Action required to be taken in response to a discharge of hazardous substances, exemption from liability for certain hazardous substance discharges, providing an exemption from emergency rule procedures, and granting rule-making authority. (FE)

Sites with residual contamination after cleanup This bill makes changes to the requirements that apply if residual contamination remains on a property after a hazardous substance cleanup is completed.

Under current law, DNR or DATCP may impose certain requirements as a condition of approving a cleanup of a hazardous substance discharge or issuing a case closure letter if residual contamination remains on a property after the conclusion of a cleanup. Under current law the agency may require 1) maintenance of an engineering control on the property; 2) investigation and, if necessary, additional remedial action if a structure is removed that had prevented a complete investigation or remedial action at the property; and 3) any other limitations or conditions related to the property to protect public health, safety, and welfare and the environment, and to promote economic development. An engineering control is an object or action that is designed to contain contamination or minimize the spread of contamination, such as a cap or a soil cover. Under the bill, an engineering control does not include a sediment cover, which is a layer of uncontaminated sand or similar material that is deposited on top of contaminated sediment. Under current law, the property owner is responsible for maintaining the engineering control and conducting additional investigation or remedial action, unless there is an agreement in place for someone else to do so. Either the property owner or a person who occupies the property is responsible for complying with any other limitations or conditions that the agency imposes on the property.

Under this bill, DNR or DATCP may impose additional requirements as a condition of approving remedial action or of issuing a case closure letter if a person is required to clean up contaminated sediment or a discharge of a hazardous substance that resulted in contaminated sediment, and the person uses an engineering control to address residual contamination remaining on the property.

If the person uses an engineering control, the agency may require that the person submit a plan and schedule for complying with any of the requirements, limitations, or conditions imposed by the agency, and proof of financial responsibility sufficient to pay the costs of implementing that plan. In addition, under the bill a person who uses an engineering control in a contaminated sediment cleanup must comply with the requirements, limitations, or conditions imposed by the agency regardless of whether the person owns or occupies the property where the engineering control is located, unless there is an agreement in place for someone else to do so. If that person does not own or occupy the property where the engineering control is located, the person must obtain access to that property to allow the engineering control to be inspected and maintained, and, if necessary, for the engineering control and any remaining contaminated sediment to be removed.

This bill also provides that, if a person owns property from which a hazardous substance discharge resulting in contaminated sediment originated, that person is not required to comply with any requirements imposed by DNR or DATCP in relation to any other property that is affected by that discharge if 1) the environment has been satisfactorily restored to the extent practicable and the harmful effects from the discharge have been minimized; 2) the person is a bona fide prospective purchaser;

and 3) another person has entered into an agreement to comply with the requirements imposed by the agency for the affected property and demonstrates the financial ability to do so. A bona fide prospective purchaser is someone who did not own or control the property at the time of the discharge, and who is not affiliated in any way with the person who caused the discharge.

Voluntary party liability exemption for contaminated sediment cleanup This bill creates requirements for obtaining a liability exemption relating to contaminated sediment.

Under current law, if there are hazardous substances on a property, or if a discharge of hazardous substances originated from a property, a person (voluntary party) may be exempt from liability for restoring the environment, and from the requirements of other laws relating to hazardous substances, with respect to those hazardous substances if the voluntary party complies with certain requirements.

This exemption is known as a voluntary party liability exemption (VPLE). In general, to qualify for a VPLE 1) an environmental investigation of the property must be conducted; 2) the environment must be restored and the harmful effects of the discharge minimized according to rules promulgated by DNR; 3) DNR must issue a certificate of completion stating that the cleanup has been satisfactorily completed;

and 4) if the voluntary party owns or controls the property, the voluntary party must maintain and monitor the property according to rules promulgated by DNR.

This bill creates a separate set of requirements for obtaining a VPLE if there is contaminated sediment on a property from a discharge of hazardous substances on or originating from a property. Under the bill, to qualify for a VPLE in that situation 1) an environmental investigation of the property must be conducted; 2) the voluntary party must remove all or part of the contaminated sediment and address any remaining contaminated sediment in a manner approved by the department, such that the environment is restored and the harmful effects of the discharge are minimized; 3) DNR must issue a certificate of completion stating that the cleanup has been satisfactorily completed; 4) if the voluntary party owns or controls the property, the voluntary party must maintain and monitor the property in a manner required by DNR; 5) the voluntary party must obtain insurance to cover the cost of the cleanup in the event that additional remedial action is necessary, unless DNR waives the insurance requirement; and 6) if the voluntary party owns or controls the property, the voluntary party must allow DNR and certain other interested parties to enter the property to determine whether additional remedial action is necessary.

Under the bill, a VPLE is not available for a property where an engineering control is used as a remedial action to address contaminated sediment.

Voluntary party liability exemption for partial cleanup This bill creates additional requirements for obtaining a liability exemption for a partial cleanup relating to contaminated sediment.

Under current law, a voluntary party that conducts a partial cleanup of hazardous substances may be exempt from liability for restoring the environment with respect to those hazardous substances, but not from the requirements of other laws relating to hazardous substances. A voluntary party may qualify for this partial VPLE if 1) public health, safety, or the environment will not be endangered by the remaining hazardous substances; 2) the activities associated with any proposed use or development of the property will not aggravate the discharge; and 3) the owner of the property agrees to cooperate with DNR in addressing the remaining hazardous substances.

This bill provides that, if there is contaminated sediment in addition to contaminated soil or contaminated soil and groundwater on a property from a discharge of hazardous substances on or originating from a property, a partial VPLE may only be provided with respect to the hazardous substances in the soil, or in the soil and groundwater. The bill also creates additional requirements for obtaining a partial VPLE in this situation. In addition to the requirements listed above 1) an environmental investigation of the property must be conducted; 2) the voluntary party must agree to restore the environment to the extent practicable in relation to the contaminated sediment; and 3) the voluntary party must provide proof of financial responsibility sufficient to cover the cost of restoring the environment to the extent practicable in relation to the contaminated sediment.

Other Current law prohibits the Department of Justice (DOJ) from initiating an action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) against a person who has obtained a VPLE to recover costs for which that person is exempt. This bill also prohibits DOJ from initiating an action under certain other federal regulations against a person who has obtained a VPLE to recover damages to natural resources resulting from a discharge for which that person is exempt.

In addition, the bill prohibits DNR from requiring a person who has obtained a VPLE relating to contaminated sediment from taking additional remedial action with respect to the contaminated sediment or discharge covered by the VPLE for the purpose of complying with a federally approved total maximum daily load (TMDL) requirement for a body of water. A TMDL is the maximum amount of a pollutant that a body of water can receive and still meet water quality standards.