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:
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.
Policies and procedures for changing financial assurance methods and submitting annual adjustments under ss. NR 756.09 and 756.10.
Policies and procedures for default on commitments under the plan and compliance schedule, for bankruptcy, compliance, and the release of funds under ss. NR 756.11 to 756.14.
The proposed ch. NR 758 provides guidance, forms, and procedures for changes relating to environmental insurance and financial assurance requirements for contaminated sediment sites in the VPLE program, including those receiving partial certificates of completion. The chapter includes:
Purpose and applicability provisions and definitions for the chapter in ss. NR 758.01 to 758.05.
Insurance requirements for either the use of a state insurance contract or an individual policy under s. NR 758.07.
Procedures and policies for calculating the amount of the insurance coverage, the length of insurance, the amount of the deductible, and proof of insurance under ss. NR 758.09 to 758.12.
Options for using financial assurance methods other than insurance under s. NR 758.13.
Procedures and criteria for waiver of the insurance requirement under s. NR 758.15.
Conditions for the issuance of a VPLE certificate of completion under s. NR 758.19 and the policy for failure to satisfy the conditions under s. NR 758.21.
Policies and procedures for parties seeking a certificate of completion for partial cleanup of a sediment site under ss. NR 758.23 and 758.24. c. Adequate direction for contaminated sediment sites.
The proposed rule revisions clarify the application of several code processes and requirements to contaminated sediment and provide sediment-specific direction within provisions of code that apply directly to various other media (for example, soil or groundwater). These revisions include:
Creation of terms related to contaminated sediment site investigations and remediations within NR 700.03.
Revisions throughout chs. NR 700, 708, 716, 718, 722, 724, 726, and 727 to clarify the applicability of code to sediment, to incorporate sediment-specific language, and to provide adequate direction for meeting property description requirements for sediment sites; for example, the inclusion of “dredging” for sediment in addition to “excavating” for soil; revisions to distinguish between a sediment cover, soil cover, or cap; and revisions to provide for an exception from legal description requirements at sites with waterways, at which complete boundaries may not be available in the form of a legal description on a recorded deed.
Revisions to s. NR 716.07 to provide adequate direction for sediment sites during the site investigation scoping process, including the creation of s. NR 716.07 (7m), which requires scoping data related to impacts to the food chain from persistent, bioaccumulating, or toxic substances; s. NR 716.07 (8m), which requires scoping information relating to the need for an ordinary high water mark determination, and ss. NR 716.07 (13) to (18), which require further scoping data related to sediment sites.
Revisions to ss. NR 716.09 and 716.13 to provide adequate direction for sediment sites during the site investigation process, including the incorporation of a conceptual site model under s. NR 716.09 (2) and revised sampling analysis requirements and data validation methods under s. NR 716.13.
Revisions to chs. NR 722 and 724 to provide adequate direction for sediment sites during the evaluation, selection and reporting of a remedial action, including new language to clarify the laws and standards applicable to remedial actions for contaminated sediment under s. NR 722.09 (2); additional language to clarify the required contents for a remedial action options report under s. NR 722.13 (2) and for a design report under s. NR 724.09; new provisions to clarify the contents of an operation and maintenance plan for sediment caps under s. NR 724.13 (2); and added language to clarify requirements for long-term monitoring for sediment under s. NR 724.17 (3r).
Revisions to chs. NR 726 and 727 to provide adequate direction for sediment sites for continuing obligations and closure, including: closure criteria for sites with sediment contamination under s. NR 726.05 (8m); added closure documentation requirements for sediment sites under s. NR 726.09 (2); clarification of closure letter language under s. NR 726.15 for sediment sites with continuing obligations, including sediment sites with any structural impediments or engineering controls; and additional language to clarify the ongoing responsibilities for continuing obligations at sediment sites under s. NR 727.05 (5). d. Implementation of 2017 Wis. Act 70 changes to the Voluntary Party Liability Exemption program. 2017 Wisconsin Act 70 revised Wis. Stat. s. 292.15 to clarify which properties are eligible for the VPLE program and created a new process for property boundary changes that may occur following application. Revisions to code within chs. NR 750 and 754 provide consistency and direction regarding these additions to statute, including a new definition of “property” as used in the VPLE program, and new requirements and procedures for property boundary changes in the VPLE program. e. Clarifications and updates to geolocation, documentation, and applicable standards for emerging contaminants.
