Chapter NR 722

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.f. f. The presence of any federal or state, threatened or endangered species.

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.a. a. Proximity of contamination to receptors.

NR 722.07(4)(a)4.b. b. Presence of sensitive receptors.

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.e. e. Magnitude, mobility and toxicity of the contamination.

NR 722.07(4)(a)4.f. f. Geologic and hydrogeologic conditions.

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(4)(a)4.i. i. The degradation potential of the compounds.

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)1m. 1m. Capital costs, including both direct and indirect costs;

NR 722.07(4)(b)2m. 2m. Initial costs, including design and testing costs;

NR 722.07(4)(b)3. 3. Annual operation and maintenance costs;

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(4)(b)5. 5. Costs associated with potential future liability.

NR 722.07(5) (5) Additional requirements.

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:

NR 722.09(2)(a) (a) Soils. Contaminated soil shall be restored in compliance with the requirements of ch. NR 720.

NR 722.09 Note Note: Chapter NR 720 provides for residual contaminant levels or performance standards. If residual contaminant levels are used instead of performance standards they must be determined in accordance with the requirements set forth in ch. NR 720. A performance standard maintains a condition that is protective of human health, safety and welfare and the environment. Use of a performance standard will involve land use restrictions, maintenance agreements, long–term monitoring or a combination of these.

NR 722.09(2)(b) (b) Groundwater. Contaminated groundwater shall be restored in accordance with all of the following requirements:

NR 722.09(2)(b)1. 1. For substances that are listed in ch. NR 140, the groundwater restoration goal is the preventive action limit. The preventive action limits shall be achieved to the extent technically and economically feasible, pursuant to ss. NR 140.24 and 140.26, unless a PAL exemption is granted pursuant to s. NR 140.28.

NR 722.09(2)(b)2. 2. For substances which do not have an established standard in ch. NR 140, the department may take or require the responsible parties to conduct any necessary actions, such as developing site–specific environmental standards in cooperation with the department of health services, to protect public health, safety, or welfare or to prevent a significant damaging effect on groundwater or surface water quality for present or future consumptive or non–consumptive uses.

NR 722.09(2)(c) (c) Surface water and wetlands.

NR 722.09(2)(c)1. 1. Discharges to surface waters or wetlands may not result in a surface water quality standard contained in chs. NR 102 to 106 being exceeded and may not exceed effluent limitations established by the department based on “best available control technology currently available” or, where appropriate, “best available control technology economically achievable,” in accordance with ch. NR 220.

NR 722.09(2)(c)2. 2. For substances that do not have established criteria in ss. NR 102.14 and 105.05 to 105.09, discharges to surface waters or wetlands may not exceed site-specific water quality criteria established by the department pursuant to the general standards of ss. NR 102.04 (1) (d) and 103.03 (2) (d).

NR 722.09 Note Note: The water quality standards contained in chs. NR 102 to 106 are comprised of water quality criteria for the prevention of adverse tastes and odors in fish and drinking water (s. NR 102.14), acute and chronic toxicity to aquatic life (ss. NR 105.05 and 105.06, respectively), adverse effects to wild and domestic animals (s. NR 105.07), human threshold and cancer effects (ss. NR 105.08 and 105.09, respectively) and designated uses of the surface waters based on their classification and water quality standards and criteria for wetlands. Chapter NR 220 provides that for those point sources identified in s. NR 220.21 (1), the department shall establish effluent limitations that are achievable by the application of the “best practicable control technology currently available” or, where appropriate, the “best available control technology economically achievable”, as required in s. NR 220.21 (2).

NR 722.09(2)(c)3. 3. At sites or facilities in, or in close proximity to, surface water bodies or wetlands, active remedial actions shall be taken to prevent or minimize, to the extent practicable, potential and actual hazardous substance discharges and environmental pollution that may attain or exceed surface water or wetland criteria established in accordance with chs. NR 102 to 106.

NR 722.09(2)(d) (d) Discharges to the air. All emissions to the air shall comply with applicable requirements in ch. 285, Stats., chs. NR 400 to 499, and any other applicable federal or state environmental laws. In addition, for those sites or facilities where a discharge of volatile hazardous substances has occurred, the vapor intrusion pathway shall be evaluated to determine the likelihood of those substances entering the breathing space of a structure. Air contaminated from vapor intrusion shall be restored in accordance with the following requirements:

NR 722.09(2)(d)1. 1. At sites or facilities where vapors have migrated from the source of contamination, active remedial actions shall be taken to limit or prevent, to the extent practicable, potential and actual hazardous substance discharges and environmental pollution that may attain or exceed vapor action levels.

