LRB-4282/1
RNK&MCP:kjf
2015 - 2016 LEGISLATURE
January 8, 2016 - Introduced by Senators Cowles,
Lassa, Hansen, Lasee,
Petrowski and Tiffany, cosponsored by Representatives Tittl,
Genrich,
Berceau, Czaja, Jacque, Kahl, Macco, Ohnstad, A. Ott, Petryk, Shankland,
Sinicki, Steffen, Subeck, Swearingen and Nygren. Referred to Committee on
Natural Resources and Energy.
SB545,1,12
1An Act to renumber and amend 292.12 (1) (c) and 292.15 (2) (am);
to amend
2289.31 (10), 292.12 (1) (a), 292.12 (2) (intro.), 292.12 (3) (a), 292.12 (3) (b) 1.,
3292.12 (4), 292.12 (5) (title), 292.12 (5) (a), 292.12 (5) (b), 292.12 (6), 292.15 (2)
4(a) (intro.), 292.15 (2) (b) (intro.), 292.15 (2) (b) 1., 292.15 (2) (b) 2., 292.15 (2)
5(b) 3., 292.15 (2) (b) 5., 292.15 (2) (c), 292.15 (2) (e), 292.25 (1) (e) and 292.68 (1)
6(b); and
to create 292.01 (1s), 292.01 (17g), 292.01 (17m), 292.12 (2) (d), 292.12
7(5) (c), 292.12 (5) (d), 292.12 (5m), 292.15 (2) (af), 292.15 (2) (am) 2m., 292.15
8(2) (d), 292.15 (6m), 292.15 (7) (f) and 292.25 (1) (f) of the statutes;
relating to:
9action required to be taken in response to a discharge of hazardous substances,
10exemption from liability for certain hazardous substance discharges, providing
11an exemption from emergency rule procedures, and granting rule-making
12authority.
Analysis by the Legislative Reference Bureau
This bill makes changes to the requirements that apply if residual
contamination remains on a property after a hazardous substance cleanup is
completed. The bill also creates requirements for obtaining a liability exemption
relating to contaminated sediment.
Current law generally requires a person who possesses or controls a hazardous
substance that has been discharged or who causes the discharge of a hazardous
substance to restore the environment to the extent practicable and minimize the
harmful effects from the discharge. Generally, the Department of Natural Resources
(DNR) is the agency that administers the laws with respect to discharges of
hazardous substances, although the Department of Agriculture, Trade and
Consumer Protection (DATCP) has authority to require a person who discharges an
agricultural chemical to take necessary corrective action.
Sites with residual contamination after cleanup
This bill makes changes to the requirements that apply if residual
contamination remains on a property after a hazardous substance cleanup is
completed.
Under current law, DNR or DATCP may impose certain requirements as a
condition of approving a cleanup of a hazardous substance discharge or issuing a case
closure letter if residual contamination remains on a property after the conclusion
of a cleanup. Under current law the agency may require 1) maintenance of an
engineering control on the property; 2) investigation and, if necessary, additional
remedial action if a structure is removed that had prevented a complete investigation
or remedial action at the property; and 3) any other limitations or conditions related
to the property to protect public health, safety, and welfare and the environment, and
to promote economic development. An engineering control is an object or action that
is designed to contain contamination or minimize the spread of contamination, such
as a cap or a soil cover. Under the bill, an engineering control does not include a
sediment cover, which is a layer of uncontaminated sand or similar material that is
deposited on top of contaminated sediment. Under current law, the property owner
is responsible for maintaining the engineering control and conducting additional
investigation or remedial action, unless there is an agreement in place for someone
else to do so. Either the property owner or a person who occupies the property is
responsible for complying with any other limitations or conditions that the agency
imposes on the property.
Under this bill, DNR or DATCP may impose additional requirements as a
condition of approving remedial action or of issuing a case closure letter if a person
is required to clean up contaminated sediment or a discharge of a hazardous
substance that resulted in contaminated sediment, and the person uses an
engineering control to address residual contamination remaining on the property.
