The state of Iowa, under Iowa Code Chapter 455H, the Iowa Land Recycling and Environmental Remediation Standards Act, may require financial assurance from those participating in its voluntary Iowa Land Recycling Program. The director of the Iowa Department of Natural Resources may require reasonable proof of financial assurance for a technological control to ensure that it remains effective. The requirement is in statute (Iowa Stats. s. 455H.206 and Iowa Administrative Code s. 137.7(1)).Minnesota, Illinois, Iowa, and Michigan all have adopted statutes or rules governing financial responsibility requirements for solid waste facility, hazardous waste facility, or corrective action sites or facilities as part of their respective delegations of authority to implement RCRA at the state level.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
The policies, procedures, and methods for meeting financial assurance requirements under ch. NR 756, relating to financial assurance for sites with engineering controls, are based, in part, on the policies and procedures for financial assurance requirements for solid waste facilities under Wis. Stat. s. 289.41 and ch. NR 520, Wis. Adm. Code. These solid waste regulations are derived from federal requirements and have received positive evaluations from both internal staff and external customers that have experience in administering and meeting these requirements. The statutory emergency rulemaking process requires a public hearing following the effective date of the emergency rule. To encourage public input, DNR staff presented these rules throughout various stages of their development at five public meetings during the 14-month rule development phase of the rulemaking process. Following the receipt of comments on the emergency rule at the May 2020 meeting of the Natural Resources Board, DNR staff withdrew the emergency rule and held two additional public meetings in June and July of 2020. DNR subsequently revised the proposed emergency rule to remove provisions not explicitly authorized by the emergency rulemaking mandate in s. 36, 2015 Wis. Act 204. The department will continue to solicit input on these provisions during the permanent rule process. The permanent rule process includes solicitation of comments on the economic impact of the proposed permanent rules as well as comments on the approach chosen by the department in the proposed emergency rule. The solicitation of comments on the economic impact of the proposed permanent rule occurred between April 21, 2020, and May 21, 2020. The department is currently reviewing comments received and revising the draft economic impact analysis statement. Public hearing dates and the comment submission deadline are to be determined but are tentatively planned for fall of 2020.
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The program requested estimates from various consulting firms regarding rule revisions impacting the costs of consulting services needed to meet the new requirements. This data was supplemented with Bureau of Remediation and Redevelopment Tracking System (BRRTS) data and department staff expertise.
10. Effect on Small Business (initial regulatory flexibility analysis):
Rule revisions are not anticipated to affect small business.
11. Agency Contact Persons:
Michael Prager – RR/5
Land Recycling Team Leader
Department of Natural Resources
101 S. Webster Street
Madison, WI 53703
(608) 261-4927
Molly Schmidt – RR/5
Department of Natural Resources
101 S. Webster Street
Madison, WI 53703
(608) 267-7500
12. Place where comments are to be submitted and deadline for submission:
The statutory emergency rulemaking process requires a public hearing following the effective date of the emergency rule. To encourage public input, DNR staff presented these rules throughout various stages of their development at five public meetings during the 14-month rule development phase of the rulemaking process. Following the receipt of comments on the emergency rule at the May 2020 meeting of the Natural Resources Board, DNR staff withdrew the emergency rule and held two additional public meetings in June and July of 2020. DNR subsequently revised the proposed emergency rule to remove provisions not explicitly authorized by the emergency rulemaking mandate in s. 36, 2015 Wis. Act 204. Written comments may be submitted at the public hearings, by regular mail, or by email to:
Molly Schmidt – RR/5
Department of Natural Resources
101 S. Webster Street
Madison, WI 53703
(608) 267-7500
Section 1 Chapter NR 756 is created to read: Financial Responsibility at Contaminated Sediment Sites with Engineering Controls
NR 756.01 Purpose. The purpose of this chapter is to establish planning, compliance, and financial responsibility requirements for sites or facilities with contaminated sediment that rely on an engineering control to protect public health, safety, welfare, and the environment from the contaminated sediment. This chapter is adopted under s. 227.11 (2) and ch. 292, Stats. NR 756.02 Applicability. Except as otherwise provided, this chapter applies to all sites or facilities where a person who is required to take action under ch. 292, Stats., with respect to contaminated sediment, takes an interim or remedial action that includes the use of an engineering control to address the contaminated sediment. NR 756.03 Definitions. In this chapter:
(1) “Contaminated sediment engineering control” means an engineering control used to address contaminated sediment.
(2) “Event” means an occurrence that may affect the completion of the goals established in the plan and compliance schedule that are induced by either weather, or the combination of human activity and weather, including significant flood events, increased flow rates, anthropogenic induced scour, an increase in event frequency, or other events having a deleterious effect on the protectiveness of the contaminated sediment remedy.
(3) “Person required to submit proof” means a person that is required to submit proof of financial responsibility under s. NR 756.04 (1) d., including a person that has assumed responsibility under s. 292.15 (5m) (am), Stats. (4) “Proof period” means the amount of time for which proof of responsibility requirements are applicable.
(5) “Proof method” means a mechanism for providing proof of financial responsibility under s. NR 756.06. (6) “Third-party action” means activities that may affect the completion of the goals established in a plan and compliance schedule or that have a deleterious effect on the protectiveness of the contaminated sediment remedy that are taken by persons other than the person required to submit a plan and compliance schedule or proof of responsibility under this chapter.
NR 756.04 Plan and compliance schedule; financial responsibility; fees. (1) General. As a condition of approving an interim action, a remedial action, or of granting case closure, the department may require a person who is required to take action under ch. 292, Stats., with respect to contaminated sediment, and who takes action that includes the use of a contaminated sediment engineering control, to do any of the following: (a) Maintain any contaminated sediment engineering controls on the site or facility.
(b) Investigate the extent of residual contamination and perform any necessary remedial action if a structural impediment is removed that had prevented a complete investigation or remedial action at the site.
(c) Submit a plan and compliance schedule for satisfying the requirements under pars. (a) and (b) to the department for approval.
(d) Submit proof of financial responsibility sufficient to pay the costs of complying with the plan and compliance schedule under par. (c) to the department for approval.
(2) Plan and compliance schedule and proof of financial responsibility. (a) Requirements; plan and compliance schedule. The responsible party shall provide to the department a design report meeting the requirements under s. NR 724.09, along with a plan and compliance schedule that identifies the scheduled actions that will lead to the completion of any applicable requirements under sub. (1) (a) and (b) for the purposes of meeting the requirements under ch. 292, Stats. Unless otherwise directed by the department, a person required to submit a plan and compliance schedule shall include all of the following in the plan and compliance schedule: 1. Scheduled actions that will be taken to attain the goals established under sub. (1) (a) and (b), and dates for completion of these actions. These actions may include items required under ss. NR 724.13, 724.15, and 724.17, as applicable, and any other actions directed by the department in writing. Verification of sufficient legal access to conduct all scheduled actions shall be included. 2. An engineering analysis certified by a licensed professional engineer, as defined under s. NR 712.03. The analysis shall include the duration and ongoing efficacy of any engineering controls or structural impediments and assessment of the vulnerability of any engineering controls or structural impediments to any events or third-party actions that may occur and affect completion of the goals established in the plan and compliance schedule. 3. Inspection and reporting criteria that include an inspection schedule. The inspection schedule shall require an inspection and a report at least every 5 years. The inspection report shall provide an engineering analysis of the current conditions of the engineering control or structural impediment with respect to ongoing efficacy, vulnerabilities, events or actions identified under subd. 2. The inspection report shall be certified by a licensed professional engineer, as defined under s. NR 712.03. Report conclusions shall include identification of issues, recommendations and follow-up actions, and a determination of whether the remedy is protective of human health and the environment. 4. Any access agreements needed to secure legal access for the department to the enter property to determine compliance with this chapter and any plan and compliance schedule required under this chapter.
(b) Requirements; financial responsibility. Unless otherwise directed by the department, a person required to submit proof shall submit proof of financial responsibility, as required under this chapter, for all of the following:
1. The costs of planned engineering control monitoring, maintenance, inspections, and repair for each year of the proof period.
2. The costs of any additional engineering control monitoring, maintenance, inspections, and repair that may be needed following any events or third-party actions that may occur during the proof period, including investigation and remediation following a failed engineering control.
3. The costs of inspection, investigation of the extent of residual contamination, and the performance of any necessary response actions following the removal of a structural impediment that had prevented a complete investigation or remedial action at the site at the time of the approval of the plan.
4. The costs of any additional investigation and remediation necessary if the building or other structural impediment is removed pursuant to any events or third-party actions that may occur during the proof period.
(3) Length of requirements. (a) Proof period. Except as otherwise approved by the department, a person required to submit proof shall maintain proof of financial responsibility for the proof period for each applicable financial responsibility requirement under sub. (2) (b).
(b) Establishing the initial proof period. A person that is required to submit a plan and compliance schedule and proof of financial responsibility under this chapter shall submit to the department, as part of the plan and compliance schedule, a proposed initial proof period for each applicable financial responsibility requirement under sub. (2) (b). The proposed initial proof period is subject to approval by the department as part of the plan and compliance schedule and is subject to extension under par. (c).
(c) Extension of plan and compliance schedule and proof period. The department may, in writing, extend the plan and compliance schedule and the proof period for any applicable financial responsibility requirement until the department determines that the actions under s. NR 756.04 (1) (a) and (b) are no longer applicable and necessary to protect human health and the environment. Note: The actions under s. NR 756.04 (1) (a) and (b) are no longer applicable and necessary if the engineering control is no longer needed and the structural impediment is removed, and any remaining contamination is investigated and remediated. Note: Under s. NR 756.07 (2), a person that is required to maintain proof of financial responsibility is required to seek review of the length of the proof period from the department prior to submitting an adjustment to the cost estimate. Under s. NR 756.12 (3), a person that is required to maintain proof of financial responsibility is required to seek review of the length of the proof period from the department prior to submitting an application for a reduction in the amount of required financial responsibility.