NR 722.09(2)(d)2. 2. The department may take or require the responsible parties to conduct any necessary actions, such as developing site–specific environmental standards in cooperation with the department of health services, to protect public health, safety, or welfare or to prevent a significant damaging effect on indoor air quality for present or future use.

NR 722.09(2)(e) (e) Hazardous and solid waste.

NR 722.09(2)(e)1. 1. Any waste, debris or waste stream generated by the remedial action shall be managed in compliance with all applicable state and federal laws and regulations. Contaminated debris, at a minimum, shall be addressed to minimize the harmful effects to protect health, safety, and welfare and the environment.

NR 722.09(2)(e)2. 2. Management of materials contaminated with polychlorinated biphenyls (PCBs) shall comply with the requirements of ch. NR 157 and TSCA, if applicable.

NR 722.09(2m) (2m) Sustainable remedial action. Once the remedial action has been selected, the responsible party shall evaluate all of the following criteria, as appropriate for the selected remedial action:

NR 722.09(2m)(a) (a) Total energy use and the potential to use renewable energy.

NR 722.09(2m)(b) (b) The generation of air pollutants, including particulate matter and greenhouse gas emissions.

NR 722.09(2m)(c) (c) Water use and the impacts to water resources.

NR 722.09(2m)(d) (d) The future land use and enhancement of ecosystems, including minimizing unnecessary soil and habitat disturbance and destruction.

NR 722.09(2m)(e) (e) Reducing, reusing, and recycling materials and wastes, including investigative or sampling wastes.

NR 722.09(2m)(f) (f) Optimizing sustainable management practices during long-term care and stewardship.

NR 722.09 Note Note: Tradeoffs will exist when evaluating these criteria and responsible parties need to balance both the benefits and risks to human health and the environment when selecting and implementing the best overall approach. Additional information can be obtained from U.S. EPA at: http://www.clu-in.org/greenremediation/.

NR 722.09(3) (3) Additional standards of performance. Each remedial action or combinations of actions shall protect public health, safety and welfare and the environment from all contaminated media, routes of exposure and contamination at the site or facility. Responsible parties shall presume that a remedial action option or combination of options is protective if it meets the criteria in sub. (2), unless the responsible party or the department determines that compliance with applicable public health and environmental laws, including environmental standards, is not protective of public health, safety, or welfare or the environment due to multiple pathways of exposure or synergistic effects of contamination. At sites or facilities where there may be synergistic effects of contamination, multiple pathways of exposure or both that pose an unacceptable threat to public health, safety or welfare or the environment, responsible parties shall attain more stringent, facility or site-specific numeric standards to ensure that public health, safety and welfare and the environment are protected. In such a situation, the department may require that the responsible parties develop a site-specific numeric or performance standard, or both, that is protective of public health, safety and welfare and the environment for the specific media, migration or exposure pathways and contamination.

NR 722.09(4) (4) Landfill disposal of untreated contaminated unconsolidated material. Responsible parties may only select landfill disposal for untreated contaminated unconsolidated material if such disposal is in compliance with chs. NR 500 to 538, the landfill’s approved plan of operation and both of the following requirements:

NR 722.09(4)(a) (a) Use of untreated contaminated unconsolidated material.

NR 722.09(4)(a)1. 1. Except as provided in subd. 2., untreated contaminated unconsolidated material may only be accepted by the landfill operator for use as daily cover in accordance with s. NR 514.04 (6), if the volume of untreated contaminated unconsolidated material that is proposed to be used as daily cover does not exceed the landfill’s net daily cover needs nor 12.5% of the annual volume of waste received by the landfill, or for use in the construction of soil structures within the fill area when approved for that specific use by the department, unless otherwise specifically provided in the landfill’s individual license and approved plan of operation.

NR 722.09(4)(a)2. 2. Untreated contaminated unconsolidated material that is not usable as daily cover or for soil structures and for which there is no technically and economically feasible treatment alternative may be disposed of in a landfill only with prior written approval from the department, unless otherwise specifically provided in the landfill’s individual license and approved plan of operation.

NR 722.09(4)(b) (b) Volume limitations.

NR 722.09(4)(b)1. 1. Except as provided in subd. 2. or 3., the volume of untreated contaminated unconsolidated material from a single site or facility that is proposed for landfill disposal may not exceed 250 cubic yards as measured in situ.

NR 722.09(4)(b)2. 2. Except as provided in subd. 3., volumes of untreated contaminated unconsolidated material that exceed 250 cubic yards may be disposed of in a licensed landfill with a department-approved composite liner, or a liner that is equivalent to a composite liner in terms of environmental protection as determined by the department.

NR 722.09(4)(b)3. 3. Volumes of untreated contaminated unconsolidated material that exceed 2000 cubic yards may be disposed of in a landfill only if prior written approval is obtained from the department after the department has reviewed a remedial action options report.

NR 722.09 Note Note: Material contaminated with polychlorinated biphenyls (PCBs) must be managed in accordance with the requirements of chs. NR 700 to 754. EPA has independent authority to regulate material contaminated with PCBs under TSCA. The department and EPA have entered into a memorandum of understanding that specifies how responsibility for government oversight at sites with PCB contamination will be determined. The memorandum of agreement can be found at: http://dnr.wi.gov/files/pdf/pubs/rr/rr786.pdf.

NR 722.09(5) (5) Continuing obligations. All legal and administrative mechanisms that establish property-specific responsibilities shall be selected consistent with the provisions of ch. 292, Stats., ch. NR 726, and this chapter, and are protective of public health, safety, and welfare and the environment.

NR 722.09 History History: Cr. Register, April, 1995, No. 472, eff. 5-1-95; CR 01-129: am. (2) (a), Register July 2002 No. 559, eff. 8-1-02; correction in (4) (intro.) made under s. 13.92 (4) (b) 7., Stats., Register February 2010 No. 650; CR 12-023: am. (2) (b) 1., 2., renum. (2) (d) to (2) (d) (intro.) and am., cr. (2) (d) 1., 2., am. (2) (e) 2., cr. (2m), am. (4) (a) 1, (b) 3., r. and recr. (5) Register October 2013 No. 694, eff. 11-1-13.

NR 722.11 NR 722.11 Risk assessments.

NR 722.11(1) (1) The responsible party may request, and the department may consider granting, approval to prepare and submit a risk assessment for the purpose of developing environmental standards only if the responsible parties demonstrate to the satisfaction of the department that:

NR 722.11(1)(a) (a) Compliance with the applicable environmental standards listed in s. NR 722.09 (2) will not be protective of public health, safety and welfare and the environment; or

NR 722.11(1)(b) (b) Attaining compliance with the applicable residual contaminant levels in ch. NR 720 is not practicable.

NR 722.11(2) (2) If the department authorizes the use of a risk assessment to develop environmental standards, the responsible parties shall utilize standard exposure assumptions approved by the department. The department may approve, modify or disapprove of the risk assessment prepared by the responsible parties and shall provide a written explanation of the department’s action to the responsible parties.

NR 722.11(3) (3) When the department enters into a contract pursuant to s. 292.31, Stats., the department shall determine whether or not a risk assessment should be prepared and by whom.

NR 722.11 History History: Cr. Register, April, 1995, No. 472, eff. 5-1-95; CR 12-023: am. (3) Register October 2013 No. 694, eff. 11-1-13.

NR 722.13 NR 722.13 Remedial action options report.

NR 722.13(1) (1) General. Based on the evaluation and selection of remedial action options required in ss. NR 722.07 and 722.09, responsible parties shall document the evaluation and selection in a remedial action options report in compliance with the requirements of this section. Responsible parties shall submit the remedial action options report to the department within 60 days after submitting the site investigation report, unless otherwise specified by the department.

NR 722.13(2) (2) Contents of report. The remedial action options report shall include the following:

NR 722.13(2)(a) (a) Cover letter.

NR 722.13(2)(a)1. 1. The department’s identification number for the site or facility.

NR 722.13(2)(a)2. 2. The purpose of the submittal and the desired department action or response.

NR 722.13(2)(a)3. 3. Month, day and year of the submittal.

NR 722.13(2)(b) (b) Executive summary. A brief narrative summarizing the contents of the report.

NR 722.13(2)(c) (c) Background information.

NR 722.13(2)(c)1. 1. Project title, name of the site or facility, its location, the mailing address and telephone number of the responsible parties, and the name, address and telephone number of the person who prepared the report.

NR 722.13(2)(c)2. 2. The regulatory status of the site or facility.

NR 722.13(2)(c)3. 3. A summary of the nature and extent of contamination at the site or facility, based on the data gathered during the site investigation.