Natural Resources Board Environmental Update

February 7, 2019

At its January meeting, the Natural Resources Board (NRB), the policy-making board for the Department of Natural Resources (DNR), took action on three environmental rule proposals. The NRB adopted an air rule for lithographic printers located in nine counties that were designated as ozone nonattainment areas under old ozone standards.  The NRB also approved a scope statement, which allows DNR staff to begin working on a rule proposal, to update Wisconsin’s rules for remediating contaminated sites.   In addition, the NRB approved a scope statement for rules related to septage servicing.  Below is a short summary of each proposal.

Air Rules for Lithographic Printing

The NRB adopted a rule related to volatile organic compound emissions from lithographic printers.  As the agency responsible for implementing the federal Clean Air Act, the DNR is required to implement Reasonably Available Control Technology, also known as RACT, in certain ozone nonattainment areas.  The DNR had adopted two different rules covering emissions from these printers, one of which was for the 1979 ozone standard (NR 422.142), and one of which was for the 1997 ozone standard (NR 422.143).  One or, in most instances, both rules are applicable to nine counties: Kenosha, Kewaunee, Manitowoc, Milwaukee, Ozaukee, Racine, Sheboygan, Washington, and Waukesha counties.

The DNR implemented this rulemaking mainly to simplify and clarify these rules.  While only one rule (NR 422.142) currently applies in Kewaunee and Manitowoc counties, both sets of rules apply to the other counties mentioned above.  The application of both sets of rules created some confusion in regard to what provisions applied, as the two rules contain similar, but not identical, requirements.

The Solution?  The DNR is changing the applicability requirements so NR 422.142 only applies to existing sources in Kewaunee and Manitowoc counties (there is currently one source in this area).  In the other seven counties, NR 422.143, which is the newer rule and generally has higher efficiency requirements, will apply.  In addition, NR 422.143 will apply to any new or modified sources in Kewaunee and Manitowoc counties.

This rule package contains a number of other changes.  For example, a requirement to stack test every 48 months is proposed to be eliminated for lithographic printers with allowable VOC emissions below 100 tons.  The DNR determined that these stack tests were unnecessary because tested printers in the regulated area had test control efficiencies significantly above those required by the rules.

While this rule proposal has been adopted by the NRB, it still has to work its way through the legislative review process and be published in the Wisconsin Administrative Register before it becomes effective.

 Environmental Cleanup Rules

The NRB also approved scope statements for an emergency rule and a permanent rule for how environmental cleanups are conducted under the NR 700 rule series.

By way of background, pursuant to Wisconsin’s spills law (Wis. Stat. § 292.11), a person who possesses or controls a hazardous substance that is discharged, or who causes a discharge, is responsible for cleaning up the environment to the extent practical, and minimizing the harmful effects of the discharge.  As a way to encourage redevelopment, Wisconsin has adopted laws that provide protection from liability under Wisconsin’s clean up laws in some instances. One of those provisions is known as the Voluntary Party Liability Exemption (VPLE).  This exemption provides persons who voluntarily conduct a cleanup with relief from liability for historic discharges.  Once a VPLE is granted, for example, the DNR could not require additional clean up at a site, under the spills law, if the standards that were applied to the property became more stringent in the future.

There are, of course, certain criteria that must be met in order to obtain a VPLE. These include: conducting a DNR-approved investigation; restoring the environment to the extent practicable; obtaining a certificate of completion; maintaining and monitoring the property as required if the voluntary party owns or controls the property; and not engaging in activities that are inconsistent with maintaining the property.

In regard to this rulemaking effort, the DNR is proposing to adopt a permanent rule covering three different topics.  First, the DNR is proposing to update its rules to incorporate legislative changes contained in 2015 Wisconsin Act 204.  Act 204 mainly deals with clean up issues at sites with contaminated sediments. “Sediments” are defined as certain particles in the bed of a navigable water up to the ordinary high-water mark that are transported or deposited by water.  Act 204 created specific provisions for obtaining a VPLE for contaminated sediments.  It also created new requirements that apply when engineering controls are used to deal with contaminated sediments.  Furthermore, the Act has provisions relating to accessing sites containing contaminated sediments, and provides conditions under which property owners who have a discharge are not liable for off-site contamination.

Second, the DNR intends to update it rules to reflect legislative changes contained in 2017 Wisconsin Act 70.  Act 70 contained a variety of changes pertaining to brownfield cleanups.  The changes reflect recommendations for the Brownfields Study Group, a longstanding advisory committee to the DNR.  The DNR’s rulemaking efforts will likely include incorporating a new definition of “property” into the VPLE program (real property identified in the VPLE application consisting of a parcel or contiguous parcels), and changes to incorporate new requirements regarding property boundary changes in the program.

Finally, the DNR will be proposing a variety of minor changes to clarify various rule provisions.

The emergency rule was proposed as a result of a requirement contained in Act 204.  The Act specifically directs the DNR to promulgate an emergency rule relating to two financial assurance provisions contained in the law.

First, at contaminated sediment sites where engineering controls are being used, the DNR may require a plan for maintenance of the engineering control, and investigation and potential remediation if a structural impediment to the cleanup is removed in the future.  The financial assurance is to cover the cost of complying with the plan.  The emergency rule is intended to clarify what type of financial assurances are acceptable, the requirements of each form of financial responsibility, and other related details.

The second relates to obtaining a VPLE for sites with contaminated sediments.  One of these new provisions provides that a person seeking this liability protection must have insurance to cover any additional cleanup that may be needed in the future. The DNR can waive this requirement, or allow other types of financial assurance in some circumstances.  This emergency rule is intended to provide more clarity regarding this financial assurance requirement.

The DNR’s Remediation and Redevelopment Program will hold public meetings to provide information and get input on the development of this rule package.  The first meeting was held on February 5th.

The DNR plans to hold hearings on these rules in the Fall of 2020, and go back to the NRB for adoption of the rule in the Spring of 2021.

Septage Servicing Rules

The NRB also approved a scope statement relating to septage servicing (Wisconsin Administrative Code chapters NR 113 and NR 114).

The DNR formed a Septage Study Group in 2017, and the items in the scope statement are based mainly on the recommendations of that group.  Potential changes include those relating to septage storage facilities, septage vehicle identification requirements, and regulations for portable restroom waste.  The DNR anticipates holding four hearings around the state from September to November, 2019.

For those of you that are interested in what the NRB is up to, agendas and webcasts of meetings are available at www.dnr.wi.gov/about/nrb.

For more information about "Natural Resources Board Environmental Update," contact Patrick Stevens at pstevens@axley.com or 262.409.2296.