Recently, the WDNR announced an opportunity for comment on a new guidance document entitled "Identifying and Documenting Characteristics of Imported Soil and Other Fill Materials Prior to Use on VPLE Sites." See http://dnr.wi.gov/news/input/guidance.html. The comment period on this new guidance for interested parties is open until May 13, 2015, and comments may be sent to Michael Prager of the WDNR at michael.prager@wisconsin.gov.

This new guidance is very important for parties who are either entering property into the Voluntary Party Liability Exemption (VPLE) program (Wis. Stat. §292.15) or have received a certificate of completion under the VPLE program for property. In general, the WDNR is proposing consultation with the WDNR prior to importing fill material on VPLE sites and, where necessary, establishing a plan of testing to ensure that the imported material is clean and not contaminated. In particular, WDNR is proposing a prior plan review and approval process for importing such material. The proposed plan for prior approval, according to the guidance, should take into consideration the following factors:

• past history of the property-where the soil and other filled materials are coming from;
• the volume of soil and other fill materials to be used;
• zoning restrictions on planned end uses of the receiving property;
• location on the receiving property-where the material will be placed (e.g. under a cap, at depth, etc.) including the locational criteria in §NR718.12(1), Wis. Adm. Code; and
• results of sampling and comparison with the values in Chapter NR720, Wis. Adm. Code.

It is important to note that the proposed guidance indicates that if soil or other fill material is placed on a VPLE site without prior sampling and WDNR approval, the property owner can approach the WDNR to discuss the sampling plan for the material already sent to the site to ensure it is not contaminated and will not adversely impact the VPLE status.

While this proposed guidance applies to VPLE properties, the WDNR guidance suggests that other responsible parties are encouraged to follow the procedures and practices in this guidance document even if soil is being imported to a non-VPLE site. For these non-VPLE remedial properties, a "soil materials management plan" can be submitted to the WDNR as a request for technical assistance along with the corresponding review fee, and this guidance will be used to evaluate such plans.

Since this guidance has not been finalized yet, interested parties are encouraged to file written comments to the proposed guidance on or before May 13, 2015.

If you are interested in any further information on this proposed guidance, please feel free to contact any member of the Environment & Energy Strategies practice group at Godfrey & Kahn.