If the person uses an engineering control, the agency may require that the person
submit a plan and schedule for complying with any of the requirements, limitations,
or conditions imposed by the agency, and proof of financial responsibility sufficient
to pay the costs of implementing that plan. In addition, under the bill a person who
uses an engineering control in a contaminated sediment cleanup must comply with
the requirements, limitations, or conditions imposed by the agency regardless of
whether the person owns or occupies the property where the engineering control is
located, unless there is an agreement in place for someone else to do so. If that person
does not own or occupy the property where the engineering control is located, the
person must obtain access to that property to allow the engineering control to be
inspected and maintained, and, if necessary, for the engineering control and any
remaining contaminated sediment to be removed.
This bill also provides that, if a person owns property from which a hazardous
substance discharge resulting in contaminated sediment originated, that person is
not required to comply with any requirements imposed by DNR or DATCP in relation
to any other property that is affected by that discharge if 1) the environment has been
satisfactorily restored to the extent practicable and the harmful effects from the
discharge have been minimized; 2) the person is a bona fide prospective purchaser;
and 3) another person has entered into an agreement to comply with the
requirements imposed by the agency for the affected property and demonstrates the
financial ability to do so. A bona fide prospective purchaser is someone who did not
own or control the property at the time of the discharge, and who is not affiliated in
any way with the person who caused the discharge.
Voluntary party liability exemption for contaminated sediment cleanup
This bill creates requirements for obtaining a liability exemption relating to
contaminated sediment.
Under current law, if there are hazardous substances on a property, or if a
discharge of hazardous substances originated from a property, a person (voluntary
party) may be exempt from liability for restoring the environment, and from the
requirements of other laws relating to hazardous substances, with respect to those
hazardous substances if the voluntary party complies with certain requirements.
This exemption is known as a voluntary party liability exemption (VPLE). In
general, to qualify for a VPLE 1) an environmental investigation of the property must
be conducted; 2) the environment must be restored and the harmful effects of the
discharge minimized according to rules promulgated by DNR; 3) DNR must issue a
certificate of completion stating that the cleanup has been satisfactorily completed;
and 4) if the voluntary party owns or controls the property, the voluntary party must
maintain and monitor the property according to rules promulgated by DNR.
This bill creates a separate set of requirements for obtaining a VPLE if there
is contaminated sediment on a property from a discharge of hazardous substances
on or originating from a property. Under the bill, to qualify for a VPLE in that
situation 1) an environmental investigation of the property must be conducted; 2) the
voluntary party must remove all or part of the contaminated sediment and address
any remaining contaminated sediment in a manner approved by the department,
such that the environment is restored and the harmful effects of the discharge are
minimized; 3) DNR must issue a certificate of completion stating that the cleanup
has been satisfactorily completed; 4) if the voluntary party owns or controls the
property, the voluntary party must maintain and monitor the property in a manner
required by DNR; 5) the voluntary party must obtain insurance to cover the cost of
the cleanup in the event that additional remedial action is necessary, unless DNR
waives the insurance requirement; and 6) if the voluntary party owns or controls the
property, the voluntary party must allow DNR and certain other interested parties
to enter the property to determine whether additional remedial action is necessary.
Under the bill, a VPLE is not available for a property where an engineering
control is used as a remedial action to address contaminated sediment.
Voluntary party liability exemption for partial cleanup
This bill creates additional requirements for obtaining a liability exemption for
a partial cleanup relating to contaminated sediment.
Under current law, a voluntary party that conducts a partial cleanup of
hazardous substances may be exempt from liability for restoring the environment
with respect to those hazardous substances, but not from the requirements of other
laws relating to hazardous substances. A voluntary party may qualify for this partial
VPLE if 1) public health, safety, or the environment will not be endangered by the
remaining hazardous substances; 2) the activities associated with any proposed use
or development of the property will not aggravate the discharge; and 3) the owner
of the property agrees to cooperate with DNR in addressing the remaining hazardous
substances.
