Section NR 747.54 - Arbitration(1) APPLICATION. (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.(b)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 747.53.2. Proceeding to an appeal hearing under s. NR 747.53 precludes the claimant from filing an arbitration request regarding the same issues.(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.(2) SCOPE. Only the costs in the following categories may be the subject of arbitration under this section: (a) Investigating a petroleum product discharge.(b) Planning remedial action.(c) Conducting remedial action activities.(3) DEFINITIONS. (a)Deadlines. All time deadlines in this section, except in sub. (10) (e) 1., are specified in calendar days.(b)Terms. Except where otherwise specified, the following terms are defined as follows for the purposes of this section: 1. "Administrator" means the administrator of the environmental and regulatory services division of the department, or his or her designee.2. "Arbitrator" means a person appointed in accordance with s. 292.63(6s), Stats., and governed by the provisions of this section. 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)."
3. "Claim" means the amount sought by a claimant as remediation costs actually incurred by the claimant at a remediation site.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.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.(4) APPOINTMENT OF ARBITRATOR. (a) The department shall establish and maintain a panel of environmental arbitrators.(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.(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.(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.(5) CHALLENGE PROCEDURES. (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.(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.(6) EX PARTE COMMUNICATION. (a) No party or agent of a party may make or knowingly cause to be made to the arbitrator an ex parte communication.(b) The arbitrator may not make or knowingly cause to be made to any party or agent of a party an ex parte communication.(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.(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.(e) The prohibitions of this subsection apply upon appointment of the arbitrator and terminate on the date of the final decision.(7) JOINT SUBMITTAL. (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: 1. A description of the site and a brief summary of the actions taken at the site.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.3. A statement that the parties consent to resolution of the issues jointly submitted to the arbitrator.4. 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) and (c).5. 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.6. 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.(b) 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.(8) FILING OF PLEADINGS. (a) Discovery shall be in accordance with this subsection.(b) 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:1. 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.2. A description of the evidence in support of both of the following: a. The site at which the action was taken is an eligible site pursuant to s. NR 747.02.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.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.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.5. Any other statement or documentation that the claimant deems necessary to support its claim.(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.(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: 1. A brief statement of the department's basis for denying the costs at issue that are the subject of the arbitration.2. Any objections to the statement of facts in the claimant's written statement, and, if so, a counterstatement of facts.3. A description of the evidence in support of the department's denial of the costs at issue and any supporting documentation thereof.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.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.(9) JURISDICTION OF ARBITRATOR. (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.(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).(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.(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: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 for the period in which the costs were incurred.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.(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.(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.(10) ARBITRATION DECISION. (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.(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.(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.(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.(e)1. Within 5 business days after receipt of any additional information submitted under par. (d), the arbitrator shall render a final decision.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.(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.(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.(11) EFFECT AND ENFORCEMENT OF FINAL DECISION.(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. Note: As established in s. NR 747.54(1) (b) 1., an arbitrator's decision may not be appealed under s. NR 747.53.
(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.(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.(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: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. Note: Section 101.144, Stats., was repealed by 2013 Wis. Act 20.
2. Seek any relief for any violation of criminal law from any claimant, consultant, commodity provider, contractor, or subcontractor.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.(12) FEES AND EXPENSES. (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.(b) The department shall establish the per diem fee for the arbitrator prior to the commencement of any activities by the arbitrator.(13) MISCELLANEOUS PROVISIONS. (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.(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.(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.(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.Wis. Admin. Code Department of Natural Resources NR 747.54
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.