CR 20-038 Rule Text

4/7/21

The statement of scope for this rule, SS# 114-18, was approved by the Governor on November 9, 2018, published in Register No. 755A3 on November 19, 2018, and approved by the Natural Resources Board on January 23, 2019. This rule was approved by the Governor on May 13, 2021.

ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD

CREATING RULES

The Wisconsin Natural Resources Board adopts an order to create ch. NR 756 and ch. 758, relating to implementation of 2015 Wisconsin Act 204 and affecting small business.

RR-10-17

Analysis Prepared by the Department of Natural Resources

1. Statute Interpreted:

Wis. Stat. ch. 292

2. Statutory Authority:

Wis. Stat. ss. 227.11 (2), 292.12 (2) (c), 292.15 (5), 292.31 (2), and 292.94

3. Explanation of Agency Authority:

Wis. Stat. s. 227.11 (2) provides the department with authority to promulgate rules that are necessary to perpetuate the purpose of the statute. Wis. Stat. s. 292.12 (2) (c) requires the department to promulgate rules to identify limitations or other conditions related to property, to ensure that conditions at the site remain protective of public health, safety, and welfare and the environment, and, as applicable, to promote economic development. Wis. Stat. s. 292.15 (5) allows the department to assess and collect fees from a voluntary party to offset the cost of the department's activities in accordance with promulgated rules. Wis. Stat. s. 292.31 (2) requires the department to promulgate rules relating to investigation and remedial action for sites or facilities and other properties at which the air, land, or waters of the state have been affected by the discharge of a hazardous substance or other environmental pollution. Wis. Stat. s. 292.94 requires the department to promulgate rules for the assessment and collection of fees from a person who is subject to an order or other enforcement action for a violation of Wis. Stat. s. 292.11 or 292.31 to cover the costs incurred by the department to review the planning and implementation of any environmental investigation or environmental cleanup that the person is required to conduct.

Additionally, Wis. Stat. ss. 292.12 (2) (d) (2) and 292.15 (2) (af) (3m) authorize the creation of rules regarding sediment financial responsibility. Nonstatutory language within Section 36 of 2015 Wis. Act 204 required the department to promulgate these rules using the emergency rulemaking process. A portion of this permanent rule corresponds to the emergency rule that was promulgated under Section 36 of 2015 Wis. Act 204 and Wis. Stat. ss. 292.12 (2) (d) (2) and 292.15 (2) (af) (3m).

4. Related Statutes or Rules:

Wis. Stat. chs. 289, 291, and 292

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: