Wis. Admin. Code Department of Natural Resources NR 747.30

Current through October 28, 2024

Section NR 747.30 - Eligible cost items for remediation

(1) ELIGIBLE COSTS.

(a) Costs related to the categories in pars. (b) to (g) may be reimbursed under the scope of this chapter.

(b) Costs associated with emergency action, site investigation and remedial plan development, remediation, long-term monitoring or operation and maintenance:

1. Investigation of potential sources of contamination by precision testing to determine tightness of tanks and lines if the method used is approved by the department and the tester is certified by the department of agriculture, trade and consumer protection as specified in ch. ATCP 93 and the testing is not designed to meet the regular leak detection responsibilities of the owner or operator;

2. Costs of eligible work performed after confirmation of a petroleum product discharge;

3. Preparation of remedial action alternatives and plans;

4. Laboratory services for testing specific to this chapter, including full VOC testing; and

5. Investigation and assessment of the degree and extent of contamination caused by a petroleum product discharge from a petroleum product storage tank system or home oil tank system.

(c) Costs associated with excavation and disposal of contaminated soils:

1. Removal of contaminated soils;

2. Actual costs incurred which are associated with equipment mobilization;

3. Removal of petroleum products from surface waters, groundwater or soil; and

4. Treatment and disposal of contaminated soils including department approved procedures for bio-remediation.

Note: All soils shall be reported in tons when included in a claim.

(d) Costs associated with monitoring and other remedial action activities:

1. Monitoring of natural bio-remediation progress;

2. Actual charges for maintenance of equipment used for petroleum product recovery or remedial action activities;

3. Other costs identified by the department as necessary for proper investigation, remedial action planning and remedial action activities to meet the requirements of ch. 292, Stats.;

4. State or municipal permits for installation of remedial equipment;

5. Actual costs for the purchase or rental of temporary building structures of a size adequate to house remedial equipment; and

6. Restoration or replacement of a private or public potable water supply.

(e) Costs associated with personnel, travel and related expenses:

1. Contractor or subcontractor costs for remedial action activities;

2. Labor and fringe benefit costs associated with inspection and supervision other than specified in subd. 4.;

3. Actual costs incurred for travel and lodging which are not in excess of state travel rates; and

4. Actual verified labor, fringe benefit and equipment costs when claimants use their own personnel or equipment to conduct a remediation.

Note: A listing of state travel and meal rates may be obtained by writing to the Wisconsin DNR, Bureau for Remediation & Redevelopment, P.O. Box 7921, Madison WI 53707-7921.

(f) Costs associated with the preparation of a claim package under the scope of this chapter and other related costs:

1. Fees up to $500 for a certified public accountant, contractor, or other independent preparer for compiling a claim under this chapter; and

2. For an owner or operator only, compensation to third parties for bodily injury and property damage caused by a petroleum product discharge from an underground petroleum product storage tank system.

(g) Costs associated with the support or protection of existing utilities or structures located within the remediation area during a remediation.

Note: Reimbursement for the re-installation of utilities or structures, without prior department approval, may not be made.

(2) EXCLUSIONS FROM ELIGIBLE COSTS. The department has identified various costs determined to be ineligible for reimbursement. Section 292.63, Stats., lists specific cost items which may not be reimbursable under the PECFA program. In order to control costs and provide awards for the most cost-effective remediations of petroleum-contaminated sites within the scope of this chapter, the following costs may not be reimbursed:

(a) Costs determined to be unrelated to remedial action activities under the scope of this chapter:

1. Any costs not supported by cancelled checks or other absolute proof of payment at time of submittal;

2. Any overtime labor charge, excluding an emergency action, billed at other than a straight time rate;

3. Costs for contamination cleanups from non-residential heating oil or boiler tank systems and discharges from mobile fueling tanks or fuel storage tanks on vehicles;

4. Costs associated with used oil remediations, if the oil is not from internal combustion engines;

5. Costs associated with environmental audits, environmental reconnaissance or real estate transactions, construction projects, new construction or long-term loan transactions;

6. Costs associated with investigation activities to locate petroleum product storage systems or home oil tank systems to determine eligibility for an award under the scope of this chapter;

7. Costs incurred after the department determines that no further remedial action is required, except for abandonment of monitoring wells and finalization of site closure;

8. Other costs that the department determines to be associated with, but not integral to, the remediation of a petroleum product discharge from a petroleum product storage system or home oil tank system.

