DRAFT
8/6/2020
The statement of scope for this rule, SS# 114-18, was approved by the Governor on November 9, 2018, published in Register No. 755A3 on November 19, 2018, and approved by the Natural Resources Board on January 23, 2019. This rule was approved by the Governor on [insert date].
ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING, RENUMBERING AND AMENDING, CONSOLIDATING, RENUMBERING, AND AMENDING; AMENDING, REPEALING AND RECREATING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal NR 700.03 (45e), 700.11 (1) (a) (Note), (3g) (Note 2), (Note 3) and (Note 4), 706.05 (1) (c) 3m. (Note), 708.17 (4) (Note), (4) (b) 1. (Note), 5. (Note), 6. and 7., 714.03 (2), 716.03 (4), (8) and (Note), 716.09 (2) (a) (Note), 716.14 (1) (Note 1), 716.15 (5) (a), (b), (c), and (d), 718.09 (8) (b) 1. c., 2. a., (c) 1. f. (Note), (d) 3. i. and 4., 718.12 (2) (b) 1., 3., 4., 5., and (c) 3. (Note), 722.07 (3) (a) (Note 2), 724.09 (9) (Note), 724.13 (2) (j) (Note), 726.09 (1) (Note 1), (Note 2), (2) (b), (c) and (3) (Note), 726.11 (1) (b) (Note), (4) (a) (Note), (d) (Note), (e), (f) and (Note) and (7) (c) (Note), 726.13 (2) (d) (Note), 727.05 (1) (a) (Note) and (2), 749.03 and 750.07 (1) (c); to renumber NR 720.03 (1), (1m) and 726.09 (2) (a); to renumber and amend NR 716.15 (5) (intro.), 726.09 (2) (d) (intro.), 1., 2., (e), and (f); to consolidate, renumber, and amend NR 714.03 (intro.) and (1); to amend NR 150.20 (2) (a) 7e. and 7m., 440.75 (1) (b), 670.079 (2) (e) and (3) (intro.), 700.01, 700.02 (1), (2), (Note 2), (Note 3), and (2m), 700.03 (intro.), (1e) (Note), (6), (11m) (Note), (17) (Note), (43g), (43r), (Note), (56) (intro.), (a) and (60), 700.05 (1) and (2), 700.11 (3g), (Note 1) and (3r), 700.13 (1) and (1m), 706.05 (1) (c) 3m. and (2), 706.07 (2) (b) 1., 708.02 (2) (Note), 708.05 (4) (h), (5) (b), and (6) (c) 3., 708.09 (1) (f), (3) and (Note), 708.11 (2) (b), (d), (4) (intro.) and (b), 708.15 (1) and (3) (b), 708.17 (1) (b), (2) (d), (4) (a), (4) (b) 1., 8. and 9., 712.02 (2) and (3), 712.05 (1), 712.07 (1), (2), (3), and (4), 712.09 (2), 712.11 (1) (f) and (2) (b), 714.01, 714.05 (1) and (5) (intro.), 714.07 (3) (intro.), (b), (c), (d), (i), (4) (a) (intro.), (b) 2., 5., (c), and (d), 716.02 (2) (Note 2), 716.07 (1), (8) (intro.), (a), and (12), 716.09 (1), (Note), (2) (a), (c), (e) (intro.), 1., 3., and 4., 716.11 (5) (b), 716.13 (1), (4), (5), (6) (c) 1. and (11), 716.15 (1) (b), (2) (c) 4. and 7., 718.01, 718.02 (1) (a) (intro.), 1., (b) (intro.), 1. and 2., 718.05 (2) (c), (d) (intro.), (h) 5., 7. and (i) 5., 718.09 (1), (4) (a) 1., 2., 3., 4., (b) 2., 5., (7) (intro.), (a), (b), (c), (8) (a), (b) 1. d. and (d) 1. (intro.), 718.12 (1) (title), (a), (b), (c) (intro.), (d) (intro.), (e) 1., (2) (title), (a), (b) (intro.), 8., (c) 2., (d) and (e), 718.15, 720.08 (1), (2) (a), and (3) (a), 720.10 (1), 720.12 (1) (intro.), (a), (b), (3) (a) 1. a., b., c., d., 2. a., b., c., d., (b) 1. a., b., c., d., 2. a., b., c., and d., 722.02 (2) and (3) (Note), 722.07 (3) (a), (b) (intro.), 1m., 2m. and 3., 722.09 (2) (intro.), (a), (b) 2., (c) 1., 2., (d) (intro.), 1., 2., (e) 1., 2. and (4) (b) 3. (Note), 722.11 (1), (2) and (3), 722.13 (2) (a) 1., 3., 4. and (e) 6., 722.17 (1), (3), and (4), 724.02 (2) (Note 2), 724.05 (2) (b), (Note) and (e) 2. d., 724.09 (3), (5), (6), (7), and (8), 724.13 (1) (a), (b), (2) (intro.), (d) 1., 2., (g) (Note) and (3) (Note 2), 724.17 (1), 725.02 (1) and (2), 725.05 (2) (a), (b), and (L) (Note 2), 725.07 (1) and (3) (Note), 726.02 (2) (a), 726.05 (1), (4) (b), (c), (d), (6) (intro.), (b), (c) (intro.), and (e), 726.07 (1), 726.09 (1), (2), (g), (Note) and (3), 726.11 (2) (a), (3), (4) (intro.), (c), (d), (5) (intro.), (b), (c) 1., 2., (d) (intro.), 1., 2., (e), (6) (intro.), (a), (b) (intro.), 1., (c), (7) (intro.) and (c), 726.13 (1) (a) 2., (b) 2., 3., 4., (2) (b) and (d), 726.15 (1) (b), (d), (2) (e), (f) and (m), 727.01, 727.02, 727.05 (1) (intro.), NR 727.07 (intro.), 727.09 (1), (2), (Note), (4) (intro.), (a), (b), (5) (intro.), (a), (b), and (6) (a) (intro.), 727.11 (1) and (2), 727.13 (3) (b), 728.01, 728.05, 749.04 (1) and (Note 1), 749.05, 750.03 (2m), 750.05 (1), (2) (a) 3., (c), and (5) and 750.07 (1) (a); to repeal and recreate NR 700.03 (54), 700.07, 700.11 (1) (a), (3r) (Note), 708.17 (4) (b) 5., 712.07 (1) (Note), 716.13 (12) and (Note), 716.14 (1), 718.05 (1) and (Note), 726.05 (5), 726.11 (4) (a) and (b) and 749.04 (Table 1); and to create NR 700.03 (1h), (Note), (3e), (Notes), (5g), (5r), (6e), (Note), (8m), (8s), (13m), (30d), (43g) (Note 1), (Note 2), (43r) (Note 2), (54) (Note), (54m), (Note), (56) (Note), (59s) and (Note), 700.11 (1) (ae), (am), (4), (5) and (Note), 700.15, 708.09 (2) (d), 708.11 (4) (bm) and (4m), 708.15 (4), 708.16, 708.165, 708.17 (2) (am), NR 714.05 (1) (Note 2), 714.07 (3) (im) and (4) (a) 6., 716.07 (7m), (8m), (13), (14), (15), (16), (17), and (18), 716.09 (2) (dm), (em), (i), (Note) and (j), 716.11 (3) (e), (5) (i), 716.13 (4m), (6) (am), (cm), (6m), (12m), (Note), (18), (Note) and (19), 716.15 (3) (j), (4) (gm) and (7), 718.02 (1) (a) 3., 4. and (Note), 718.03 (4m), (Note), (5m) and (5r), 718.05 (2) (d) 2. (Note), 718.12 (1) (f) and (2) (f), 720.03 (1b), (1e), (1h), (1p), (1r), (1u), (4b), (4e), (4h), (4k), (4n), (4q), (4t), (4w), (4y), (10d), (10h), (10p), (10t), (11m), (14e), (14m), and (14s), 720.12 (1) (am), (2m) and (Note), 722.07 (3) (b) 2s. and (4) (a) 3. gm., 722.09 (2) (c) 1m., (cm), (f), (5m) and (Note), 722.13 (2) (cm), (e) 8., 9., 10., and 11., 722.15 (2) (e) 1m., 722.17 (5), 724.02 (1) (br), 724.09 (12) and (13), 724.13 (2) (o) and (p), 724.15 (2m), 724.17 (3r), 724.18, 725.05 (2) (bm), (cm) and (m), 726.02 (2) (c), 726.05 (4) (f) and (8m), 726.07 (1) (Note), 726.09 (2) (ac), (ag), (an), (ar), (b) (intro.), 1., 2., 3. and 4., 726.11 (2m), (3m), (5) (em), (f) and (6) (bm), 726.13 (1) (b) 6. and (2) (h), 726.15 (1) (b) (Note), (dm), (2) (bm), (dm) and (em), 727.05 (5), (6) and (7), 749.04 (1m), (Note) and (2) (Note), 749.06, 749.07, 750.03 (2m) (Note 1), (Note 2), (3) and (Note), 750.09 (6), 754.05 (2m) and (Note), ch. NR 756 and ch. 758, 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 799, and affecting small business.
RR-10-17
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted:
Wis. Stat. ch. 292
2. Statutory Authority:
3. Explanation of Agency Authority:
Wis. Stat. s. 227.11 (2) provides the department with authority to promulgate rules that are necessary to perpetuate the purpose of the statute. Wis. Stat. s. 292.12 (2) (c) requires the department to promulgate rules to identify limitations or other conditions related to property, to ensure that conditions at the site remain protective of public health, safety, and welfare and the environment, and, as applicable, to promote economic development. Wis. Stat. 292.15 (5) allows the department to assess and collect fees from a voluntary party to offset the cost of the department's activities in accordance with promulgated rules. Wis. Stat. s. 292.31 (2) requires the department to promulgate rules relating to investigation and remedial action for sites or facilities and other properties at which the air, land, or waters of the state have been affected by the discharge of a hazardous substance or other environmental pollution. Wis. Stat. s. 292.94 requires the department to promulgate rules for the assessment and collection of fees from a person who is subject to an order or other enforcement action for a violation of Wis. Stat. ss. 292.11 or 292.31 to cover the costs incurred by the department to review the planning and implementation of any environmental investigation or environmental cleanup that the person is required to conduct.
