5. Plain Language Analysis:
The Remediation and Redevelopment program is proposing the creation of Wis. Admin. Code chs. NR 756 and 758. The purpose of these revisions is to provide procedures for new requirements and statutory changes under 2015 Wisconsin Act 204 (“Act 204”). Proposed revisions include the following: Implementation of 2015 Wis. Act 204 requirements for financial responsibility at contaminated sediment sites. Act 204 amended Wis. Stat. ch. 292 by establishing new requirements regarding the way contaminated sediments are assessed, managed, and remediated. The act created requirements relating to sites where a person is using an engineering control to address contaminated sediment. At these sites, the department may require submission of a plan and compliance schedule and proof of financial responsibility for the maintenance of an engineering control and for the investigation and remediation of residual contamination following the removal of a structural impediment. Act 204 created the opportunity for persons to obtain the Voluntary Party Liability Exemption (VPLE) at sites with contaminated sediments, and imposed insurance or an alternative form of financial assurance requirements on contaminated sediment sites enrolled in the VPLE program. It also outlined special conditions for partial cleanup approvals at VPLE properties with contaminated sediment. The proposed ch. NR 756 creates consistency with statutory changes and provides clarity, guidance, forms, and procedures for changes relating to financial responsibility for engineering controls at contaminated sediment sites and for addressing contamination when a structural impediment is removed. The proposed rule includes added language in chs. NR 708, 722, 724, and 726 to explain the applicability of ch. NR 756 requirements, and the creation of ch. NR 756, which includes: -The purpose, applicability, and definitions for the chapter in ss. NR 756.01 to 756.03. -The primary requirements for the plan and compliance schedule in s. NR 756.04 (2) (a), including a plan and compliance schedule that contains scheduled actions, an engineering analysis, and 5-year inspection criteria. -Financial assurance requirements under s. NR 756.04 (2) (b) for actions listed within the plan and compliance schedule and for events that may occur and affect the completion of the goals of the plan and compliance schedule or the protectiveness of the engineering control remedy. -Length of time requirements, submittal requirements, authorized department responses, fees, and inspections under s. NR 756.04 (3) to (6). -Continuing obligation responsibilities and department access authority at affected sediment sites under s. NR 756.05. -Allowable methods of providing proof of financial responsibility under s. NR 756.06. -Procedures for estimating financial assurance costs and calculating the financial assurance amount under ss. NR 756.07 and 756.08. -Policies and procedures for changing financial assurance methods and submitting annual adjustments under ss. NR 756.09 and 756.10. -Policies and procedures for default on commitments under the plan and compliance schedule, for bankruptcy, compliance, and the release of funds under ss. NR 756.11 to 756.14.
The proposed ch. NR 758 provides guidance, forms, and procedures for changes relating to environmental insurance and financial assurance requirements for contaminated sediment sites in the VPLE program. The chapter includes: -Purpose and applicability provisions and definitions for the chapter in ss. NR 758.01 to 758.05. -Insurance requirements for either the use of a state insurance contract or an individual policy under s. NR 758.07. -Procedures and policies for calculating the amount of the insurance coverage, the length of insurance, the amount of the deductible, and proof of insurance under ss. NR 758.09 to 758.12. -Options for using financial assurance methods other than insurance under s. NR 758.13. -Procedures and criteria for waiver of the insurance requirement under s. NR 758.15. -Conditions for the issuance of a VPLE certificate of completion under s. NR 758.19 and the policy for failure to satisfy the conditions under s. NR 758.21. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
Many of the proposed rule revisions are clarifications or updates that are specific to Wisconsin’s response action process and are not readily comparable to federal approaches; however, available comparisons are provided below.
Implementation of 2015 Wis. Act 204 requirements for financial responsibility at contaminated sediment sites. There are no federal regulations that address the specific activities to be regulated by the proposed rules; however, there are related federal regulations that require financial assurance in some cases for sites that are being processed under federal laws.
-Sites being cleaned up under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Superfund process or sites using the Superfund alternatives process may be required to provide financial assurance in a settlement agreement or order. There are no federal regulations that apply to this specific subject; however, EPA has issued guidelines and have general investigation and remedial action regulations as part of the Superfund National Contingency Plan.
-The Resource Conservation and Recovery Act (RCRA) requires all hazardous waste treatment, storage and disposal facilities to demonstrate that they will have the financial resources to properly close the facility or unit when its operational life is over or provide the appropriate emergency response in the case of an accidental release. These financial assurance requirements are found at 40 C.F.R., Part 264, Subpart H, and Part 265, Subpart H. -RCRA has rules that require financial assurance for Corrective Action sites that are found in 40 C.F.R., s. 264.101 (b) and (c). 7. Comparison with Similar Rules in Adjacent States:
Many of the proposed rule revisions are clarifications or updates that are specific to Wisconsin’s remediation process and are not readily comparable to other state approaches; however, available comparisons are provided below.
Implementation of 2015 Wis. Act 204 requirements for financial responsibility at contaminated sediment sites. There are no regulations at this time within Michigan, Minnesota, Illinois, or Iowa that address the specific activities to be regulated by the proposed rules; however, there are related requirements in certain states:
-The state of Michigan, under Part 201 of Natural Resources and Environmental Protection Act (Act 451) of 1994, requires financial assurance as part of proposed post-closure agreements that are submitted as part of a “no further action report” following a remedial action. The financial assurance covers the costs of monitoring, operation and maintenance, oversight, and other costs determined by the Michigan Department of Environment, Great Lakes, and Energy to be necessary to assure the effectiveness and integrity of the remedial action (Mich. Stat. s. 324.20114d). -The state of Iowa, under Iowa Code Chapter 455H, the Iowa Land Recycling and Environmental Remediation Standards Act, may require financial assurance from those participating in its voluntary Iowa Land Recycling Program. The director of the Iowa Department of Natural Resources may require reasonable proof of financial assurance for a technological control to ensure that it remains effective. The requirement is in statute (Iowa Stats. s. 455H.206 and Iowa Administrative Code s. 137.7(1)). Minnesota, Illinois, Iowa, and Michigan all have adopted statutes or rules governing financial responsibility requirements for solid waste facility, hazardous waste facility, or corrective action sites or facilities as part of their respective delegations of authority to implement RCRA at the state level.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
Implementation of 2015 Wis. Act 204 requirements for financial responsibility at contaminated sediment sites. The policies, procedures, and methods for meeting financial assurance requirements under ch. NR 756, relating to financial assurance for sites with engineering controls, are based, in part, on the policies and procedures for financial assurance requirements for solid waste facilities under Wis. Stat. s. 289.41 and ch. NR 520, Wis. Adm. Code. These solid waste regulations are derived from federal requirements. During the public meetings that the department held to gather input during rule drafting, these regulations received positive evaluations from both internal department staff and external customers that have experience in administering and meeting these requirements. 9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The program requested estimates from various environmental consulting firms located in Wisconsin regarding the impact of rule revisions on the costs of consulting services needed to meet revised requirements under the NR 700 rule series. This data was supplemented with Bureau of Remediation and Redevelopment Tracking System (BRRTS) data and department staff expertise.
10. Effect on Small Business (initial regulatory flexibility analysis):
Rule revisions are not anticipated to cause small businesses to incur new costs, except in cases where the small business is a responsible party. Small businesses that are responsible for a hazardous substance discharge may be affected by revisions relating to interim action requirements, fees, and semi-annual reporting requirements. While the department does not have a defined data set for small business, staff conservatively estimates that 30% or fewer responsible parties are small businesses. In this case, the total annual statewide costs to small business may range from $352,953 to $624,386.
11. Agency Contact Persons:
Michael Prager – RR/5
Land Recycling Team Leader
Department of Natural Resources
101 S. Webster Street
Madison, WI 53703
(608) 261-4927
Molly Schmidt – RR/5
Department of Natural Resources
101 S. Webster Street
Madison, WI 53703
(608) 267-7500
12. Place where comments are to be submitted and deadline for submission:
Section 1 Chapter NR 756 is created to read: Financial Responsibility at Contaminated Sediment Sites with Engineering Controls