(b) Costs related to improper or incompetent remedial activities and services:

1. Costs associated with incompetent or non-effective cleanup actions which were not based upon sound professional and scientific judgment;

2. Costs of redoing remedial action activities or remedial action work which was incomplete or incompetent;

3. Costs associated with rework on remedial systems to accommodate construction, upgrades, retrofits, or redevelopment projects;

4. Any costs associated with actions that exceed the necessary activities to bring a site to the required level of remediation;

5. Costs associated with the repair or replacement of damaged buildings, sewer lines, water lines, electrical lines, phone lines, fiber optic lines or other utilities on the property;

6. Costs associated with the re-installation of damaged remedial equipment or the re-installation or modification of the remedial equipment for purposes other than effective remediation;

7. Additional interest costs accrued due to improper or incomplete filing of claims or non-response to department requests for additional information, exceptions being delays caused by the department claim process;

8. Any late service charges;

9. Any costs related to invoices or bills for which payment verification is unobtainable.

(c) Costs for testing or sampling unrelated to the investigation for the extent of contamination under the scope of this chapter:

1. Costs for sampling and testing for heavy metals, except lead testing when the discharge is verified to be from leaded gasoline, or lead and cadmium when the source is used motor oil;

2. Costs associated with the analysis for inappropriate constituents not normally part of or associated with an eligible petroleum product even if required by the department; and

(d)

1. Costs for remedial action activities funded under 42 USC 6991, unless the owner or operator or the person owning the home oil tank system repays the funds provided under 42 USC 6991;

2. Expenditures required by the department in order to meet the groundwater protection standards, ch. 160, Stats., ch. ATCP 93 or other administrative rules but not related to a petroleum product discharge under this chapter;

3. Costs associated with loss of business;

4. Costs associated with loss of interest or dividends, or interest costs from a loan other than one for the remediation; and

(e) Costs associated with site closure:

1. Costs associated with the closure of a tank system;

2. Costs associated with tank closure assessments;

3. Costs associated with the abandonment of wells not related to the remedial action.

(f) Costs associated with legal issues:

1. Costs, other than costs for compensating third parties for bodily injury and property damage, which the department determines to be unreasonable or unnecessary to carry out the remedial action activities as specified in the approved remedial action plan;

2. Costs associated with third-party actions by adjoining property owners for the installation of monitoring wells or other cleanup-related items unless a court judgment has been obtained;

3. Costs associated with third-party damages from a discharge originating from an aboveground storage tank;

4. Attorney fees associated with third-party actions;

5. Any costs associated with an appeal of a determination specific to the scope of this chapter; and

6. Other attorney fees including, but not limited to, legal advice, appeals, or other representation on behalf of the responsible party or agent.

(g) Supervisory and management costs that the department determines to be unreasonable or unnecessary in carrying out the remedial action activities under this chapter:

1. Supervisory or management costs when a municipality or company uses their own personnel or personnel from a wholly- or partially-owned subsidiary for remedial activities;

2. Costs for supervisory or management activities conducted by owners or operators;

3. Costs incurred by a responsible party associated with bid requirements or project administration such as consultant selection, monitoring or supervising subcontractors or consultants;

4. Costs for right of entry or trespass fees; and

5. Separate vehicle and mileage costs.

(h) Any costs, excluding for an emergency action, incurred before a confirmed discharge is reported to the department.

(i) Interest costs associated with costs that are ineligible under this section or s. NR 747.30(3).

Note: See s. NR 747.305 for further ineligible costs associated with loans.

(j) Interest costs excluded under s. NR 747.60(2) (a), 747.625, or 747.69(1) (b).

(k) Costs determined by the department to be excessive, as defined by the usual and customary cost schedule periodically established by the department under s. NR 747.325.

(L) Costs for any work performed where a contract is not in place as required in s. NR 747.33(2) (a) 1.

(m) Costs incurred for services exempted under s. NR 747.33(6) (b) 1., if the costs are incurred prior to the department approval required under s. NR 747.33(6) (b) 2., and the approval requirement is not subsequently waived by the department.

(n) Costs which exceed the $20,000 limit in s. NR 747.337(2) (a) for a site investigation and remedial action plan, and which are incurred prior to either providing the notices that are required in s. NR 747.337(2) (c), or obtaining the approval which is required in s. NR 747.337(2) (b).

(o) Costs for any work performed after submittal of the notice of completion of an investigation under s. NR 747.62(4) and prior to the department's issuance of a response to the responsible party and the consulting firm under s. NR 747.62(5).

(p) Costs for any work performed more than 5 business days after the department issues a decision under s. NR 747.62(5) that an occurrence is subject to the public bidding process in s. NR 747.68, if the work is conducted outside of that process.

(q) Costs for any work that is performed after submittal of a written deferral notice under s. NR 747.63(5) (c) and prior to a departmental authorization to proceed with additional activities.

(r) Costs for any unauthorized work performed more than 5 business days after the department issues a directive or notice under s. NR 747.64(1) about using the public bidding process in s. NR 747.68.

(s) Costs for any unauthorized services that are performed by any party other than a firm which submitted a bid under s. NR 747.68(2) and with which a contract is executed under s. NR 747.69, if they are conducted after the qualified low bid is determined under s. NR 747.68(3).

Note: For the purposes of pars. (o) to (s), costs for preparing or submitting a claim are eligible for reimbursement, regardless of when those costs are incurred.

(t) Costs that exceed the maximum reimbursement established under s. NR 747.68(7) (d).

(u) Costs for unauthorized work performed more than 5 business days after the department issues a disqualification notice under s. NR 747.70(4) (d).

(v) Costs for any work performed between the due date of any submittal required under this subchapter and the date a past-due submittal is actually submitted.

(w) Costs for performance bonds.

(x) Costs incurred that exceed caps established by the department unless written department approval is received prior to performance of the corresponding work.

(3) PENALIZED INELIGIBLES.

(a)

1. The costs in par. (b) are considered to be grossly ineligible for reimbursement.

2. An award for a claim which includes any costs in par. (b) and which was prepared and submitted by an owner or operator or person owning a home oil tank system shall be reduced to exclude those costs, and shall then be further reduced by 50 percent of the total amount of those costs.

3. A consultant who prepares a submitted claim that includes any costs in par. (b) shall pay to the department an amount equal to 50 percent of the total amount of those costs, and the award for the claim shall be reduced to exclude those costs.

(b)

1. Costs incurred on or before August 1, 1987, for a remediation.

2. Costs for cleanup resulting from spills from petroleum transportation equipment.

3. Costs for investigations or remedial action activities conducted outside the state of Wisconsin.

4. Costs associated with emptying, cleaning, or disposing of storage tank systems, and other costs associated with closing or removing any petroleum product storage tank system or home oil tank system after November 1, 1991 - unless the claimant has a contract for those services that was signed before November 1, 1991; or has a loan agreement, note, or commitment letter for a loan for the purposes of conducting those services, that was executed before November 1, 1991.

5. Laboratory rush charges, unless related to an approved emergency action.

6. Air travel.

7. Costs associated with tank-system upgrades or retrofits, and any corresponding compliance with other state or federal rules or laws, and future business plans.

8. Costs for repairing, retrofitting, or replacing a petroleum product storage system or home oil tank system, such as for tank bedding materials or fill for setting tanks, lines, or canopies.

9. Costs associated with capital improvements, reinstallation of electrical power, dispensers, pumps, or other items for retrofits, upgrades, or new construction, unless written department approval is received prior to performance of the corresponding work.

10. Costs associated with concrete, blacktop replacement, on-site landscaping, or other improvements; except for depreciation costs for third-party actions, or for asphalt or concrete patching associated with well abandonment, or where written department approval is received prior to performance of the corresponding work.

11. Costs associated with razing of buildings, removal of roads, removal of footings and foundations, or other destruction of structures, or other redevelopment costs, unless written department approval is received prior to performance of the corresponding work.

12. The opportunity cost of money, or interest income or dividend income lost because of a decision to use internal funding for a remediation.

13. Subcontractor markups for work performed after January 31, 1993. This subdivision does not apply to work that is included in a public bidding contract executed under s. NR 747.69(1).

14. Costs associated with general program support and office operation which are expected to be included in the hourly staff rates, such as telephone charges, photocopying, faxes, paper, printing, postage, hand tools, personal protective equipment, computer equipment, computer-aided-design, and software charges.

Note: For the purposes of this section, photo ionization detectors, flame ionization detectors, electronic equipment, and sampling kits are not considered hand tools.

15. Costs reimbursed by insurance companies unless performing in an agent role.

16. Costs associated with fees required by any other state agency, such as fees authorized by s. 292.55, Stats., and fees listed in ch. NR 749, except department closure review fees incurred prior to October 29, 1999.

(4) CLAIMS INCLUDING INELIGIBLE COSTS. Claims submitted which include ineligible costs shall be considered incomplete and may be returned to the claimant for recalculation, revision and re-submittal. The claim shall be rescheduled for review when the ineligible costs have been removed and the claim received by the department. The department may disallow interest costs accrued during the non-response period, as specified in s. NR 747.12(3) (a).

(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:

(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.

(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.

Wis. Admin. Code Department of Natural Resources NR 747.30

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.