NR 720.02 Note
Note: U.S. EPA has independent authority to regulate soil contamination from PCB's under the toxic substances control act. The department and EPA have entered into an MOA that specifies how responsibility for these types of sites will be determined. The MOA can be found at:
http://dnr.wi.gov/files/pdf/pubs/rr/rr786.pdf.
NR 720.02(2)
(2) This chapter applies to interim actions taken by responsible parties or other persons under s.
292.15, Stats., when at the completion of both the site investigation and interim action taken to address contaminated soil, the responsible parties or persons taking action under s.
292.15, Stats., request that the site or facility be closed out in accordance with
ch. NR 726, without taking a subsequent remedial action to address the contaminated soil.
NR 720.02(3)
(3) This chapter applies to remedial actions taken by the department where a department-funded response action is being taken under the authority of
ch. 292, Stats.
NR 720.02(4)
(4) Concentrations of legally applied pesticides are exempt from the requirements of this chapter when all of the following conditions are met:
NR 720.02(4)(a)
(a) The application of the pesticide was done in compliance with:
NR 720.02(4)(b)
(b) For pesticides that are intended to be applied to the soil, pesticide concentrations exceeding soil cleanup standards are only found in the surface soil layer, where the pesticide is expected to perform its intended purpose, and only at concentrations that would be expected from pesticide application, in compliance with the pesticide label requirements.
NR 720.02 Note
Note: The depth of the surface layer of soil will vary depending on the type of pesticide applied and the appropriate intended use of that pesticide.
NR 720.02(5)
(5) The department may exercise enforcement discretion on a case-by-case basis and choose to regulate a site, facility or a portion of a site or facility under only one of a number of potentially applicable statutory authorities. However, where overlapping restrictions or requirements apply, the more restrictive control. The department shall, after receipt of a request from a responsible party, provide a letter that indicates which regulatory program or programs the department considers to be applicable.
NR 720.02 Note
Note: Sites, facilities or portions of a site or facility that are subject to regulation under ch.
292, Stats., may also be subject to regulation under other statutes, including solid waste statutes, ch.
289, Stats., or the hazardous waste management act, ch.
291, Stats., and the administrative rules adopted pursuant to those statutes. One portion of a site or facility may be regulated under a different statutory authority than other portions of that site or facility. When necessary, the department will, to the best of its ability, facilitate coordination between the regulatory programs involved.
NR 720.02(6)
(6) The department may take any action within the context of regulatory programs established in statutes or rules outside this chapter, if those actions are necessary to protect public health, welfare, or safety or prevent a damaging effect on the environment for present and future uses, whether or not a soil cleanup standard has been adopted under this chapter.
NR 720.02(7)
(7) Nothing in this chapter authorizes an impact on soil quality that would cause a violation of a groundwater quality standard contained in
ch. NR 140, an impact on soil quality or groundwater quality that would cause a violation of a surface water quality standard contained in
chs. NR 102 to
106 or an impact on soil quality that would cause a violation of an air quality standard contained in
chs. NR 400 to
499.
NR 720.02 History
History: Cr.
Register, March, 1995, No. 471, eff. 4-1-95; cr. (1) (d), am. (2);
Register, February, 1996, No. 482, eff. 3-1-96; emerg. am. (1) (intro.), cr. (1m), eff. 5-18-00; am. (1) (intro.), cr. (1m),
Register, January, 2001, No. 541, eff. 2-1-01; corrections in (1) (b) made under s. 13.93 (2m) (b) 7., Stats.,
Register September 2007 No. 621;
CR 12-023: am. (1) (intro.), (a), (b), cr. (1) (e), r. (1m), am. (3),
Register October 2013 No. 694, eff. 11-1-13.
NR 720.03
NR 720.03
Definitions. In this chapter:
NR 720.03(1)
(1) “Aquifer" means a saturated subsurface geological formation of rock or soil.