This bill provides that, if there is contaminated sediment in addition to
contaminated soil or contaminated soil and groundwater on a property from a
discharge of hazardous substances on or originating from a property, a partial VPLE
may only be provided with respect to the hazardous substances in the soil, or in the
soil and groundwater. The bill also creates additional requirements for obtaining a
partial VPLE in this situation. In addition to the requirements listed above 1) an
environmental investigation of the property must be conducted; 2) the voluntary
party must agree to restore the environment to the extent practicable in relation to
the contaminated sediment; and 3) the voluntary party must provide proof of
financial responsibility sufficient to cover the cost of restoring the environment to the
extent practicable in relation to the contaminated sediment.
Other
Current law prohibits the Department of Justice (DOJ) from initiating an
action under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA) against a person who has obtained a VPLE to recover
costs for which that person is exempt. This bill also prohibits DOJ from initiating
an action under certain other federal regulations against a person who has obtained
a VPLE to recover damages to natural resources resulting from a discharge for which
that person is exempt.
In addition, the bill prohibits DNR from requiring a person who has obtained
a VPLE relating to contaminated sediment from taking additional remedial action
with respect to the contaminated sediment or discharge covered by the VPLE for the
purpose of complying with a federally approved total maximum daily load (TMDL)
requirement for a body of water. A TMDL is the maximum amount of a pollutant that
a body of water can receive and still meet water quality standards.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB545,1
1Section
1. 289.31 (10) of the statutes is amended to read:
SB545,5,62
289.31
(10) Voluntary party certificate of completion. When the
3department issues a certificate of completion under s. 292.15 (2) (a) 3., (ae) 3.,
(af) 3., 4or (ag) 2. for all or a portion of a solid waste facility with an operating license under
5this section, the operating license for the solid waste facility or the portion of the solid
6waste facility covered by the certificate of completion is terminated.
SB545,2
7Section
2. 292.01 (1s) of the statutes is created to read:
SB545,5,98
292.01
(1s) "Contaminated sediment" means sediment that contains a
9hazardous substance.
SB545,3
10Section
3. 292.01 (17g) of the statutes is created to read:
SB545,5,1411
292.01
(17g) "Sediment" means particles in the bed of a navigable water up to
12the ordinary high-water mark that are derived from the erosion of rock, minerals,
13soil, and biological materials and from chemical precipitation from the water column
14and that are transported or deposited by water.
SB545,4
15Section
4. 292.01 (17m) of the statutes is created to read:
SB545,5,1716
292.01
(17m) "Sediment cover" means a layer of uncontaminated sand or
17similar material that is deposited on top of contaminated sediment.
SB545,5
18Section
5. 292.12 (1) (a) of the statutes is amended to read:
SB545,6,219
292.12
(1) (a) "Agency with administrative authority" means the department
20of agriculture, trade and consumer protection with respect to a site over which it has
1jurisdiction under s. 94.73 (2) or the department of natural resources with respect
2to a site over which it has jurisdiction under
s. 292.11 (7) ch. 289, 291, or 292.
SB545,6
3Section
6. 292.12 (1) (c) of the statutes is renumbered 292.01 (3m) and
4amended to read:
SB545,6,85
292.01
(3m) "Engineering control" means an
object or action designed and
6implemented to contain contamination or to minimize the spread of contamination,
7including a cap
or, soil cover
, or in-place stabilization, but not including a sediment
8cover.
SB545,7
9Section
7. 292.12 (2) (intro.) of the statutes is amended to read:
SB545,6,1410
292.12
(2) Agency authority. (intro.) The agency with administrative
11authority may do any of the following as a condition of approving
an interim action,
12as defined by the agency with administrative authority by rule, or a remedial action
13or of issuing a case closure letter if residual contamination remains on a site after
14the conclusion of
an interim action or a remedial action at the site:
SB545,8
15Section
8. 292.12 (2) (d) of the statutes is created to read:
SB545,6,1816
292.12
(2) (d) If the site is one for which a person is required to take action
17under sub. (5m) (a), require submission to the agency with administrative authority
18of any of the following:
SB545,6,2019
1. A satisfactory plan and compliance schedule for satisfying any requirements
20imposed under par. (a) or (b).
