Statement of Scope
Department of Natural Resources
Relating to: | Revisions to chs. NR 700, 720, and 722 related to definitions, land use classifications, procedures for identifying environmental standards for soil, and soil cleanup standards used to investigate and remediate environmental contamination |
1. Finding/nature of emergency (Emergency Rule only):
The rules will be proposed as permanent rules.
2. Detailed description of the objective of the proposed rule:
Chapters NR 700 to 799, Wis. Adm. Code, establish standards and procedures for the identification, investigation, and cleanup of hazardous substance discharges and environmental pollution in Wisconsin under chs. 289 and 292, Wis. Stats. The proposed rule revisions affect chs. NR 700, 720, and 722, Wis. Adm. Code, and other related administrative code, which provide definitions, standards, and procedures for soil cleanup as well as direction for selecting remedial actions during soil cleanup. Persons conducting the investigation and remediation of soil contamination must establish soil cleanup standards for soil remediations. Soil cleanup standards include Residual Contaminant Levels (RCLs), which are amounts of contamination that may be left in place after cleanup is complete. RCLs represent the concentration in soil above which there is a potential risk to human health or the environment. Currently, these RCLs are calculated using numeric criteria, methods, and procedures set forth by rule. If soil contaminants exceed the RCLs, then remedial action is typically required to protect human health or the environment. Another soil cleanup standard is performance standards, in which specific types of remedial action (e.g., a concrete cap), or in some cases existing site conditions, prevent exposure to contaminants and/or decrease contaminant concentrations to protect human health and the environment. Performance standards may be used when there is residual contamination at concentrations greater than RCLs. Some sites may also be eligible for a risk assessment approach that allows for the development of cleanup standards that are specific to a particular site. Soil cleanup standards are generally determined based on the land use classification of the site (e.g., “non-industrial”). Rule revisions will update land use classification requirements to provide additional flexibility while ensuring that the soil cleanups are protective of human health based on the intended use of the remediated site. Chapters NR 720 and 722, Wis. Adm. Code, were last updated in 2013.
The proposed rule changes would revise these chapters to provide updates to:
-- Increase consistency in code between the descriptions of soil standards and the descriptions of cleanup standards for other media;
-- Remove outdated soil cleanup requirements, while maintaining soil cleanup standards that are protective of human health, safety and the environment;
-- Create consistency between state and federal approaches to calculating allowable RCLs for soil contamination;
-- Increase consistency among administrative code related to soil cleanup standards and land use classification requirements;
-- Update land use classifications to allow further flexibility for soil cleanups and to better reflect the risk of exposure at cleanup sites based on intended land use; and
-- Clarify when certain methods of calculating RCLs may be applied to other media, such as floodplain soils and sediment.
Rule revisions related to soil standards may include:
-- Addition of a “soil cleanup standard” definition and creation or revision of other terms relating to soil cleanup standards;
-- Clarification of standards for soil cleanups, including performance standards and RCLs;
-- Clarification of procedures for establishing soil performance standards and procedures for determining default and site-specific RCLs, including terminology changes, added citations to applicable authorities, and added cross-references to clarify other applicable portions of administrative code;
-- Clarification of the process for identifying environmental standards for soil that are protective of groundwater and development of requirements and standards for site-specific evaluation;
-- Clarification of the process for identifying environmental standards for protection of human health from direct contact with contaminated soils and development of requirements and standards for site-specific evaluation;
-- Specification of criteria for determining RCLs, including specification of cumulative cancer risk target as the applicable RCL to use for polycyclic aromatic hydrocarbons;
-- Revisions that allow direct contact RCLs to be derived utilizing the U.S. Environmental Protection Agency (U.S. EPA) Residual Screening Level calculator and the identified default exposure assumptions;
-- Removal of provisions relating to the default exposure assumptions and soil parameter values that are used to calculate RCLs;
-- Clarification of the applicability of soil cleanup standards, including the point of compliance (i.e., the depth of application) over which soil standards apply; and
-- Changes to administrative code affected by the proposed rule or that relate to soil cleanup standards.
Rule revisions related to land use classifications applied during soil remediation may include:
-- New and revised definitions for terms relating to land use classification (e.g., “industrial land use” and “nonresidential setting”) and insertion of references to these terms;
-- Clarifications that describe how to determine RCLs based on land use classification, including which exposure scenario (i.e., the extent to which a particular person may be exposed to contamination) to utilize when calculating RCLs in connection with land use classification;
-- Other clarifications of the requirements and procedures for the selection of land use classification during the remedial action phase of cleanup; and
-- Changes to administrative code affected by the proposed rule or that relate to land use classifications.
Other rule revisions may include:
-- Revisions to clarify that direct contact RCLs for soil may be applied to floodplain soils and sediment when there is human health risk from direct contact with contaminated sediment or floodplain soils;
-- Clarification of risk assessment approaches, changes to allow the site-specific development of standards based on site-specific exposure, and changes to allow use of the risk assessment approach for contaminated media other than soil; and
-- Corresponding revisions to provisions relating to environmental requirements and standards for selection of a remedial action within ch. NR 722, Wis. Adm. Code, in order to create consistency between soil cleanup standards and standards for selecting a remedial action. Additional rule changes or clarifications may be pursued which are reasonably related to those discussed here.
3. Description of the existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives:
The proposed rule changes update rules to reflect current department soil cleanup policies and to improve rule consistency and clarity. Certain rule revisions would increase the ability of regulated parties to self-implement portions of code and reduce the number of regulatory reviews required. Many of the proposed rule revisions would create consistency among code chapters and between federal and state approaches for determining standards for soil remediation. Rule changes would also improve administrative code organization and consistency related to cleanup standards for different types of media.
The proposed rule changes would clarify and simplify the requirements for soil cleanups in Wisconsin, create additional efficiencies, increase code self-implementation, and reflect department experience and methodological changes over the last decade. The proposed rule changes would include updates to chs. NR 720 and 722, Wis. Adm. Code, which have not been updated since 2013, and other related administrative code updates. The department evaluated the option of not pursuing rule revisions at this time. While this option allows for continued regulation of contaminated soil cleanup that has proved effective in protecting the environment and public health, a decision not to pursue rule revisions limits the department’s flexibility in determining soil cleanup standards and ability to streamline regulatory requirements and soil cleanup processes for persons conducting soil cleanup. Without this rule, the department would continue to evaluate a greater number of requests for exceptions to soil cleanup RCLs and performance standards on a more time consuming, case-specific basis.
