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. This insurance program is similar to the existing insurance requirement in Wis. Stat. s. 292.15 (2) (ae) 3m., which allows a voluntary party to obtain a liability exemption if the party pays for insurance for remaining groundwater contamination that will be addressed with natural attenuation. This similar requirement has been in place since 2001. The insurance is a required condition of obtaining a certificate of completion and as long as the insurance is obtained, the developer or business and future owners have the liability protection and would not be required to conduct any additional remediation in the future. Wis. Stat. s. 292.15 (2) (af) 3m. states that the voluntary party must obtain insurance to cover the cost in case additional remediation is necessary. This insurance covers the risk to the State of Wisconsin that a VPLE site would later be discovered to have additional contamination that warrants remediation. The most likely situations when additional remediation would be needed are if DNR discovers that the contamination is more extensive than initially identified when the investigation was conducted or somehow it is later discovered that the cleanup was not successful. In that scenario, DNR would file a claim on the insurance to conduct the additional remediation, and the party covered by the liability exemption would not have to conduct or fund any remedial actions.
The statutory section that authorizes the VPLE program requires that parties provide insurance as a condition of the liability exemption. Under statute, if a party obtains this liability exemption, and then fails to maintain the insurance coverage, the party would lose its liability exemption. The rule reiterates this policy to ensure that parties are aware that they must maintain coverage to retain the liability exemption. Providing this incentive to maintain insurance or other financial assurance helps protect the state taxpayers from bearing the costs of additional cleanup, if needed.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
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.
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:
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:
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 and have received positive evaluations from both internal staff and external customers that have experience in administering and meeting these requirements. The statutory emergency rulemaking process requires a public hearing following the effective date of the emergency rule. To encourage public input, DNR staff presented these rules throughout various stages of their development at five public meetings during the 14-month rule development phase of the rulemaking process. Following the receipt of comments on the emergency rule at the May 2020 meeting of the Natural Resources Board, DNR staff withdrew the emergency rule and held two additional public meetings in June and July of 2020. DNR subsequently revised the proposed emergency rule to remove provisions not explicitly authorized by the emergency rulemaking mandate in s. 36, 2015 Wis. Act 204. The department will continue to solicit input on these provisions during the permanent rule process. The permanent rule process includes solicitation of comments on the economic impact of the proposed permanent rules as well as comments on the approach chosen by the department in the proposed emergency rule. The solicitation of comments on the economic impact of the proposed permanent rule occurred between April 21, 2020, and May 21, 2020. The department is currently reviewing comments received and revising the draft economic impact analysis statement. Public hearing dates and the comment submission deadline are to be determined but are tentatively planned for fall of 2020.
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 consulting firms regarding rule revisions impacting the costs of consulting services needed to meet the new requirements. 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 affect small business.
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:
The statutory emergency rulemaking process requires a public hearing following the effective date of the emergency rule. To encourage public input, DNR staff presented these rules throughout various stages of their development at five public meetings during the 14-month rule development phase of the rulemaking process. Following the receipt of comments on the emergency rule at the May 2020 meeting of the Natural Resources Board, DNR staff withdrew the emergency rule and held two additional public meetings in June and July of 2020. DNR subsequently revised the proposed emergency rule to remove provisions not explicitly authorized by the emergency rulemaking mandate in s. 36, 2015 Wis. Act 204. Written comments may be submitted at the public hearings, by regular mail, or by email to:
Molly Schmidt – RR/5
Department of Natural Resources
101 S. Webster Street
Madison, WI 53703
(608) 267-7500
Section 1 Chapter NR 756 is created to read: Financial Responsibility at Contaminated Sediment Sites with Engineering Controls
NR 756.01 Purpose. The purpose of this chapter is to establish planning, compliance, and financial responsibility requirements for sites or facilities with contaminated sediment that rely on an engineering control to protect public health, safety, welfare, and the environment from the contaminated sediment. This chapter is adopted under s. 227.11 (2) and ch. 292, Stats. NR 756.02 Applicability. Except as otherwise provided, this chapter applies to all sites or facilities where a person who is required to take action under ch. 292, Stats., with respect to contaminated sediment, takes an interim or remedial action that includes the use of an engineering control to address the contaminated sediment. NR 756.03 Definitions. In this chapter:
(1) “Contaminated sediment engineering control” means an engineering control used to address contaminated sediment.
(2) “Event” means an occurrence that may affect the completion of the goals established in the plan and compliance schedule that are induced by either weather, or the combination of human activity and weather, including significant flood events, increased flow rates, anthropogenic induced scour, an increase in event frequency, or other events having a deleterious effect on the protectiveness of the contaminated sediment remedy.
(3) “Person required to submit proof” means a person that is required to submit proof of financial responsibility under s. NR 756.04 (1) d., including a person that has assumed responsibility under s. 292.15 (5m) (am), Stats. (4) “Proof period” means the amount of time for which proof of responsibility requirements are applicable.
(5) “Proof method” means a mechanism for providing proof of financial responsibility under s. NR 756.06. (6) “Third-party action” means activities that may affect the completion of the goals established in a plan and compliance schedule or that have a deleterious effect on the protectiveness of the contaminated sediment remedy that are taken by persons other than the person required to submit a plan and compliance schedule or proof of responsibility under this chapter.
NR 756.04 Plan and compliance schedule; financial responsibility; fees. (1) General. As a condition of approving an interim action, a remedial action, or of granting case closure, the department may require a person who is required to take action under ch. 292, Stats., with respect to contaminated sediment, and who takes action that includes the use of a contaminated sediment engineering control, to do any of the following: (a) Maintain any contaminated sediment engineering controls on the site or facility.
(b) Investigate the extent of residual contamination and perform any necessary remedial action if a structural impediment is removed that had prevented a complete investigation or remedial action at the site.
