SB545: Bill Text

LRB-4282/1

RNK&MCP:kjf

2015 - 2016 LEGISLATURE

2015 Senate BILL 545

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 An Act to renumber and amend 292.12 (1) (c) and 292.15 (2) (am); to amend 289.31 (10), 292.12 (1) (a), 292.12 (2) (intro.), 292.12 (3) (a), 292.12 (3) (b) 1., 292.12 (4), 292.12 (5) (title), 292.12 (5) (a), 292.12 (5) (b), 292.12 (6), 292.15 (2) (a) (intro.), 292.15 (2) (b) (intro.), 292.15 (2) (b) 1., 292.15 (2) (b) 2., 292.15 (2) (b) 3., 292.15 (2) (b) 5., 292.15 (2) (c), 292.15 (2) (e), 292.25 (1) (e) and 292.68 (1) (b); and to create 292.01 (1s), 292.01 (17g), 292.01 (17m), 292.12 (2) (d), 292.12 (5) (c), 292.12 (5) (d), 292.12 (5m), 292.15 (2) (af), 292.15 (2) (am) 2m., 292.15 (2) (d), 292.15 (6m), 292.15 (7) (f) and 292.25 (1) (f) of the statutes; relating to: action required to be taken in response to a discharge of hazardous substances, exemption from liability for certain hazardous substance discharges, providing an exemption from emergency rule procedures, and granting rule-making authority.

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 Section 1. 289.31 (10) of the statutes is amended to read:

SB545,5,6 289.31 (10) Voluntary party certificate of completion. When the department issues a certificate of completion under s. 292.15 (2) (a) 3., (ae) 3., (af) 3., or (ag) 2. for all or a portion of a solid waste facility with an operating license under this section, the operating license for the solid waste facility or the portion of the solid waste facility covered by the certificate of completion is terminated.

SB545,2 Section 2. 292.01 (1s) of the statutes is created to read:

SB545,5,9 292.01 (1s) "Contaminated sediment" means sediment that contains a hazardous substance.

SB545,3 Section 3. 292.01 (17g) of the statutes is created to read:

SB545,5,14 292.01 (17g) "Sediment" means particles in the bed of a navigable water up to the ordinary high-water mark that are derived from the erosion of rock, minerals, soil, and biological materials and from chemical precipitation from the water column and that are transported or deposited by water.

SB545,4 Section 4. 292.01 (17m) of the statutes is created to read:

SB545,5,17 292.01 (17m) "Sediment cover" means a layer of uncontaminated sand or similar material that is deposited on top of contaminated sediment.

SB545,5 Section 5. 292.12 (1) (a) of the statutes is amended to read:

SB545,6,2 292.12 (1) (a) "Agency with administrative authority" means the department of agriculture, trade and consumer protection with respect to a site over which it has jurisdiction under s. 94.73 (2) or the department of natural resources with respect to a site over which it has jurisdiction under s. 292.11 (7) ch. 289, 291, or 292.

SB545,6 Section 6. 292.12 (1) (c) of the statutes is renumbered 292.01 (3m) and amended to read:

SB545,6,8 292.01 (3m) "Engineering control" means an object or action designed and implemented to contain contamination or to minimize the spread of contamination, including a cap or, soil cover, or in-place stabilization, but not including a sediment cover.

SB545,7 Section 7. 292.12 (2) (intro.) of the statutes is amended to read:

SB545,6,14 292.12 (2) Agency authority. (intro.) The agency with administrative authority may do any of the following as a condition of approving an interim action, as defined by the agency with administrative authority by rule, or a remedial action or of issuing a case closure letter if residual contamination remains on a site after the conclusion of an interim action or a remedial action at the site:

SB545,8 Section 8. 292.12 (2) (d) of the statutes is created to read:

SB545,6,18 292.12 (2) (d) If the site is one for which a person is required to take action under sub. (5m) (a), require submission to the agency with administrative authority of any of the following:

SB545,6,20 1. A satisfactory plan and compliance schedule for satisfying any requirements imposed under par. (a) or (b).

SB545,6,23 2. Proof of financial responsibility, as determined by the agency with administrative authority by rule, sufficient to pay the costs of complying with a plan approved under subd. 1.

SB545,9 Section 9. 292.12 (3) (a) of the statutes is amended to read:

SB545,7,9 292.12 (3) (a) The department shall maintain a database listing sites for which an interim action that includes the use of an engineering control or a remedial action has been approved or a case closure letter has been issued and that have residual contamination and listing sites for which the department has directed that action be taken under s. 292.11 (9) (e) 4. The department shall make the database available to the public. The department shall include any requirements, limitations, or conditions imposed under sub. (2) (a) to (c), and any information required under sub. (2) (d), in the database, subject to modification under sub. (6), and shall include any action that the department has directed to be taken under s. 292.11 (9) (e) 4.

SB545,10 Section 10. 292.12 (3) (b) 1. of the statutes is amended to read:

SB545,7,20 292.12 (3) (b) 1. If residual contamination remains on a site after the conclusion of an interim action that includes the use of an engineering control or a remedial action at the site, the agency with administrative authority shall request the department to list the site, and any requirements, limitations, or conditions imposed under sub. (2) (a) to (c), and any information required under sub. (2) (d), in the database maintained by the department under par. (a) and, as a condition of approving remedial action or of issuing a case closure letter, shall require the person requesting approval of remedial action or case closure to provide the information necessary for the listing and to pay a fee established by the department for the listing.

SB545,11 Section 11. 292.12 (4) of the statutes is amended to read:

SB545,8,2 292.12 (4) Notification of residual contamination. Before a person applies for case closure for a site that includes any property that has residual contamination and is not owned by the person, the person shall provide written notification of the residual contamination to the owner of that property. The person shall include in the notice, at a minimum, a description of the type of residual contamination and the location and description of any engineering control or sediment cover on the site.

SB545,12 Section 12. 292.12 (5) (title) of the statutes is amended to read:

SB545,8,5 292.12 (5) (title) Compliance with requirements and limitations and prohibition on interference.

SB545,13 Section 13. 292.12 (5) (a) of the statutes is amended to read:

SB545,8,12 292.12 (5) (a) A Except as provided in par. (c) and sub. (5m) (a) and (b), a person who owns property, including a property or site that is listed under sub. (3) (b), shall comply with the requirements described in sub. (2) (a) or and (b) that are imposed by an agency with administrative authority without regard to when the person obtained the property, unless another person has a legally enforceable responsibility to comply with the requirements.

SB545,14 Section 14. 292.12 (5) (b) of the statutes is amended to read:

SB545,8,18 292.12 (5) (b) A Except as provided in par. (c) and sub. (5m) (a) and (b), a person who owns or occupies property, including a property or site that is listed under sub. (3) (b), shall comply with the limitations or conditions described in sub. (2) (c) that are imposed by an agency with administrative authority without regard to when the person obtained or occupied the property.

SB545,15 Section 15. 292.12 (5) (c) of the statutes is created to read:

SB545,8,25 292.12 (5) (c) If another person has entered into and is complying with a legally enforceable agreement to comply with any of the requirements, limitations, or conditions described in sub. (2) (a) to (c) that are applicable to the property and the agreement is included in the database maintained under sub. (3), the person who owns or occupies the property is not required to comply with the requirements, limitations, or conditions included in that agreement.

SB545,16 Section 16. 292.12 (5) (d) of the statutes is created to read:

SB545,9,4 292.12 (5) (d) A person who owns or occupies property, including a property or site that is listed under sub. (3) (b), may not interfere with another person's actions on the property that are required under sub. (2) (a) to (c).

SB545,17 Section 17. 292.12 (5m) of the statutes is created to read:

SB545,9,11 292.12 (5m) Compliance with requirements and limitations related to contaminated sediment and prohibition on interference. (a) Notwithstanding the requirements under sub. (5) (a) and (b), and except as provided in par. (b), a person who is required to take action under s. 292.11 (3), (4), or (7) (b) with respect to contaminated sediment and who takes action that includes the use of an engineering control shall do all of the following:

SB545,9,15 1. Except as provided in par. (am), comply with the requirements, limitations, and conditions described in sub. (2) (a) to (d) that are imposed by an agency with administrative authority without regard to whether the person owns or occupies the property on which the engineering control is used.

SB545,9,19 2. If the person does not own or occupy the property on which the engineering control is used, obtain access to the property that allows for the inspection, maintenance, and reinstallation of the engineering control or the removal of the engineering control and contaminated sediment.

SB545,9,25 (am) If another person has entered into and is complying with a legally enforceable agreement to comply with any of the requirements, limitations, or conditions described in par. (a) 1. and the agreement is included in the database maintained under sub. (3), the person who is required to take action under par. (a) is not required to comply with the requirements, limitations, or conditions included in that agreement.

SB545,10,3 (ar) A person who owns or occupies property on which an engineering control is used may not interfere with another person's actions on the property that are required under par. (a).

SB545,10,7 (b) A person who owns property from which a hazardous substance was discharged is not required to comply with sub. (2) (a) to (d) with respect to any other property containing contaminated sediment as a result of that discharge if all of the following apply:

SB545,10,11 1. The agency with administrative authority determines that the environment, including sediment, has been satisfactorily restored to the extent practicable with respect to the discharge and the harmful effects from the discharge have been minimized.

SB545,10,12 2. The person is a bona fide prospective purchaser under 42 USC 9601 (40).

SB545,10,16 3. Another person has entered into and is complying with a legally enforceable agreement to comply with any of the requirements, limitations, or conditions described under sub. (2) (a) to (d) with respect to any other property containing contaminated sediment as a result of that discharge.

SB545,10,18 4. The agreement under subd. 3. is included in the database maintained under sub. (3).

SB545,10,20 5. The person submits information that the agency with administrative authority determines is adequate to substantiate that subds. 1. to 4. are satisfied.

SB545,10,24 (c) The agency with administrative authority may negotiate and enter into an agreement containing a schedule for conducting actions required under sub. (2) with any person required to take action under sub. (2) with respect to contaminated sediment.

SB545,18 Section 18. 292.12 (6) of the statutes is amended to read: