Comparison with Federal Rules and Rules in Adjacent States – Since the NR 700 rule series has been in-place for over 15 years, this comparison focuses on the 4 most important issues addressed by the proposed rule changes. These include: 1) The Process for Establishing Soil Cleanup Standards, 2) Requirements for Addressing the Vapor Intrusion Pathway, 3) Fees for Review of Cleanup Related Documents, and 4) Regulatory Closure of Contamination Cases. Below is a summary of the issues and a comparison of Wisconsin's approach to how EPA and the adjacent states address the topic.
a. The Process for Establishing Soil Cleanup Standards – The Department's rule on soil cleanup standards allows Responsible Parties to use either soil performance standards (i.e. engineering controls) or compound specific soil cleanup values. Both options are being retained as part of the proposed revisions. The Department currently uses a process developed by EPA in the mid 1990's for determining numeric soil cleanup standards. EPA has since developed a new web calculator for determining soil cleanup standards. The proposed rule revisions utilize the new EPA methodology.
The approach for developing site specific soil cleanup standards is complex and very state specific. All of the surrounding states use EPA's risk range and compound specific toxicity information in determining soil cleanup levels. Not all states account for cumulative risk from multiple contaminants.
Each of the surrounding states have similar approaches for determining site specific soil cleanup standards although none are exactly the same. For example, all neighboring states provide values for an extensive list of compounds and those values are within the Federal excess cancer risk guidelines of 1:10,000 to 1:1,000,000. Illinois, Michigan and Minnesota rely on their Health Departments to set compound specific toxicity values, while Iowa and Wisconsin use the hierarchy established by EPA's Superfund Program.
Michigan and Illinois do not account for cumulative risk from multiple contaminants while Minnesota, Iowa and Wisconsin do. Minnesota uses a cumulative risk limit of 1:100,000 for soil exposure. Iowa allows cumulative risk up to 1:10,000 but their approach differs from the other states in that “cumulative" accounts for the aggregated exposures from contaminants in air, water and soil. In Illinois the risk posed by each individual compound can not exceed 1:1,000,000 while in Michigan individual compound risk can not exceed 1:100,000. Wisconsin uses a 1:1,000,000 excess cancer risk for individual compounds with the cumulative risk from all compounds not to exceed 1:100,000.
b. Requirements for Addressing the Vapor Intrusion Pathway – Vapor intrusion occurs when subsurface contaminants volatilize and then migrate through the soil into homes or other buildings. Assessing the vapor intrusion pathway is a relatively new issue for many states. U.S. EPA developed guidance for assessing the vapor pathway in 2002. As experience increased and additional data became available, EPA determined their guidance had several technical problems and it is currently making significant revisions. Wisconsin released draft guidance for external review last year. Feedback indicated that the guidance was technically sound and provided appropriate direction on how to evaluate the vapor intrusion pathway. The guidance was ultimately finalized in December, 2010 and training was provided to interested external parties in March, 2011.
The surrounding states have several different approaches for dealing with vapor intrusion. Michigan and Minnesota use general statutory and/or rule authority along with detailed guidance to address vapor intrusion. Illinois and Iowa don't have rules or guidance, but Illinois is in the process of developing rules. Currently, both states only address the vapor pathway when the responsible party requests assistance. Wisconsin uses an approach similar to Michigan and Minnesota's, although Wisconsin has more detailed statutory and rule authority related to vapor intrusion than either of these states.
c. Fees for Review of Cleanup Related Documents – The Department has had authority to charge fees for providing technical assistance since 1998. Fees are paid if the Responsible Party requests DNR review or other technical assistance. Most Responsible Parties request a case closure determination from the Department and pay the associated fees. Otherwise, the rule is largely self-implementing which means Responsible Parties can generally proceed without DNR approval and without paying review fees.
None of the surrounding states or EPA have a flat fee system like Wisconsin. All states have a variety of funding sources including some combination of the following: Federal grants, general purpose revenue (GPR), waste tipping fees, professional registration fees, tank registration fees and generator fees. Several of the states also charge hourly fees for the technical oversight they provide, typically for sites choosing to become part of their voluntary cleanup program. EPA is largely funded directly through the Federal budget although the Superfund Program has the ability to bill Responsible Parties for any oversight costs incurred.
d. Case Closures – The Department has the authority to issue “case closure" decisions when a responsible party has completed an investigation and cleanup in accordance with state rules. Responsible Parties typically want a letter from the regulatory agency to document that the cleanup was completed properly. In addition, case closure letters are important for property transactions so that potential purchasers are aware that any known contamination has been properly addressed.
All four of the surrounding states have authority to issue a letter indicating that cleanup of environmental contamination was completed in accordance with state standards. All of the surrounding states also rely on engineering controls to ensure the remedy remains protective into the future. States apply these controls differently and in some cases use deed restrictions, restrictive covenants or other site specific agreements to impose the necessary controls.
Since a number of the Federal cleanup programs have been delegated to the states to implement, EPA typically doesn't issue many “no further action letters". EPA uses restrictive covenants to impose engineering controls and other long-term obligations at sites where it has lead responsibility. This occurs primarily at Federal lead Superfund sites.
Several years ago the Wisconsin legislature approved changes in state law which allowed the case closure letter to be used as the legally enforceable document to impose any necessary on-going requirements such as maintaining engineering controls. This change largely did away with deed restrictions, which were used extensively in Wisconsin prior to that time. The use of GIS mapping that shows the location of all contaminated sites and our on-line database that contains the status of cleanup provides an easy and comprehensive method for tracking the status of contaminated sites.
Summary of factual data and analytical methodologies that the agency used in support of the proposed rules and how any related findings support the regulatory approach chosen for the proposed rules
Since most of the changes are legal and administrative clarifications, the Department did not conduct analysis or use specific data to support these changes to the rule. Analytical changes made include removing references to specific analytical techniques, sample containers and holding times, and replacing them with a requirement that the sampling and analytical techniques used be appropriate for the sample media and type and potential concentration of contaminant.
Any analysis and supporting documentation that the agency used in support of the agency's determination of the rule's effect on small business under s.
227.114, Stats., or that was used when the agency prepared an economic impact report
Under s.
NR 150.03(3), Wis. Adm. Code, an environmental analysis is not needed because this proposal is considered a Type III action. A Type III action is one that normally: 1) does not have the potential to cause significant environmental effects, 2) does not significantly affect energy usage and 3) does not involve unresolved conflicts in the use of available resources.
Effects on small business, including how the rule will be enforced
The major purpose of this rule making effort is to incorporate requirements set forth by statutes and to address policy changes that have been implemented over the years. Another major change is to streamline and consolidate the rule language so that out-of-date provisions are removed and the current regulatory requirements are easier to understand and comply with. As such, the promulgation of these rule changes should not have a significant impact on small businesses.
The one area of these rule revisions that have the potential to impact some small businesses is the proposal to increase the fees set out in ch.
NR 749. These fees have not been increased since they were originally promulgated in 1998 and the average increase typically ranges from $200 to $300 depending on the type of submittal. The fee increases should not affect a significant number of small businesses for several reasons. First, the NR 700 rule series is largely self-implementing which means that Responsible Parties typically decide whether or not they want agency review of the documents they prepare, and only pay a fee if a written DNR response is requested. Second, the fees are often a one-time expenditure and generally are a small percentage of the overall cost for completing a cleanup.
Environmental Analysis
The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.
Fiscal Estimate and Economic Impact Analysis Summary
The majority of changes being proposed to the existing rules will not result in a new fiscal impact. The portion of the rule that has the potential to fiscally impact businesses, utilities and local governments are the proposed fee increases set out in ch.
NR 749. These fees have not been increased since they were originally established in 1998. The proposed increases are based on cost-of-living changes and the additional revenue would be used to ensure that the 9 positions currently funded by fees could be maintained. It is estimated that the increase in fees will result in approximately $170,000/year of additional state revenue being received.
The $170,000/year was calculated by taking the amount of revenue received in FY '11, reducing it by 10% based on average annual decreases in revenue and then applying a 40% increase to account for the new fees. How these fee increases would potentially affect a typical site was determined by reviewing past history of fee related requests. This evaluation indicated that most sites do not request DNR review of any documents besides case closure and that most sites have some contamination remaining at the completion of the cleanup. It was therefore assumed that most parties responsible for completing a cleanup would request DNR review of case closure for a site that has both residual soil and groundwater contamination. In this scenario, the total increase in fee related costs would be $500. This example illustrates the most common situation and the actual cost increase will be dependent on the specific needs and requests of the Responsible Party.
The proposed fee increases should not affect most businesses or local units of government for several reasons. First, only those persons that possess or control a hazardous substance which is discharged or who cause the discharge must take action to restore the environment. Most businesses and many local governments do not have to address this situation. Second, the NR 700 rule series is largely self implementing which means that the Responsible Party typically decides whether or not they want regulatory agency review of the documents they prepare and only pay a review fee if DNR assistance is requested. Finally, the fees are often one-time expenditures and generally are only a small percentage of the overall cost for completing the cleanup.
Agency Contact Person
Mark Gordon
(608) 266-7278