Additionally, Wis. Stat. ss. 292.12 (2) (d) (2) and 292.15 (2) (af) (3m) authorize the creation of rules regarding sediment financial responsibility. Nonstatutory language within Section 36 of 2015 Wis. Act 204 requires the department to promulgate these rules using the emergency rulemaking process. A portion of this permanent rule corresponds to the emergency rule that is being promulgated under Section 36 of 2015 Wis. Act 204 and Wis. Stat. ss. 292.12 (2) (d) (2) and 292.15 (2) (af) (3m).
4. Related Statutes or Rules:
Wis. Stat. chs. 289, 291, and 292
5. Plain Language Analysis:
The Remediation and Redevelopment program is proposing revisions to chs. NR 700 to NR 754, Wis. Adm. Code, as well as the creation of chs. NR 756 and 758. The purpose of these revisions is to provide procedures for new requirements and statutory changes under 2015 Wisconsin Act 204 (“Act 204”), to provide consistency with 2017 Wisconsin Act 70 (“Act 70”), to ensure adequate direction is available in code for the investigation and remediation of contaminated sediment, and to make other targeted changes that are needed to update, clarify, and promote consistency within the NR 700 rule series.
Proposed revisions include the following:
a. Implementation of 2015 Wis. Act 204 changes regarding definitions, continuing obligations, and interim actions.
Act 204 established that the department can require continuing obligations for interim actions. Act 204 established access requirements and the responsibilities of owners of properties with continuing obligations, especially those with contaminated sediment, and clarified conditions under which persons are not liable for off-site contamination. Act 204 modified requirements regarding information to be included in the public database established in Wis. Stat. s. 292.12 (3).
The proposed revisions achieve consistency with Act 204 and provide sufficient clarifications, guidance, and procedures for those seeking to comply with new requirements. Revisions include repealing the definition of the term “continuing obligations” in ch. NR 714 and recreating it in ch. NR 700 to be consistent with Act 204 and apply to uses of the term throughout code; creating s. NR 708.16 to provide direction for documentation of continuing obligations imposed by the department as a condition of approving an interim action; creating s. NR 708.165 to clarify the department’s response to interim action plans and reports; and revising ch. NR 725 to clarify that notification requirements apply to sites with continuing obligations imposed following an interim action. Revisions also include:
Revising or adding terms within s. NR 700.03 that were revised by 2015 Wis. Act 204.
Revisions to ss. NR 725.02 and NR 727.02 to reflect Act 204 changes regarding the administrative authority of the department under ch. 292 for hazardous waste facilities.
Updates to ss. NR 714.05, 722.17, 725.07, 726.07 and 726.11 to reflect Act 204 requirements relating to the recording of agreements regarding continuing obligations in the department database, and inclusion of a description of any engineering controls or sediment covers in notifications to property owners regarding sites or facilities with residual contamination.
Revisions within s. NR 727.05 to include Act 204 requirements prohibiting owners and occupants of properties from interfering with continuing obligations imposed by the department at the property.
b. Implementation of 2015 Wis. Act 204 requirements for financial responsibility at contaminated sediment sites.
Act 204 amended Wis. Stat. ch. 292 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, the department may require submission of a plan and compliance schedule and proof of financial responsibility for the maintenance of an engineering control and for the investigation and remediation of residual contamination following the removal of a structural impediment. Act 204 created the opportunity for persons to obtain the Voluntary Party Liability Exemption (VPLE) at sites with contaminated sediments, and imposed insurance or an alternative form of financial assurance requirements on contaminated sediment sites enrolled in the VPLE program. It also outlined special conditions for partial cleanup approvals at VPLE properties with contaminated sediment.
The proposed ch. NR 756 creates consistency with statutory changes and provides clarity, guidance, forms, and procedures for changes relating to financial responsibility for engineering controls at contaminated sediment sites and for addressing contamination when a structural impediment is removed. The proposed rule includes added language in chs. NR 708, 722, 724, and 726 to explain the applicability of ch. NR 756 requirements, and the creation of ch. NR 756, which includes:
The purpose, applicability, and definitions for the chapter in ss. NR 756.01 to 756.03.
The primary requirements for the plan and compliance schedule in s. NR 756.04 (2) (a), including a plan and compliance schedule that contains scheduled actions, an engineering analysis, and 5-year inspection criteria.
Financial assurance requirements under s. NR 756.04 (2) (b) for actions listed within the plan and compliance schedule and for events that may occur and affect the completion of the goals of the plan and compliance schedule or the protectiveness of the engineering control remedy.
Length of time requirements, submittal requirements, authorized department responses, fees, and inspections under s. NR 756.04 (3) to (6).
Continuing obligation responsibilities and department access authority at affected sediment sites under s. NR 756.05.
Allowable methods of providing proof of financial responsibility under s. NR 756.06
Procedures for estimating financial assurance costs and calculating the financial assurance amount under ss. NR 756.07 and 756.08.
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