Rule revisions include updated terminology and clarified submittal methods and requirements, unified geolocation specifications, and clarified application of legal standards for emerging contaminants throughout chs. NR 700 to 754, Wis. Adm. Code. Changes include elimination of required paper copy submittals in favor of an electronic submittal method approved by the department and the reorganization of geolocation requirements throughout code into a single section within ch. NR 700 to promote consistency. Changes also include revisions to include applicable references to other Wisconsin laws and standards for various contaminated media, to provide adequate direction for addressing hazardous substances and environmental pollution, as those terms are defined under Wis. Stat. ch. 292, across all media. Specific revisions include:
Clarifications to the terms “site” and “submittal” within s. NR 700.03 to provide consistency with statute.
Repeal of property information requirements in chs. NR 706, 708, 716, 718, and 726 and creation of a unified set of deed, parcel, and geolocation information requirements at s. NR 700.15.
Revisions to s. NR 714.07 to provide for modern methods of public notification and outreach.
Clarification of applicable environmental laws and standards for remedial actions under s. NR 722.09, including references to state drinking water standards in chs. NR 809 and 812.
Revisions to the definitions of “Phase I environmental sites assessment” and “Phase II environmental site assessment” in s. NR 700.03 to clarify that these reports, which are required under s. NR 750.05, shall include “hazardous substances” and “environmental pollution” as those terms are defined in statute and code, and to incorporate respective ASTM standard practices.
Revisions to chs. NR 725, 726, and 727 to clarify the application of alternative standards and site-specific standards for certain media. f. Updates to professional qualifications and fees.
Rule revisions include clarification of the applicability of professional standards under ch. NR 712 to closure submittals and the revision of ch. NR 749 to account for inflation and to provide clarity and flexibility regarding payment of fees, including fees for enforcement-related submittals, contracts under Wis. Stat. ch. 292.31, and database entries. Some specific revisions to ch. NR 749 include:
The increase of existing fees listed within Table 1 by 2% upon the effective date of the rules.
The increase of existing fees listed within Table 1 by 5% every third calendar year, beginning Jan. 1, 2025.
The creation of new fees for review of the following items: an interim action plan, an interim action report, a plan and compliance schedule for a contaminated sediment site, and an inspection report for a contaminated sediment site. g. Clarifications and updates to timelines and notification and closure requirements.
Rule revisions include additions throughout code to clarify the timing and steps of the investigation and cleanup process to encourage responsible parties to make reasonable progress towards completing cleanups. Revisions also include clarifications within ch. NR 726 regarding the process and requirements for submitting closure requests and forms, and clarification of case closure response action goals. These changes include:
The addition of content-related requirements for semi-annual reports required under s. NR 700.11.
Clarification of the department’s authority to approve or require further revisions or additional information following receipt of a site investigation report under ch. NR 716.
Clarification of the disposition of fees for incomplete closure requests and their application to other submittals required by code.
The addition of a compiled list of the submittals required throughout code within the case closure chapter, ch. NR 726, to clarify the requirements for a complete case closure request.
Clarification of case closure submittal mapping and format requirements under s. NR 726.09.
Clarification of the department’s authority to require a schedule for completing unfinished closure requests under s. NR 726.13.h. Clarifications and updates to soil standards and soil management.
Rule revisions include streamlining certain soil management procedures under ch. NR 718, cross-references between portions of code regarding documentation of soil management, creating consistency with federal soil direct exposure assumptions, and revisions to cumulative approach and background considerations for polycyclic aromatic hydrocarbon (PAH) contaminants. Specific changes include:
