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
Bureau for Remediation & Redevelopment
101 S. Webster Street, 5th Floor
Madison, WI 53703
NR 747.53 Note
Bureau for Remediation & Redevelopment
P.O. Box 7921
Madison, WI 53707-7921
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.
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.
All hearings shall be conducted in accordance with these rules and ch. 227, Stats.
(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:
The settlement agreement shall be transmitted in writing to the administrative law judge designated by the secretary of the department.
The settlement agreement shall be binding upon the parties when signed by both parties and returned to the department.
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.
Witness fees and mileage of witnesses subpoenaed on behalf of the department shall be paid at the rate prescribed for witnesses in circuit court.
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.
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
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.
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.
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
Proceeding to an appeal hearing under s. NR 747.53
precludes the claimant from filing an arbitration request regarding the same issues.
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.
Only the costs in the following categories may be the subject of arbitration under this section:
Except where otherwise specified, the following terms are defined as follows for the purposes of this section:
“Administrator" means the administrator of the environmental and regulatory services division of the department, or his or her designee.
“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
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
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)
“Claim" means the amount sought by a claimant as remediation costs actually incurred by the claimant at a remediation site.
“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.
“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.
The department shall establish and maintain a panel of environmental arbitrators.
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.
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.
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.
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.
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.
No party or agent of a party may make or knowingly cause to be made to the arbitrator an ex parte communication.
The arbitrator may not make or knowingly cause to be made to any party or agent of a party an ex parte communication.
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)
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.
The prohibitions of this subsection apply upon appointment of the arbitrator and terminate on the date of the final decision.
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:
A description of the site and a brief summary of the actions taken at the site.
A statement of the issues arising from the costs denied by the department in the claim, that are being submitted for resolution by arbitration.
A statement that the parties consent to resolution of the issues jointly submitted to the arbitrator.
A statement that the parties agree to be bound by the final decision on all issues jointly submitted to the arbitrator, subject to the right to challenge the final decision solely on the grounds and in the manner prescribed in sub. (11) (b)
A statement that the parties agree that the final decision shall be binding only with respect to the costs at issue in the claim submitted for arbitration.
A statement that each signatory to the joint submittal is authorized to enter into the arbitration and to bind legally the party represented by him or her to the terms of the joint submittal.
Any party may move to modify the joint submittal for arbitration to include one or more additional issues arising in the referred claim. To be effective, the modification must be signed by the arbitrator and all other parties.
Within 10 days after receipt of the arbitrator's acceptance under sub. (4) (c)
, the claimant shall submit to the arbitrator 2 copies of a written statement and shall serve a copy of the written statement upon all other parties. The written statement shall include all of the following:
A statement of facts, including a description of the costs incurred by the claimant in connection with the action taken at the site that have been denied by the department, and statements which state with particularity the basis for the claimant's assertion that the costs denied by the department are eligible.
A description of the evidence in support of both of the following:
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.
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.
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.
Any other statement or documentation that the claimant deems necessary to support its claim.
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.
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:
A brief statement of the department's basis for denying the costs at issue that are the subject of the arbitration.
Any objections to the statement of facts in the claimant's written statement, and, if so, a counterstatement of facts.
A description of the evidence in support of the department's denial of the costs at issue and any supporting documentation thereof.
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.
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.
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.
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)
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.
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:
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.
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.