NR 747.30(5)
(5) Areas of contamination containing eligible and ineligible products. When an area of contamination is identified which contains both eligible and ineligible products under the fund, the following shall apply:
NR 747.30(5)(a)
(a) Costs associated with the eligible products may be claimed. Any costs that are required only because of the presence of an ineligible product may not be claimed.
NR 747.30(5)(b)
(b) The owner or operator and the department shall be notified immediately. The consultant, in conjunction with the owner or operator, shall propose a methodology to the department for dividing the costs of remediation between the eligible and ineligible products. Department approval of a methodology shall be obtained by the owner or operator prior to the submittal of any claims.
NR 747.30 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94; r. and recr. (4),
Register, December, 1998, No. 516, eff. 1-1-99;
CR 04-058: renum. (1) (a) to be Comm 47.10 (1) (a) 3. and am., renum. (1) (intro.), (2) (a) 2., 5. to 7., 9., 10., 14., 15., (d) 3. to 5., 7., (e) 4., (3) and (4) to be (2) (a) 1. to 8., (d) 1. to 4., (e) 3., (4) and (5) and am. (1) (a), (2) (a) 7., and (5) (intro.) and (a), am. (1) (b) 2., 4., (2) (b) 7. and 8., r. (1) (b) 5., (2) (a) 1., 3., 4., 8., 11. to 13., (c) 3., (d) (intro.), 1., 2., 6., 8., and (e) 3., r. and recr. (2) (h) to (k), cr. (2) (L) to (x) and (3),
Register February 2006 No. 602, eff. 5-1-06; correction in (1) (b) 1., (2) (d) 2., (i) to (u), (3) (b) 13., (4) made under s.
13.92 (4) (b) 7., Stats.,
Register December 2011 No. 672;
corrections in (1) (b) 1., (c) 4., (2) (intro.), (a) 7., (b) 7., (c) 2., (d) 2., (h) to (u), (3) (b) 16., (4) made under s. 13.92 (4) (b) 6., 7., Stats., Register October 2013 No. 694. NR 747.305
NR 747.305 Costs associated with loans. NR 747.305(1)(a)(a)
Allowability of interest costs. The fund will reimburse interest expense if a loan is specifically secured for a remediation and the proceeds are applied only to the cleanup at the site. To be eligible, interest costs cannot be combined with retrofits or construction loans and shall be site specific. Reasonable money management shall be practiced to avoid unnecessary accrual of interest charges. Interest expenses shall be managed in the most cost-effective manner possible and invoices shall be paid in a timely manner to avoid interest costs or late charges. If a line of credit is used to provide funding for a remediation, clear documentation shall be provided on the disbursements and interest expenses.
NR 747.305(1)(b)
(b)
Ineligible interest expenses. The PECFA fund shall not reimburse for the following items:
NR 747.305(1)(b)1.
1. The opportunity cost of money or interest income or dividend income lost because of a decision to use internal funding for a remediation;
NR 747.305(1)(b)4.
4. Additional interest costs accrued for the use of PECFA loan proceeds to earn money or for investment purposes.
NR 747.305 Note
Note: Section
292.63 (4) (c) 8., Stats., reads as follows: “Interest costs incurred by an applicant that exceed interest at the following rate:
NR 747.305 Note
a. If the applicant has gross revenues of not more than $25,000,000 in the most recent tax year before the applicant submits a claim, 1% under the prime rate.
NR 747.305 Note
b. If the applicant has gross revenues of more than $25,000,000 in the most recent tax year before the applicant submits a claim, 4%."
NR 747.305 Note
Note: Section
292.63 (4) (cc), Stats., reads as follows: “
Ineligibility for interest reimbursement. 1. a. Except as provided in subd. 1m. or 2., if an applicant's final claim is submitted more than 120 days after receiving written notification that no further remedial action is necessary with respect to the discharge, interest costs incurred by the applicant after the 60th day after receiving that notification are not eligible costs.
NR 747.305 Note
c. Except as provided in subd. 2., if an applicant does not complete the investigation of the petroleum product discharge by the first day of the 61st month after the month in which the applicant notified the department under sub. (3) (a) 3. or October 1, 2003, whichever is later, interest costs incurred by the applicant after the later of those days are not eligible costs.
NR 747.305 Note
1m. If an applicant received written notification that no further remedial action is necessary with respect to a discharge before September 1, 2001, and the applicant's final claim is submitted more than 120 days after September 1, 2001, interest costs incurred by the applicant after the 120th day after September 1, 2001, are not eligible costs.
NR 747.305 Note
2. Subdivision 1. does not apply to any of the following:
NR 747.305 Note
a. An applicant that is a local unit of government, if federal or state financial assistance other than under this section, has been provided for that expansion or redevelopment.
NR 747.305 Note
b. An applicant that is engaged in the expansion or redevelopment of brownfields, as defined in s.
238.13 (1) (a), if federal or state financial assistance other than under this section, has been provided for that expansion or redevelopment."
NR 747.305 Note
Note: Other sections of this code may also specify interest costs that are ineligible for reimbursement, such as ss.
NR 747.12 (3) (c) and
747.30 (2) (i) and
(j).
NR 747.305(1)(c)1.1. The following maximum rates are established for loans secured after January 31, 1993, and before October 15, 1997, for the purposes of a remediation:
NR 747.305(1)(c)1.a.
a. Interest rate shall be reimbursable at no more than 2% above the prime rate.
NR 747.305(1)(c)1.b.
b. Loan origination fees from the same lender shall be reimbursable only once, and at no more than 2 points of the loan principal. Where a later, larger loan is obtained to pay off a preceding loan, the origination fee for the portion of the later loan that equals the preceding principal will not be reimbursed. A duplicative loan origination fee from a subsequent lender will not be reimbursed, unless the preceding loan was terminated by a different lender.
NR 747.305(1)(c)2.
2. The following maximum rates are established for loans secured on or after October 15, 1997, for the purposes of a remediation:
NR 747.305(1)(c)2.a.
a. Interest rate shall be reimbursable at no more than 1% above the prime rate.
NR 747.305(1)(c)2.b.
b. Loan origination fees from the same lender shall be reimbursable only once, and at no more than 2 points of the loan principal. Where a later, larger loan is obtained to pay off a preceding loan, the origination fee for the portion of the later loan that equals the preceding principal will not be reimbursed. A duplicative loan origination fee from a subsequent lender will not be reimbursed, unless the preceding loan was terminated by a different lender.
NR 747.305(1)(d)
(d)
Annual services fees. Annual loan service fees charged on or before April 20, 1998, shall be reimbursable at no more than 1% of the unreimbursed amount and remaining available loan balance. Annual loan service fees charged after April 20, 1998, shall be reimbursable at no more than 1% of the outstanding unreimbursed loan amount.
NR 747.305(1)(e)
(e)
Documentation. A copy of the loan agreement documenting the interest rate, loan origination fees, and other costs, shall be submitted when requested by the department.
NR 747.305(1)(f)
(f)
Lending agreements. In lieu of the maximum rates specified in
par. (d), the department may negotiate agreements with lending institutions to obtain lower rates. The department may solicit proposals from lending institutions to supply loans for PECFA remediations.
NR 747.305(1)(g)
(g) Other items. In addition to the maximum rates established in
par. (c), the following shall apply:
NR 747.305(1)(g)1.
1. Annual loan service fees shall be charged no more frequently than once annually, and at a rate of no more than 1% on the outstanding balance.
NR 747.305(1)(g)2.
2. Original and re-estimated loan amounts, to the extent feasible, shall reflect a sound estimate of the cost to perform the remediation. Excessive estimates which result in excessive or unnecessary interest costs may not be reimbursed by the PECFA fund.
NR 747.305(2)
(2) Minimum loan amounts. A lending institution may unilaterally establish a minimum loan amount of $100,000 or less. Minimum loan amounts of more than $100,000 and loan origination fees on minimum loans of more than $100,000 shall require prior written approval of the department.
NR 747.305 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94; r. and recr. (1) (c) to (f), cr. (1) (g),
Register, December, 1998, No. 516, eff. 1-1-99;
CR 04-058: am. (1) (b) 3. and 4., (c) 1. b., 2. b. and (g) 1., cr. (1) (b) 5. and 6.,
Register February 2006 No. 602, eff. 5-1-06;
correction in (1) (b) 5. made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694. NR 747.31
NR 747.31 Incentives for cost-effective remediation. NR 747.31(1)(1)
General. The department may make incentives available to responsible parties who use the most cost-effective remediation methods and alternatives or participate in the voluntary bundling of sites for remediation purposes.
NR 747.31(2)
(2) Incentives. For claimants who participate in the voluntary bundling of sites or for remediations that have approval as closed remedial actions and eligible costs not exceeding $60,000, excluding interest, the claim may receive priority review in the award process.
NR 747.325(1)
(1)
Application. This section applies to all work covered under this chapter, for all occurrences previously or newly reported to the department, that is performed after May 1, 2006, except it does not apply to any of the following:
NR 747.325(1)(a)
(a) Work for which a reimbursement cap has been determined through the competitive public bidding process established under s.
292.63 (3) (cp), Stats.
NR 747.325(1)(b)
(b) Work performed as part of an emergency action, within the initial 72 hours after the onset of the need for the action.
NR 747.325(2)
(2) Cost schedule. Any cost for items that are commonly associated with claims under this chapter, which exceeds the amounts listed in the department's schedule of usual and customary costs, as published and in effect while the work was performed, may not be reimbursed, except as provided in
sub. (3).
NR 747.325 Note
Note: The department of commerce promulgated rule order
CR 07-032, relating to the schedule of usual and customary costs for the petroleum environmental cleanup fund awards, which was filed with the revisor of statutes bureau for publication in the October 2007 Wisconsin Administrative Register. The department directed that the schedule not be published in the Wisconsin Administrative Code as it is a “form" under s.
227.23, Stats., available as described in the next note, consistent with the requirements of s.
227.23 (3), Stats.
NR 747.325 Note
Note: The department's schedule of usual and customary costs is reviewed for updating in January and July of each year to reflect changes in actual costs. The current schedule, and all preceding versions, are posted at
http://dnr.wi.gov/topic/brownfields/pecfa.html, under petroleum programs and PECFA.
NR 747.325 Note
Note: The schedule of usual and customary costs limits the per-unit reimbursement for various, commonly associated tasks. For caps on reimbursement for items that are not commonly associated with claims, or for caps on the scope of work for a particular task or occurrence, other sections of this chapter may apply, such as s.
NR 747.337 (2), which addresses the maximum allowable cost for a site investigation and the development of a remedial action plan, and subch. VI, which addresses competitive public bidding.
NR 747.325(3)
(3) Exceeding the schedule. The maximum reimbursement amounts established under
sub. (2) may be exceeded only in accordance with all of the following:
NR 747.325(3)(b)
(b) The higher costs, as needed under
par. (a), are specifically approved in writing by the department prior to performance of the corresponding work.
NR 747.325 Note
Note: Under s.
292.63 (3) (c) 3., Stats., a responsible party is required to “conduct all remedial action activities at the site of the discharge from the petroleum product storage system or home oil tank system necessary to restore the environment to the extent practicable and minimize the harmful effects from the discharge as required under s.
292.11, Stats."
NR 747.325(4)(a)(a) No later than 30 days after May 1, 2006, the responsible party or agent for each occurrence reported to the department by May 1, 2006, shall complete and submit to the department an occurrence-classification form prescribed by the department, except as provided in
par. (c).
NR 747.325(4)(b)
(b) If an occurrence-classification form required under
par. (a) is not submitted in accordance with
par. (a), the department may not reimburse costs for any work performed between May 1, 2006, and the date the department receives the form.
NR 747.325(4)(c)
(c) An occurrence-classification form is not required where the only remaining work consists of submitting a claim or completing the conditions in a conditional closure letter from the department.
NR 747.325(5)(a)(a) If the department requests additional information after receipt of the occurrence-classification form required in
sub. (4), the responsible party or agent shall provide the requested information no later than 45 days after the date of the department's request.
NR 747.325(5)(b)
(b) If information requested under
par. (a) is not submitted in accordance with
par. (a), the department may only reimburse costs for the subject occurrence that are listed on the schedule established under
sub. (2).
NR 747.325(6)
(6) Response to the occurrence-classification form or to additional information. After receipt of the occurrence-classification form required under
sub. (4) or the additional information requested under
sub. (5), the department may take one or more of the following actions:
NR 747.325(6)(a)
(a) Limit reimbursement to the costs listed in the schedule established under
sub. (2).
NR 747.325(6)(b)
(b) Specify a reimbursement cap for costs that are not listed in the schedule established under
sub. (2).
NR 747.325(6)(c)
(c) Specify a scope of work and a corresponding reimbursement cap.
NR 747.325(7)
(7) Claims for prior costs. For an occurrence that is the subject of a department directive under
sub. (6) (b),
(c) or
(d), claims for reimbursement for costs incurred before the effective date of the directive shall be paid in accordance with
s. NR 747.025.
NR 747.325 Note
Note: As required in s.
NR 747.12 (1) (intro.), all claims for reimbursement for the costs included in the schedule established under sub. (2), or the costs included under sub. (7), must be submitted in a format prescribed by the department.
NR 747.325 History
History: CR 04-058: cr.
Register February 2006 No. 602, eff. 5-1-06;
CR 07-032:
Register October 2007 No. 622; correction in (7) made under s.
13.92 (4) (b) 7., Stats.,
Register December 2011 No. 672;
corrections in (1) (intro.), (a), (3) (a), (4) (a), (c), (6) (d), (7) made under s. 13.92 (4) (b) 6., 7., Stats., Register October 2013 No. 694. NR 747.33
NR 747.33 Comparative proposals and bid processes for remediation activities and services. NR 747.33(1)(1) Except for home oil tank owners and department approved emergency actions, the purchase of consulting and commodity services, not already covered by a detailed written contract, as of February 1, 1993, shall conform to the procedures in this section. In order to qualify as an existing contract, the document shall be with a specific service provider and shall specify contract items, such as but not limited to, the project details, time limitations, projected completion dates, payment terms and other standard contract language.
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)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)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.