NR 720.03(1m)
(1m) “Ceiling limit concentration" means a preset non-risk based concentration of an inorganic or semi-volatile chemical.
NR 720.03 Note
Note: This definition is consistent with the approach used in the U.S. EPA's Regional Screening Table which sets a ceiling limit concentration of 100,000 mg/kg or 10% by weight for a relatively non-toxic chemical in a soil sample. This definition is not the same as in other natural resources administrative rules. For example, the term ceiling limit in ch.
NR 204 refers to the concentration of certain metals in domestic sludge that if exceeded would result in the sludge not being eligible for land application.
NR 720.03(2)
(2) “Contaminant of concern" means a hazardous substance that is present at a site or facility in such concentrations that the contaminant poses an actual or potential threat to human health, safety, or welfare or the environment based upon:
NR 720.03(2)(a)
(a) The toxicological characteristics of the hazardous substance that influence its ability to adversely affect human health or the environment relative to the concentration of the hazardous substance at the site or facility;
NR 720.03(2)(b)
(b) The chemical and physical characteristics of the hazardous substance which govern its tendency to persist in the environment and the chemical, physical and biological characteristics at the site or facility which govern the tendency for the hazardous substance to persist at the site or facility;
NR 720.03(2)(c)
(c) The chemical and physical characteristics of the hazardous substance which govern its tendency to move into and through environmental media;
NR 720.03(2)(d)
(d) The naturally occurring background concentrations of the hazardous substance;
NR 720.03(2)(e)
(e) The thoroughness of the testing for the hazardous substance at the site or facility;
NR 720.03(2)(f)
(f) The frequency that the hazardous substance has been detected at the site or facility; and
NR 720.03(3)
(3) “Cumulative excess cancer risk" means the upper bound on the estimated excess cancer risk associated with exposure to multiple hazardous substances or multiple exposure pathways.
NR 720.03(3m)
(3m) “Dermal absorption" means systemic exposure via skin absorption. However, because dermal toxicity factors are not available, oral-to-dermal extrapolation is done by adjusting for gastrointestinal absorption in order to derive toxicity values in terms of a dermally-absorbed dose.
NR 720.03 Note
Note: Dermal toxicity values that are extrapolated from oral toxicity values may not take into account allergic contact responses or skin cancer.
NR 720.03(4)
(4) “Direct contact" means human exposure to substances in soil through one or more of the following pathways: inhalation of particulate matter,
dermal absorption, incidental ingestion, or inhalation of vapors from the soil.
NR 720.03(5)
(5) “Hazard index" means the sum of 2 or more hazard quotients for multiple hazardous substances or multiple exposure pathways.
NR 720.03(6)
(6) “Hazard quotient" means the ratio of the exposure of a single hazardous substance over a specified time period to a reference dose, or reference concentration where appropriate, for that hazardous substance derived for a similar exposure period.
NR 720.03 Note
Note: Hazard quotients and hazard indices are measures of the potential for noncarcinogenic effects.
NR 720.03(7)
(7) “Incidental ingestion of soil" means ingestion of soil by humans as a result of normal hand-to-mouth behaviors.
NR 720.03(8)
(8) “Inhalation of particulate matter" means inhalation by humans of contaminants adsorbed to respirable soil particles less than 10 microns in diameter.
NR 720.03(9m)
(9m) “Inhalation of vapors" means inhalation by humans of soil contaminants that volatilized into outdoor air.
NR 720.03(11)
(11) “Pathway" means the route a substance takes in traveling to a receptor or potential receptor or the specific portal of entry, such as lungs, skin or digestive tract, the substance takes to potentially express its toxic effect, or both.
NR 720.03 Note
Note: An example of the food chain pathway is when a substance is taken up from soil to plant tissue and the plant tissue is then ingested by a person.
NR 720.03(12m)
(12m) “Performance standard" means a remedial action or, in some cases existing site conditions that prevent exposure to contaminants or will result in a decrease in contaminant concentrations, or both.
NR 720.03(13)
(13) “Restricted access areas" means land immediately adjacent to highways or railroad right-of-ways, where the presence of structural controls, such as fencing, has eliminated pedestrian ingress by the public.
NR 720.03(14)
(14) “Risk" means the probability that a hazardous substance, when released to the environment, will cause carcinogenic effects in exposed humans or other biological receptors.
NR 720.03(15)
(15) “Soil cleanup standard" means either a residual contaminant level determined in accordance with
ss. NR 720.10 or
720.12, or a soil performance standard determined in accordance with
s. NR 720.08.
NR 720.03(16)
(16) “Soil saturation concentration" or “Csat" means the contaminant concentration in soil at which the absorptive limits of the soil particles, the solubility limits of the soil particles, the solubility limits of the soil pore-water, and saturation of soil pore-air have been reached. At concentrations greater than Csat, the soil contaminant may be present in free phase for contaminants that are liquid at ambient soil temperatures and pure solid phases for compounds that are solid at ambient soil temperatures.
NR 720.03 History
History: Cr.
Register, March, 1995, No. 471, eff. 4-1-95; corrections in (12) (c) made under s. 13.93 (2m) (b) 7., Stats.,
Register September 2007 No. 621;
CR 12-023: cr. (1m), (3m), am. (4), (8), r. (9), cr. (9m), r. (10), (12), cr. (12m), am. (14), cr. (15), (16)
Register October 2013 No. 694, eff. 11-1-13.
NR 720.05(1)(1)
Remedial action. Responsible parties shall select and implement a remedial action to address soil contamination when, after any of the following investigations has been completed, information collected during the investigation indicates that a remedial action to address soil contamination is necessary to achieve compliance with the requirements of this chapter:
NR 720.05(1)(b)
(b) Solid waste site investigation report prepared in accordance with the requirements of
ch. NR 508.
NR 720.05(1)(c)
(c) Investigation done under a hazardous waste closure plan or a RCRA facility investigation report, developed in accordance with the requirements of subchs.
G and
H of ch. NR 664 or
s. NR 664.0100.
NR 720.05 Note
Note: Remedial actions at some types of sites or facilities, such as the abandonment of wastewater lagoons, may only have to comply with ch.
NR 720 and not other requirements in the NR 700 series, such as the minimum site investigation requirements in ch.
NR 716. In this case, the department or responsible parties may choose to use the other chapters of the NR 700 rule series as guidance for complying with ch.
NR 720.
NR 720.05(2)
(2) Residual contaminant levels or performance standards. Remedial actions conducted by responsible parties to address soil contamination shall be designed and implemented to restore the contaminated soil to levels that, at a minimum, meet the residual contaminant levels or performance standards for the site or facility determined in accordance with this chapter.
NR 720.05(3)
(3) No further action. If all soil contaminant concentrations meet applicable residual contaminant levels or performance standards after a remedial action is completed, the department may not require further remedial action for soils, unless the department determines that the residual soil contamination:
NR 720.05(3)(a)
(a) Presents a threat to public health, safety, or welfare or the environment at the site or facility;
NR 720.05(4)(a)(a) Unless otherwise directed by the department, submittals under this chapter shall be included in the site investigation report or the draft remedial action options report required under
s. NR 700.11 (1).
NR 720.05(4)(b)
(b) Submittals to the department under this chapter shall include all of the following:
NR 720.05(4)(b)1.
1. Complete background information and supporting documentation for the procedure to be used.
NR 720.05(4)(b)2.
2. Documentation that the application of the procedure is valid for the site or facility under consideration.
NR 720.05(4)(b)3.
3. Necessary data and documentation needed to fully evaluate the submittal.
NR 720.05(4)(b)4.
4. Legible copies of source documents or pertinent portions of source documents.
NR 720.05 Note
Note: In order to facilitate department review of submittals, legible copies of entire source documents or the pertinent portions of source documents sufficient to evaluate the method or procedure used should be included with the submittal.
NR 720.05(5)(a)(a) Responsible parties shall identify the current land use and zoning for the site or facility by the time the remedial action is selected, unless otherwise directed by the department.
NR 720.05(5)(b)
(b) Responsible parties shall classify the land use of a site or facility as industrial if all of the following criteria are met:
NR 720.05(5)(b)1.
1. The site or facility is currently zoned for, or otherwise officially designated for, industrial use.
NR 720.05 Note
Note: Typically, a site or facility is officially designated for industrial use by the issuance of a conditional use or special exception permit that allows an industrial use of that site or facility in a non-industrial zoning district or by the designation of an area as industrial in a county development plan or a municipal master plan, among other means.
NR 720.05(5)(b)2.
2. More stringent non-industrial residual contaminant levels for soil are not necessary to protect public health on or off the site or facility.
NR 720.05 Note
Note: Situations where a non-industrial classification would apply include site or facilities which could otherwise be classified as industrial, but where proximity to a non-industrial land use, such as residential housing located across the street, makes a non-industrial classification more appropriate.
NR 720.05(5)(c)
(c) An industrial land use classification may be applied to restricted access areas unless more stringent residual contaminant levels are necessary to protect public health on or off the site.
NR 720.05 Note
Note: Under ch.
NR 726, a continuing obligation will be imposed as part of the case closure letter if residual contaminant levels are based on industrial exposure or if a soil performance standard is used.
NR 720.05 History
History: Cr.
Register, March, 1995, No. 471, eff. 4-1-95; corrections in (1) (c) made under s. 13.93 (2m) (b) 7., Stats.,
Register September 2007 No. 621;
CR 12-023: cr. (1) (title), am. (1) (b), (c), cr. (2) (title), am. (2), cr. (3) (title), am. (3) (intro.), cr. (4), (5)
Register October 2013 No. 694, eff. 11-1-13.
NR 720.07
NR 720.07
General requirements when establishing soil cleanup standards applicable to a site or facility. NR 720.07(1)(a)(a) Responsible parties shall use information from the sources listed in
s. NR 720.05 (1) to determine the residual contaminant levels or performance standards for each exposure or migration pathway of concern for each soil contaminant of concern at a site or facility in accordance with this chapter.
NR 720.07(1)(b)
(b) In addition to meeting the requirements of
par. (c), responsible parties shall establish the soil cleanup standard for each soil contaminant of concern at the site or facility as one of the following:
NR 720.07(1)(b)1.
1. The residual contaminant level of each contaminant in soil which is the lowest concentration from among the following as applicable: the ceiling limit concentration, the soil saturation concentration if the contaminant is a volatile, a land use specific direct contact level, a groundwater quality protective level, a concentration calculated for a pathway of concern set forth in s. NR 720.13 all of which are determined in accordance with the requirements of this chapter.
NR 720.07 Note
Note: For a single contaminant, a numeric land use specific residual contaminant level is determined based on aggregate exposure through incidental ingestion of soil, inhalation of soil vapors and particulates, and dermal contact with soil. When more than one contaminant is present, the residual contaminant level is determined based on cumulative exposure and may have to be adjusted downward so that the cumulative risk does not exceed an excess cancer risk of 1-in-100,000 or a hazard index of 1 for non-carcinogens.
NR 720.07(1)(c)
(c) In addition to meeting the requirements of
par. (b), a soil cleanup standard developed under this chapter shall comply with all the following requirements:
NR 720.07(1)(c)1.
1. Residual soil contamination at the site or facility may not adversely affect surface water.
NR 720.07(1)(c)2.
2. Residual soil contamination at the site or facility may not adversely affect a sensitive environment.
NR 720.07(1)(c)3.
3. Residual soil contamination at the site or facility may not concentrate through plant uptake and adversely affect the food chain.
NR 720.07(1)(c)4.
4. Residual soil contamination at the site or facility may not result in vapor concentrations reaching a substance's lower explosive limit.
