Chapter NR 747

NR 747.54(8)(b)2.b. b. There was a discharge from a petroleum product storage system of an eligible petroleum product at the site at which the remedial response action was taken.

NR 747.54(8)(b)3. 3. A complete list of the specific costs which were denied by the department which the claimant has requested be the subject of the arbitration proceeding.

NR 747.54(8)(b)4. 4. To the extent such information is available, the names and addresses of all identified owners for the site, and the volume of the tanks and nature of the petroleum products that contributed to the contamination.

NR 747.54(8)(b)5. 5. Any other statement or documentation that the claimant deems necessary to support its claim.

NR 747.54(8)(c) (c) If any issue concerning the adequacy of the claimant’s remedial action has been submitted for resolution or may arise during the arbitrator’s determination of the dollar amount of response costs recoverable by the claimant, the statement shall be accompanied with an index of any documents that formed the basis for the selection of the remedial action taken at the site, and a copy of all indexed documents.

NR 747.54(8)(d) (d) Within 14 days after receipt of the claimant’s written statement, the department shall submit to the arbitrator 2 copies of an answer and shall serve a copy of the answer upon all other parties. The answer shall include all of the following:

NR 747.54(8)(d)1. 1. A brief statement of the department’s basis for denying the costs at issue that are the subject of the arbitration.

NR 747.54(8)(d)2. 2. Any objections to the statement of facts in the claimant’s written statement, and, if so, a counterstatement of facts.

NR 747.54(8)(d)3. 3. A description of the evidence in support of the department’s denial of the costs at issue and any supporting documentation thereof.

NR 747.54(8)(d)4. 4. Any objections to the remedial action taken by the claimant at the site based upon any documents that formed the basis for the selection of the remedial action.

NR 747.54(8)(d)5. 5. Any other documentation that the department deems relevant, including documentation that the department deems necessary to support its denial of costs submitted by the claimant for reimbursement.

NR 747.54(9) (9) Jurisdiction of arbitrator.

NR 747.54(9)(a) (a) In accordance with the procedures established by this section, the arbitrator is authorized to arbitrate one or more issues arising from the denial by the department of incurred costs in a claim for reimbursement.

NR 747.54(9)(b) (b) The arbitrator’s authority is to render a decision regarding the denial of incurred costs claimed and is limited to only the issues submitted for resolution by the parties in the joint submittal for arbitration. Any issues arising from the denial of incurred costs claimed that are not submitted for resolution shall be deemed to be waived and shall not be raised in any action seeking enforcement of the decision for the purpose of overturning or otherwise challenging the final decision, except as provided in subs. (11) (b) and (c).

NR 747.54(9)(c) (c) If the issue of the dollar amount of incurred costs that were denied by the department has been submitted for resolution, the arbitrator shall determine, pursuant to par. (d), the dollar amount recoverable by the claimant and shall award the amount of such costs to the claimant.

NR 747.54(9)(d) (d) The arbitrator shall uphold the department’s denial of costs in full or in part unless the claimant can establish that all or part of such costs were either of the following:

NR 747.54(9)(d)1. 1. Eligible costs based upon the department’s list of eligible costs in s. NR 747.30, or the schedule of usual and customary costs established by the department under s. NR 747.325 for the period in which the costs were incurred.

NR 747.54(9)(d)2. 2. Clearly not excessive and clearly necessary, taking into account the circumstances of the remedial action and relative to the usual and customary cost schedule established by the department under s. NR 747.325 for the time period in which the costs were actually incurred.

NR 747.54(9)(e) (e) If the arbitrator upholds the department’s denial only in part, the arbitrator shall award to the claimant only those costs incurred in connection with the portions of the remedial action that were upheld along with any associated interest that was denied, less any remaining deductible and subject to occurrence maximums.

NR 747.54(9)(f) (f) The standard of review to be applied by the arbitrator to the department’s reimbursement denial decision shall be whether the decision was arbitrary and capricious, or otherwise not in accordance with law.

NR 747.54(10) (10) Arbitration decision.

NR 747.54(10)(a) (a) Within 5 days after receipt of the statement and answer submitted under sub. (8), the arbitrator shall review the submittals and request any needed additional information from the claimant or the department.

NR 747.54(10)(b) (b) Any information requested under par. (a) shall be submitted to the arbitrator and served upon all other parties, within 5 days after receiving the request.

NR 747.54(10)(c) (c) Within 10 days after receipt of either the submittals under sub. (8) or the information requested under par. (a), whichever is applicable, the arbitrator shall render a proposed decision and shall mail the proposal to the parties, unless the parties have settled the dispute prior to the decision.

NR 747.54(10)(d) (d) Within 10 days after receipt of the proposed decision, a party may submit additional information to the arbitrator, and if done, shall serve a copy of the additional information to all other parties.

NR 747.54(10)(e) (e)

NR 747.54(10)(e)1. 1. Within 5 business days after receipt of any additional information submitted under par. (d), the arbitrator shall render a final decision.

NR 747.54(10)(e)2. 2. The final decision shall be in writing and shall be signed by the arbitrator. It shall be limited in accordance with the arbitrator’s jurisdiction as established in sub. (9), and shall, if such issues have been jointly submitted by the parties for resolution, contain the arbitrator’s determination of the dollar amount of costs denied by the department, if any, to be awarded to the claimant.

NR 747.54(10)(f) (f) The parties shall accept as legal delivery of the final decision the placing in the United States mail of a true copy of the final decision, sent by certified mail, return receipt requested, addressed to each party’s last known address or each party’s attorney’s last known address, or by personal service.

NR 747.54(10)(g) (g) Notice of the final decision shall be published by the department on its Web site. The notice shall include the name and location of the site concerned, the names of the parties to the proceeding, and a brief summary of the final decision.

NR 747.54(11) (11) Effect and enforcement of final decision.

NR 747.54(11)(a) (a) The final decision shall be binding and conclusive upon the parties as to the issues that were jointly submitted by the parties for resolution and addressed in the decision.

NR 747.54 Note Note: As established in s. NR 747.54 (1) (b) 1., an arbitrator’s decision may not be appealed under s. NR 747.53.

NR 747.54(11)(b) (b) As established in s. 292.63 (6s), Stats., the final decision under this section is subject to review under ss. 227.53 to 227.57, Stats., only on the ground that the decision was procured by corruption, fraud, or undue means.

NR 747.54(11)(c) (c) Except as necessary to show fraud, misconduct, partiality, or excess of jurisdiction or authority, in any enforcement action, a party may not raise, for the purpose of overturning or otherwise challenging the final decision, issues arising in the claim that were not submitted for resolution by arbitration.

NR 747.54(11)(d) (d) Neither the initiation of an arbitration proceeding nor the rendering of a final decision shall preclude or otherwise affect the ability of the State of Wisconsin, including the department, to do any of the following:

NR 747.54(11)(d)1. 1. Seek injunctive relief or enforcement against the claimant for further remedial action at the site concerned pursuant to s. 101.144, Stats., or any other applicable statute, regulation, or legal theory.

NR 747.54 Note Note: Section 101.144, Stats., was repealed by 2013 Wis. Act 20.

NR 747.54(11)(d)2. 2. Seek any relief for any violation of criminal law from any claimant, consultant, commodity provider, contractor, or subcontractor.

NR 747.54(11)(d)3. 3. Seek any relief, civil or criminal, from any person not a party to the arbitration proceeding under s. 292.63, Stats., or any other applicable statute, regulation, or legal theory.

NR 747.54(12) (12) Fees and expenses.

NR 747.54(12)(a) (a) In any arbitration conducted, all fees and expenses of the arbitrator shall be divided equally among all parties. All other expenses shall be borne by the party incurring them.

NR 747.54(12)(b) (b) The department shall establish the per diem fee for the arbitrator prior to the commencement of any activities by the arbitrator.

NR 747.54(13) (13) Miscellaneous provisions.

NR 747.54(13)(a) (a) Any party who proceeds with arbitration knowing that any provision or requirement of this section has not been complied with, and who fails to object thereto either orally or in writing in a timely manner, shall be deemed to have waived the right to object.

NR 747.54(13)(b) (b) The original of any joint submittal for arbitration, modification to any joint submittal for arbitration, pleading, letter, or other document filed in the proceeding, except for exhibits and other documentary evidence, shall be signed by the filing party or by his or her attorney.

NR 747.54(13)(c) (c) All papers associated with the proceeding that are served by a party to an opposing party shall be served by personal service, or by United States first class mail, or by United States certified mail, return receipt requested, addressed to the party’s attorney; or if the party is not represented by an attorney or the attorney cannot be located, to the last known address of the party. All papers associated with the proceeding that are served by the arbitrator or by the department shall be served by personal service or by United States certified mail, return receipt requested, addressed to the party’s attorney; or if the party is not represented by an attorney or the attorney cannot be located, to the last known address of the party.

NR 747.54(13)(d) (d) If any provision of this section, or the application of any provision of this section to any person or circumstance is held invalid, the application of that provision to other persons or circumstances and the remainder of this section shall not be affected thereby.

NR 747.54 History History: CR 04-058: cr. Register February 2006 No. 602, eff. 5-1-06; correction in (1) (a), (b) 1., 2., (8) (b) 2. a., (9) (d) 1., 2. made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; corrections in (1) (a), (b) 1., 2., (3) (b) 2., 5., (8) (b) 2. a., (9) (d) 1., 2., (11) (b), (d) 3. made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

subch. VI of ch. NR 747 Subchapter VI — Competitive Public Bidding

NR 747.60 NR 747.60 Selection of an investigation consulting firm and notification to the department.

NR 747.60(1) (1) Initial contract.

NR 747.60(1)(a) (a) No later than 14 days after a PECFA-registered consulting firm executes or terminates a written contract with a responsible party for investigating a discharge from a petroleum product storage system, the consulting firm shall submit to the department a notification form prescribed by the department.

NR 747.60 Note Note: See s. NR 747.71 for special requirements for existing sites.

NR 747.60 Note Note: The contracts referenced in this section are required by s. NR 747.33 (2) (a) 1. As established in s. NR 747.30 (2) (L) and (i), the department will not reimburse costs, including interest costs, for any site investigation work performed outside of these contracts.

NR 747.60(1)(b) (b) After receipt of a termination notice under par. (a), the department shall notify the responsible party of the requirements in sub. (2) for a subsequent contract and for ineligibility of interest costs.

NR 747.60(2) (2) Subsequent contracts.

NR 747.60(2)(a) (a) If a contract under sub. (1) is terminated before completion of the investigation, and the responsible party does not, within 60 days after the date of the notice in sub. (1) (b), perform either of the actions specified in pars. (b) and (c), any interest costs relating to the work under the terminated contract, which accrue between the termination date and the beginning of a new contract, may not be reimbursed by the department.

NR 747.60(2)(b) (b) Execute another written contract with a PECFA-registered consulting firm for completing the investigation.

NR 747.60(2)(c) (c) Obtain written approval from the department for additional time to comply with par. (b).

NR 747.60 History History: CR 04-058: cr. Register February 2006 No. 602, eff. 5-1-06.

NR 747.61 NR 747.61 Management during a site investigation.

NR 747.61(1) (1) Consulting firm’s responsibilities for the investigation. The consulting firm selected to perform the investigation shall be responsible for planning and completing all investigation activities in the most cost-effective manner possible, drawing professional engineering and geologic conclusions from data collected during the investigation, and submitting any consultant reports required by this subchapter or s. 292.63, Stats.

NR 747.61(2) (2) Department’s responsibilities during the investigation. The department shall be responsible for tracking the expenditure of funds for investigation activities as reported by the investigation consulting firm, in accordance with s. NR 747.62.

NR 747.61(3) (3) Reimbursement and cost controls during the investigation. For all investigation work that is not publicly bid under this subchapter, the usual and customary cost schedule referenced in s. NR 747.325 and the maximum costs specified in s. NR 747.337 (2) shall apply to reimbursement of all costs.

NR 747.61 Note Note: Under s. NR 747.33 (6) (c), the department will not require commodity bidding during the investigation, 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 this subchapter.

NR 747.61 History History: CR 04-058: cr. Register February 2006 No. 602, eff. 5-1-06; correction in (2), (3) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; corrections in (2), (3) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 747.62 NR 747.62 Periodic progress reporting during a site investigation.

NR 747.62(1) (1) Frequency of reports.

NR 747.62(1)(a) (a) To inform the department of the consulting firm’s progress and the estimated cost of work remaining in the investigation for each occurrence, the consulting firm for a site investigation shall periodically submit reports to the department in a format prescribed by the department, no later than the recurring, earlier of the following dates:

NR 747.62(1)(a)1. 1. The anniversary date of the contract between the firm and the responsible party, except as provided in par. (b).

NR 747.62(1)(a)2. 2. The end of the calendar month that follows the month of completion of each investigative phase specified by the department.

NR 747.62 Note Note: See sub. (3) for information on directives from the department to carry out specific investigation activities.

NR 747.62 Note Note: See sub. (4) for filing a notice of completion of an investigation.

NR 747.62(1)(b) (b) After a report is filed under par. (a) 2., the anniversary shall be based on the date of that report.

NR 747.62(1)(c) (c) For occurrences that are not covered under s. 101.144 (2) (b), Stats., the department shall send the DNR a copy of the reports received under par. (a).

NR 747.62 Note Note: This paragraph is no longer effective and is subject to future repeal. Section 101.144, Stats., was repealed by 2013 Wis. Act 20. The “department” in this paragraph refers to the department of safety and professional services, which no longer has responsibility for occurrences under this section.

NR 747.62 Note Note: See s. NR 747.71 for special requirements for existing sites.

NR 747.62(2) (2) Department response to investigation progress reports. After receiving a progress report under sub. (1), the department shall record the receipt and send a written response to the responsible party and the consulting firm, providing an assessment of the financial management of the investigation, an assessment of the estimate of the cost to complete the investigation for the occurrence, and a decision, if possible, of whether or not the occurrence is subject to the public bidding process in s. NR 747.68.

NR 747.62(3) (3) Directives from the department to carry out specific investigation activities. At any time during the investigation, the department may direct the responsible party and the consulting firm to carry out specific activities necessary to achieve the most cost-effective collection of investigation data necessary to determine whether the occurrence is subject to competitive public bidding and to define a closure standard, remediation target, or scope of work for the remediation.

NR 747.62(4) (4) Notice of completion of investigation.

NR 747.62(4)(a) (a) By the end of the calendar month that follows the consulting firm’s development of all investigation data necessary to define either the remediation target or the scope of the remediation for an occurrence, the firm shall file with the department a notice of completion of an investigation, on a form prescribed by the department.

NR 747.62 Note Note: As established in s. NR 747.30 (2) (o) and (i), the department will not reimburse costs, including interest cost, for any work performed after submittal of the notice of completion under this subsection and prior to the department’s issuance of a response under sub. (5).

NR 747.62(4)(b) (b) For occurrences that are not covered under s. 101.144 (2) (b), Stats., the department shall send the DNR a copy of the notice received under par. (a).

NR 747.62 Note Note: This paragraph is no longer effective and is subject to future repeal. Section 101.144, Stats., was repealed by 2013 Wis. Act 20. The “department” in this paragraph refers to the department of safety and professional services, which no longer has responsibility for occurrences under this section.

NR 747.62(5) (5) Department response to notice of completion. After receiving a notice of completion of an investigation of an occurrence, the department shall send a written response to the responsible party and to the consulting firm, containing a decision by the department on whether the occurrence is subject to public bidding, or whether the responsible party may proceed to remediate the occurrence or take other action directed by the department.

NR 747.62 Note Note: See s. NR 747.623 for determining which occurrences are subject to public bidding.

NR 747.62 Note Note: See ss. NR 747.325 and 747.337 for cost controls for work that is not subject to public bidding.

NR 747.62 Note Note: As established in s. NR 747.30 (2) (p) and (i), the department will not reimburse costs, including interest costs, for any work performed more than 5 business days after the department issues a decision under this section that an occurrence is subject to the public bidding process in s. NR 747.68, if the work is conducted outside of that process.