SB545,6,2321
2. Proof of financial responsibility, as determined by the agency with
22administrative authority by rule, sufficient to pay the costs of complying with a plan
23approved under subd. 1.
SB545,9
24Section
9. 292.12 (3) (a) of the statutes is amended to read:
SB545,7,9
1292.12
(3) (a) The department shall maintain a database listing sites for which
2an interim action that includes the use of an engineering control or a remedial action
3has been approved or a case closure letter has been issued and that have residual
4contamination and listing sites for which the department has directed that action be
5taken under s. 292.11 (9) (e) 4. The department shall make the database available
6to the public. The department shall include any requirements, limitations, or
7conditions imposed under sub. (2) (a) to (c)
, and any information required under sub.
8(2) (d), in the database, subject to modification under sub. (6), and shall include any
9action that the department has directed to be taken under s. 292.11 (9) (e) 4.
SB545,10
10Section
10. 292.12 (3) (b) 1. of the statutes is amended to read:
SB545,7,2011
292.12
(3) (b) 1. If residual contamination remains on a site after the conclusion
12of
an interim action that includes the use of an engineering control or a remedial
13action at the site, the agency with administrative authority shall request the
14department to list the site, and any requirements, limitations, or conditions imposed
15under sub. (2) (a) to (c)
, and any information required under sub. (2) (d), in the
16database maintained by the department under par. (a) and, as a condition of
17approving remedial action or of issuing a case closure letter, shall require the person
18requesting approval of remedial action or case closure to provide the information
19necessary for the listing and to pay a fee established by the department for the
20listing.
SB545,11
21Section
11. 292.12 (4) of the statutes is amended to read:
SB545,8,222
292.12
(4) Notification of residual contamination. Before a person applies
23for case closure for a site that includes any property that has residual contamination
24and is not owned by the person, the person shall provide written notification of the
25residual contamination to the owner of that property. The person shall include in the
1notice, at a minimum, a description of the type of residual contamination and the
2location and description of any engineering control
or sediment cover on the site.
SB545,12
3Section
12. 292.12 (5) (title) of the statutes is amended to read:
SB545,8,54
292.12
(5) (title)
Compliance with requirements and limitations and
5prohibition on interference.
SB545,13
6Section
13. 292.12 (5) (a) of the statutes is amended to read:
SB545,8,127
292.12
(5) (a)
A Except as provided in par. (c) and sub. (5m) (a) and (b), a person
8who owns property, including a property or site that is listed under sub. (3) (b), shall
9comply with
the requirements described in sub. (2) (a)
or and (b) that are imposed
10by an agency with administrative authority without regard to when the person
11obtained the property
, unless another person has a legally enforceable responsibility
12to comply with the requirements.
SB545,14
13Section
14. 292.12 (5) (b) of the statutes is amended to read:
SB545,8,1814
292.12
(5) (b)
A Except as provided in par. (c) and sub. (5m) (a) and (b), a person
15who owns or occupies property, including a property or site that is listed under sub.
16(3) (b), shall comply with
the limitations or conditions described in sub. (2) (c) that
17are imposed by an agency with administrative authority without regard to when the
18person obtained or occupied the property.
SB545,15
19Section
15. 292.12 (5) (c) of the statutes is created to read:
SB545,8,2520
292.12
(5) (c) If another person has entered into and is complying with a legally
21enforceable agreement to comply with any of the requirements, limitations, or
22conditions described in sub. (2) (a) to (c) that are applicable to the property and the
23agreement is included in the database maintained under sub. (3), the person who
24owns or occupies the property is not required to comply with the requirements,
25limitations, or conditions included in that agreement.
SB545,16
1Section
16. 292.12 (5) (d) of the statutes is created to read:
SB545,9,42
292.12
(5) (d) A person who owns or occupies property, including a property or
3site that is listed under sub. (3) (b), may not interfere with another person's actions
4on the property that are required under sub. (2) (a) to (c).
SB545,17
5Section
17. 292.12 (5m) of the statutes is created to read: