parties, as provided in the request for arbitration.

NR 747.54(4)(c) (c) The arbitrator shall, within 5 days of receipt of his or her notice of appointment, file a signed acceptance of the case with the department and the claimant. The acceptance shall include a disclosure to the parties of any circumstances likely to affect impartiality, including any bias or any financial or personal interest in the result of the arbitration, or any past or present relationship with the parties or their counsel, or any past or present relationship with any known responsible party to which the claim may relate.

NR 747.54(4)(d) (d) If any appointed arbitrator should resign, die, withdraw, be disqualified, or otherwise be unable to perform the duties of the office, the administrator may fill the vacancy in accordance with the applicable provisions of this subsection, and the arbitration process shall be resumed.

NR 747.54(5) (5) Challenge procedures.

NR 747.54(5)(a) (a) If any party wishes to request disqualification of an arbitrator, that party shall notify the other parties in writing of that request and the basis therefor within 5 days of receipt of the information on which the request is based.

NR 747.54(5)(b) (b) The administrator shall make a determination on any request for disqualification of an arbitrator within 7 days after the department receives the request, and shall notify the parties in writing of the determination. This determination shall be within the sole discretion of the administrator, and that decision shall be final.

NR 747.54(6) (6) Ex parte communication.

NR 747.54(6)(a) (a) No party or agent of a party may make or knowingly cause to be made to the arbitrator an ex parte communication.

NR 747.54(6)(b) (b) The arbitrator may not make or knowingly cause to be made to any party or agent of a party an ex parte communication.

NR 747.54(6)(c) (c) The administrator may remove the arbitrator in any proceeding in which it is demonstrated to the administrator’s satisfaction that the arbitrator has engaged in prohibited ex parte communication to the prejudice of any party. If the arbitrator is removed, the procedures in sub. (4) (d) shall apply.

NR 747.54(6)(d) (d) Whenever an ex parte communication in violation of this subsection is received by or made known to the arbitrator, the arbitrator shall immediately notify in writing all parties to the proceeding of the circumstances and substance of the communication and may require the party who made the communication or caused the communication to be made, or the party whose representative made the communication or caused the communication to be made, to show cause why that party’s arguments or claim should not be denied, disregarded, or otherwise adversely affected on account of the violation.

NR 747.54(6)(e) (e) The prohibitions of this subsection apply upon appointment of the arbitrator and terminate on the date of the final decision.

NR 747.54(7) (7) Joint submittal.

NR 747.54(7)(a) (a) Within 10 days after receipt of the arbitrator’s acceptance under sub. (4) (c), the claimant and the department shall jointly submit to the arbitrator a summary of one or more issues arising from the denial by the department of incurred costs claimed for reimbursement concerning the site. The joint submittal shall be signed by the claimant or their attorney, and a representative of the department, and shall include all of the following:

NR 747.54(7)(a)1. 1. A description of the site and a brief summary of the actions taken at the site.

NR 747.54(7)(a)2. 2. A statement of the issues arising from the costs denied by the department in the claim, that are being submitted for resolution by arbitration.