NR 722.01
NR 722.01
Purpose. The purpose of this chapter is to establish minimum standards for identifying and evaluating remedial action options and selecting remedial actions. This chapter is adopted pursuant to ss.
227.11 (2),
287.03 (1) (a),
287.05, and
289.06 (1) and
(2), Stats., and
ch. 292, Stats.
NR 722.02(1)(1) This chapter applies to all remedial actions taken by the department under the authority of
ch. 292, Stats. This chapter does not apply to immediate actions or interim actions, unless specifically noted in
ch. NR 708. In this chapter, where the term “responsible parties" appears, it shall be read to include the department, where a department–funded remedial action is being taken.
NR 722.02(2)
(2) Unless otherwise specified elsewhere in
chs. NR 700 to
NR 754, this chapter applies to all remedial actions taken by responsible parties at sites, facilities or portions of a site or facility that are subject to regulation under
ch. 292, Stats., regardless of whether there is direct involvement or oversight by the department, except for those sites or facilities being addressed under the dry cleaner response program.
NR 722.02 Note
Note: Sites being addressed under the dry cleaner response program are exempt because the comparison of remedies is accomplished through the remedial action bidding process, which requires 3 to 6 alternative bids to be compared before a remedy is selected.
NR 722.02(2m)
(2m) This chapter applies to all remedial actions taken by persons seeking the liability exemption under s.
292.15, Stats. In this chapter, where the term “responsible party" appears, it shall be read to include the “voluntary party" where an action is being undertaken to comply with s.
292.15, Stats.
NR 722.02(3)
(3) In addition to being applicable to sites or facilities that are subject to regulation under
ch. 292, Stats.,
ch. NR 722 applies to the evaluation of proposed remedial action options for solid waste facilities where remedial action is required by the department pursuant to
ch. NR 508.
NR 722.02 Note
Note: Persons who wish to conduct response actions that will be consistent with the requirements of CERCLA and the National Contingency Plan (NCP) may request that the department enter into a contract with them pursuant to s.
292.31 or a negotiated agreement under s.
292.11 (7) (d), Stats. However, a CERCLA–quality response action will likely require compliance with additional requirements beyond those contained in chs.
NR 700 to
754 in order to be consistent with CERCLA and the NCP.
NR 722.02(4)
(4) 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 requirements shall control. The department shall, after receipt of a written request and appropriate
ch. NR 749 fee from a responsible party, provide a letter that indicates which regulatory program or programs the department considers to be applicable to a site or facility.
NR 722.02 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 the solid waste statutes in ch.
289, Stats., or the hazardous waste management act, ch.
291, Stats., and the administrative rules adopted pursuant to those statutes. In addition, federal authorities such as CERCLA, RCRA, or TSCA may also apply to a site or facility or portions of a site or facility. One portion of a site or facility may be regulated under a different statutory authority than other portions of that site or facility.
NR 722.02 History
History: Cr.
Register, April, 1995, No. 472, eff. 5-1-95; cr. (2m),
Register, February, 1996, No. 482, eff. 3-1-96; emerg. am. (1) to (3), cr. (3m), eff. 5-18-00; am. (1) to (3), cr. (3m),
Register, January, 2001, No. 541, eff. 2-1-01; correction in (3) made under s. 13.93 (2m) (b) 7., Stats.,
Register, January, 2001, No. 541;
CR 12-023: am. (1), (2), (2m), (3), r. (3m), am. (4)
Register October 2013 No. 694, eff. 11-1-13.
NR 722.03 History
History: Cr.
Register, April, 1995, No. 472, eff. 5-1-95;
CR 12-023: renum. (intro.) to 722.03, r. (1), (2)
Register October 2013 No. 694, eff. 11-1-13.
NR 722.05(1)(1) Responsible parties shall select an appropriate remedial action or combination of remedial actions for implementation under this chapter, unless the department makes the selection under
sub. (2).
NR 722.05(2)
(2) The department shall select the remedial action for the following types of sites or facilities:
NR 722.05(2)(b)
(b) Sites or facilities being addressed under a contract with the department under s.
292.31, Stats.
NR 722.05(2)(c)
(c) Department–funded response actions. For those sites or facilities where the department is responsible for selecting the appropriate remedy, significant consideration shall be given to options that provide for long-term sustainability.
NR 722.05(3)
(3) The department shall document the remedial action selected for those sites or facilities listed in
sub. (2) following the requirements of
s. NR 722.07, at a minimum, and conduct the applicable public participation and notification activities as required in
ch. NR 714.
NR 722.05(4)
(4) To select a remedy or combination of remedies, responsible parties shall identify, evaluate and document an appropriate range of remedial action options to address each contaminated medium in accordance with the requirements of this chapter, when one of the following happens:
NR 722.05(5)
(5) The identification, evaluation and documentation of an appropriate set of remedial action options, to address each medium and migration or exposure pathway shall be based on the complexity of the site or facility and the legal requirements applicable to the response action and the site or facility.
NR 722.05 Note
Note: Each remedial action option identified may be used to address more than one contaminated medium or migration or exposure pathway if that remedial action option would be protective of public health, safety and welfare and the environment for each media and migration or exposure pathway that it is proposed to address.
NR 722.05(6)
(6) The evaluation and documentation of an appropriate set of remedial action options shall be conducted by a qualified person or persons pursuant to
s. NR 712.07 and shall be signed and sealed by the qualified person or persons in accordance with
s. NR 712.09.
NR 722.05 History
History: Cr.
Register, April, 1995, No. 472, eff. 5-1-95;
CR 12-023: am. (2) (b), (c), (4)
Register October 2013 No. 694, eff. 11-1-13.
NR 722.07
NR 722.07
Identification and evaluation of remedial action options. NR 722.07(1)(1)
General. Unless otherwise directed by the department, responsible parties shall identify and evaluate an appropriate range of remedial action options in accordance with the requirements of this section.
NR 722.07(2)
(2) Identification of likely remedial action options. An initial screening of remedial technologies shall be conducted to identify remedial action options for further evaluation which are reasonably likely to be feasible for a site or facility, based on the hazardous substances present, media contaminated and site characteristics, and to comply with the requirements of
s. NR 722.09.
NR 722.07(3)(a)(a) Except as provided in
par. (b), responsible parties shall use all of the criteria in
sub. (4) to further evaluate appropriate remedial action options that have been identified for further evaluation under
sub. (2), for each contaminated medium or migration or exposure pathway. This evaluation process shall be used to determine which remedial action option constitutes the most appropriate technology or combination of technologies to restore the environment, to the extent practicable, within a reasonable period of time and to minimize the harmful effects of the contamination to the air, land, or waters of the state, to address the exposure pathways of concern, and effectively and efficiently address the source of the contamination.
NR 722.07 Note
Note: The purpose of the technical and economic feasibility evaluation is to evaluate a range of remedial action options suitable for a particular site or facility to determine the practicability of implementing those options. If a particular option is not suitable for a particular site or facility, such as in situ air sparging in dense clay soils, it should not be evaluated. Emphasis should be placed on remedial action options suitable for a particular site or facility. Any remedy selected should attempt to limit secondary impacts including air and water discharges, destruction of ecosystems, and excessive use of energy.
NR 722.07 Note
Note: For cases involving a discharge and migration of organic contaminants that do not readily degrade in soil or groundwater, an active remedial action that will reduce the contaminant mass and concentration will typically be necessary. Natural attenuation, covers, and barriers do not actively reduce contaminant mass and concentrations. Chlorinated compounds are the most common contaminants that fall under this provision. Some organic contaminants, such as PCBs and PAHs may not readily migrate, depending on site characteristics.
NR 722.07(3)(am)
(am) Responsible parties shall document their evaluation of a remedial option or combination of options which would use recycling or treatment technologies that destroy or detoxify contaminants, rather than transfer the contaminants to other media.
NR 722.07(3)(b)
(b) A detailed evaluation based on the criteria in
sub. (4) is not required in those cases where a remedial action option identified during the initial screening results in the reuse, recycling, destruction, detoxification, treatment, or any combination thereof of the hazardous substances present at the site and this proposed option meets all of the following requirements:
NR 722.07(3)(b)1m.
1m. Is proven to be effective in remediating the types of hazardous substances present at the site, based on experience gained at other sites with similar site characteristics and conditions;
NR 722.07(3)(b)2m.
2m. Can be implemented in a manner that will not pose a significant risk of harm to human health, safety, or welfare or the environment; and
NR 722.07(3)(b)3.
3. Is likely to result in the reduction or control, or both, of the hazardous substances present at the site to a degree and in a manner that is in compliance with the requirements of
s. NR 722.09 (2) to
(4).
NR 722.07 Note
Note: Section
NR 722.07 (3) (b) is intended to provide a streamlined evaluation process for certain remedial actions that are presumed to meet the evaluation and selection criteria in ss.
NR 722.07 and
722.09.
NR 722.07(4)
(4) Evaluation criteria. Except as provided in
s. NR 722.07 (3) (b), the remedial action options identified by the initial screening shall be evaluated based on the following requirements and in compliance with the requirements of
s. NR 722.09.
NR 722.07(4)(a)
(a) Technical feasibility. The technical feasibility of each appropriate remedial action option that effectively and efficiently addresses the sources of contamination shall be evaluated using the following criteria:
NR 722.07(4)(a)1.
1. `Long-term effectiveness.' The long-term effectiveness of appropriate remedial action options, taking into account all of the following:
NR 722.07(4)(a)1.a.
a. The degree to which the toxicity, mobility and volume of the contamination is expected to be reduced.
NR 722.07(4)(a)1.b.
b. The degree to which a remedial action option, if implemented, will protect public health, safety, and welfare and the environment over time.
NR 722.07(4)(a)2.
2. `Short-term effectiveness.' The short-term effectiveness of appropriate remedial action options, taking into account any adverse impacts on public health, safety, or welfare or the environment that may be posed during the construction and implementation period until case closure under
ch. NR 726.
NR 722.07(4)(a)3.
3. `Implementability.' The implementability of appropriate remedial action options, taking into account all of the following:
NR 722.07(4)(a)3.a.
a. The technical feasibility of constructing and implementing the remedial action option at the site or facility given the type of contaminants and hydrogeologic conditions present.
NR 722.07(4)(a)3.b.
b. The availability of materials, equipment, technologies, and services needed to conduct the remedial action option taking into account the location and environmental impact of the selected materials and equipment.
NR 722.07(4)(a)3.c.
c. The potential difficulties and constraints associated with on-site construction or off-site disposal and treatment.
NR 722.07 Note
Note: For example, evaluate the use of heavy equipment and cost of fuel to transport wastewater and leachate from a site compared to on-site treatment.
NR 722.07(4)(a)3.d.
d. The difficulties associated with monitoring the effectiveness of the remedial action option.
NR 722.07(4)(a)3.e.
e. The administrative feasibility of the remedial action option, including activities and time needed to obtain any necessary licenses, permits or approvals.
NR 722.07(4)(a)3.g.
g. The technical feasibility of recycling, treatment, engineering controls or disposal.
NR 722.07(4)(a)3.h.
h. The technical feasibility of naturally occurring biodegradation at the site or facility, if responsible parties evaluate this option.
NR 722.07(4)(a)3.i.
i. The redevelopment potential of the site once the remedy has been implemented.
NR 722.07(4)(a)3.j.
j. Reduction of greenhouse gases consistent with federal or state climate action policies.
NR 722.07(4)(a)4.
4. `Restoration time frame.' The expected time frame needed to achieve the necessary restoration, taking into account all of the following qualitative criteria:
NR 722.07(4)(a)4.c.
c. Presence of threatened or endangered species or habitats, as defined by state and federal law.
NR 722.07(4)(a)4.d.
d. Current and potential use of the aquifer, including proximity to private and public water supplies and surface water bodies.
NR 722.07(4)(a)4.g.
g. Effectiveness, reliability, and enforceability of continuing obligations.
NR 722.07(4)(a)4.h.
h. Naturally occurring biodegradation processes at the site or facility which are expected to reduce the total mass of contamination in an effective and timely manner and which have been demonstrated to be occurring at the site or facility, to the satisfaction of the department in the site investigation report.
NR 722.07 Note
Note: The biogeochemical environment and the contaminant of concern are critical factors in determining degradation potential. Not all compounds readily degrade in soil or groundwater, while others, such as certain petroleum compounds have a greater degradation potential.
NR 722.07 Note
Note: The purpose of s.
NR 722.07 (4) (a) 4. is to provide criteria to determine how quickly environmental laws and standards must be achieved, due to the site-specific hazards that the contamination poses. It is not intended to authorize risk assessments, nor is it the intent of this provision to establish a generic time period that would be applied at all sites or facilities.
NR 722.07(4)(b)
(b) Economic feasibility. The economic feasibility of each appropriate remedial action option that effectively and efficiently addresses the source of the contamination shall be evaluated, using the following criteria:
NR 722.07(4)(b)4.
4. Total present worth of the costs for all national priority list sites or facilities; sites or facilities where the department has entered into a contract pursuant to s.
292.31 (1) (b), Stats.; and sites or facilities where state environmental fund monies are being expended; and
NR 722.07(5)(a)(a) Engineering controls. If engineering controls are considered, responsible parties shall, at a minimum, evaluate an on-site engineering control to address all hazardous substances, contaminated media and migration or exposure pathways.
NR 722.07 Note
Note: Engineering controls include on–site or off–site containment methods, such as covers, soil covers, engineered structures, liners, gas collection systems, armoring of sediments, erosion controls, vapor mitigation systems, and groundwater slurry walls. Restricting access to a site or facility, such as constructing a fence, is not an engineering control.
NR 722.07(5)(b)
(b) Continuing Obligations. Responsible parties shall consider the appropriateness of using continuing obligations to ensure that adequate protection of public health, safety, and welfare and the environment is maintained over time.
NR 722.07(5)(c)
(c) Additional requirements. Responsible parties shall comply with additional site–specific remedial action evaluation or documentation requirements that may be specified by the department due to the complexity of the site or facility, the persistence of certain compounds, or the severity of the potential or actual public health or environmental impacts.
NR 722.07 History
History: Cr.
Register, April, 1995, No. 472, eff. 5-1-95;
CR 12-023: am. (3) (a), cr. (3) (am), am. (b) (intro.), r. (3) (b) 1., 2., renum. (3) (b) 2. a. to c. to (3) (b) 1m, 2., 3. and am. (3) (b) 3., am. (4) (a) (intro.), 3. a., b., cr. (4) (a) 3. i., j., am. (4) (a) 4. d., g., cr. (4) (a) 4. i., am. (4) (b) (intro.), r. (4) (b) 1., renum. (4) (b) 1. a. to e. to (4) (b) 1m., 2m., 3., 4., 5. and am. (4) (b) 4., r. (4) (b) 2., am. (5) (b), (c)
Register October 2013 No. 694, eff. 11-1-13.
NR 722.09
NR 722.09
Selection of a remedial action. NR 722.09(1)
(1)
General. An option from the range of technically feasible options shall be selected based on the results of the evaluation conducted pursuant to
s. NR 722.07, in compliance with this section. If an option's cost, including all the costs listed in
s. NR 722.07 (4) (b), is excessive with respect to what is being technically achieved by the option relative to other available options, responsible parties may choose not to select it.
NR 722.09(2)
(2) Environmental laws and standards. Responsible parties shall select a remedial action or combination of remedial actions that achieve restoration of the environment to the extent practicable, minimize the harmful effects from the contamination on the air, lands and waters of the state and comply with all applicable state and federal public health and environmental laws and environmental standards. Environmental laws and standards include:
