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SS 114-18

Department of Natural Resources (NR)

Administrative Code Chapter Group Affected:

Chs. NR 700-799; Environmental Protection – Investigation and Remediation of Environmental Contamination

Administrative Code Chapters Affected:

Ch. NR 700 (Revised)

Ch. NR 702 (Revised)

Ch. NR 704 (Revised)

Ch. NR 706 (Revised)

Ch. NR 708 (Revised)

Ch. NR 712 (Revised)

Ch. NR 714 (Revised)

Ch. NR 718 (Revised)

Ch. NR 720 (Revised)

Ch. NR 722 (Revised)

Ch. NR 724 (Revised)

Ch. NR 725 (Revised)

Ch. NR 726 (Revised)

Ch. NR 727 (Revised)

Ch. NR 728 (Revised)

Ch. NR 730 (Revised)

Ch. NR 732 (Revised)

Ch. NR 734 (Revised)

Ch. NR 736 (Revised)

Ch. NR 738 (Revised)

Ch. NR 746 (Revised)

Ch. NR 747 (Revised)

Ch. NR 749 (Revised)

Ch. NR 750 (Revised)

Ch. NR 754 (Revised)

Related to: Implementation of 2015 Wisconsin Act 204 and 2017 Wisconsin Act 70, contaminated sediment usability, and other changes needed to update, clarify, and promote consistency within chs. NR 700 through NR 754, Wis. Adm. Code, including, but not limited to, application of the code to contaminated sediment sites

Date Statement Approved by Governor: November 9, 2018

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Statement of Scope
Department of Natural Resources
Rule No.:
RR-10-17
Relating to:
Implementation of 2015 Wisconsin Act 204 and 2017 Wisconsin Act 70, contaminated sediment usability, and other changes needed to update, clarify, and promote consistency within chs. NR 700 through NR 754, Wis. Adm. Code, including, but not limited to, application of the code to contaminated sediment sites.
Rule Type:
Permanent
1. Finding/nature of emergency (Emergency Rule only):
The rules will be proposed as permanent rules.
2. Detailed description of the objective of the proposed rule:
The proposed rule changes will address three topics within the Wisconsin Administrative Code NR 700 rule series: changes needed as a result of 2015 Wisconsin Act 204 (“Act 204”), changes needed as a result of 2017 Wisconsin Act 70 (“Act 70”), and code clarifications and updates.
Act 204 and contaminated sediments: The goal of the proposed revisions to code will be to achieve consistency with 2015 Wisconsin Act 204 (“Act 204”) and to provide sufficient clarifications, guidance, and procedures for those seeking to comply with the new requirements. Additionally, in consideration of Act 204 and the application of ch. 292, Wis. Stats., to contaminated sediment sites, the proposed rule revisions will aim to clarify the application of several code processes and requirements to contaminated sediment, as well as revisions to specific code provisions that refer directly to various other media (e.g., soil, groundwater).
Act 204 amended ch. 292, Wis. Stats., 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, DNR may require submission of a plan and compliance schedule and proof of financial responsibility for the maintenance of an engineering control and/or the investigation and remediation of residual contamination following the removal of a structural impediment. The act established access requirements and the responsibilities of owners of properties with contaminated sediment and conditions under which they are not liable for off-site contamination. The act created the opportunity for persons to obtain the Voluntary Party Liability Exemption (VPLE) for sites with contaminated sediments, and imposed insurance and financial assurance requirements on contaminated sediment sites enrolled in the VPLE. It also outlined special conditions for partial cleanup approvals at VPLE properties with contaminated sediment.
Act 204 also made several other modifications to the law that relate to all types of contaminated media. The act established that the department can require continuing obligations for interim remedial actions for any type of contaminated site, not just contaminated sediment sites, and it modified requirements regarding information to be included in the public database established in s. 292.12(3), Wis. Stats.
Act 204 and contaminated sediments rule revisions: Rule revisions to reflect statutory changes made by Act 204 will include modifications and additions to code chapters within Wisconsin Administrative Code, including, but not limited to:
- NR 700 to reflect definitions added by statute or needed to clarify statutory changes;
- NR 708 to provide clarifications and procedures for new requirements regarding continuing obligations for interim actions, database listings, fees, and noninterference and other responsibilities of owners of sites with contaminated sediments;
- NR 714 to ensure that code clearly communicates new requirements relating to continuing obligations, database requirements, and submittal of third party agreements;
- NR 716 to clarify terms needed to interpret code with respect to new requirements and definitions;
- NR 718 to clarify interpretation of new requirements for interim actions and continuing obligations regarding management of contaminated soil or excavated solid wastes;
- NR 722 to provide guidance, procedures, requirements and forms related to new requirements for database entries, maintenance and monitoring plans for engineering controls and structural impediment removals at sites where an engineering control is being used to address contaminated sediments, and respective financial responsibility requirements, and to provide guidance and procedures relating to Act 204 requirements regarding non-interference and other responsibilities of property owners with regard to engineering controls;
- NR 725 to provide consistency, clarifications, procedures, requirements, and forms related to new requirements for database entry and notification at sites with contaminated sediment;
- NR 725, NR 726, NR 727 to provide clarifications, procedures, requirements and forms related to new requirements relating to maintenance, non-interference, and responsibilities of property owners and tenants; submittal of third party agreements; and the liability of various parties for contaminated sediment sites;
- NR 725, NR 727 to provide clarifications, guidance, procedures, requirements and forms related to new requirements regarding continuing obligations for interim actions;
- NR 750 to provide clarity, guidance, forms, and procedures relating to contaminated sediment sites, VPLE partial certificates of closure, conditions for VPLE partial cleanup approval; and
- NR 754 to clarify that the chapter applies to natural attenuation VPLE projects only.
Rule revisions will also include the creation of new chapter NR 756 to provide clarity, guidance, forms, and procedures for changes relating to financial responsibility for engineering controls and for addressing contamination if a structural impediment is removed; and the creation of new chapter NR 758 to provide clarity, guidance, forms, and procedures for changes relating to environmental insurance and financial assurance requirements for contaminated sediment sites in the VPLE program, including those receiving partial certificates of closure.
Rule revisions will also clarify interpretation of the following code chapters with respect to Act 204 changes and the application of ch. 292, Wis. Stats., to contaminated sediment: chs. NR 700, NR 708, NR 716, NR 722, NR 724, NR 725, NR 726, and NR 727, Wis. Adm. Code. Changes will include, but are not limited to: revised or added definitions, and the clarification of exposure assumptions for sediments. Rule revisions may include any other revisions necessary to effectuate Act 204 and clarify the application of chs. NR 700 through NR 754, Wis. Adm. Code, to sites with contaminated sediments.
Act 70: The goals of the proposed revisions to code will be to provide consistency and direction regarding 2017 Wisconsin Act 70 (“Act 70”). Act 70 revised provisions within ch. 292, Wis. Stats., that affect the VPLE program. The act clarified which properties are eligible for a VPLE and created a new process for property boundary changes that may occur following application.
Act 70 rule revisions: Rule revisions will include amendments to chs. NR 700, 750 and NR 754, Wis. Adm. Code, as necessary to provide clarity and consistency with Act 70, including a new definition of "property" as used in the VPLE program, and new requirements and procedures for property boundary changes in the VPLE program. Rule revisions may include any other revisions necessary to effectuate Act 70.
Code clarifications and updates: The goal of the third category of changes is to provide minor updates, clarifications and modifications to various sections of the rule series as described below. Over time, recurring issues with unclear portions of code have become evident. Revisions are needed to code provisions where better clarity, simplification, further direction, or revised requirements will result in better guidance for users and more efficient administration of the site investigation and cleanup process. The last modifications to the NR 700 rule series includes adjustments to revisions that took effect in 2013. Objectives include clarifying timeframes for when required items must be completed, providing fees for specific technical assistance items that are not listed, and providing cross-references when appropriate. Objectives also include clarifying procedures for submitting documents, storing data, and submitting payments beyond what is allowed by code.
Code clarifications and updates rule revisions: Rule revisions will include changes or additions to code chapters, including, but not limited to:
- NR 700 to clarify and update definitions and procedures for submitting documents;
- NR 712 to clarify the requirements for submittal preparation in NR 712.07;
- NR 714 to clarify and update portions of the chapter regarding methods of notifying the public;
- NR 716 to clarify and update methods of submitting various reports and other information required under code, including changes regarding sample results notification requirements, and to clarify and achieve consistency with 2018 revisions to chapter NR 149, Laboratory Certification and Registration, including revisions to definitions;
- NR 718 to remove code provisions relating to soil management practices no longer in use;
- NR 718, NR 708, NR 722, and NR 724 to include cross-references between portions of code regarding documentation of soil management;
- NR 720 and NR 722 to include cumulative approach and background considerations for PAH contaminants; include a reference EPA exposure values; and to cross-reference other portions of code where standard exposure assumptions are found;
- NR 724 to clarify when confirmation samples are required following remedial action;
NR 725 and NR 726 to revise notification requirements for off-site properties with groundwater contamination and relation to NR 812;
- NR 726 to reflect updates to terminology; clarify and update the methods and requirements for submitting closure requests and forms, and case closure response action goals; and
- NR 749 to provide clarity and flexibility regarding payment of fees, including, but not limited to fees for enforcement-related submittals, contracts under ch. 292.31, Wis. Stats., and database entries; and to clarify the disposition of fees for incomplete closure requests and their application to other submittals required by code.
 
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