Chapter NR 708

Register February 2010 No. 650

Chapter NR 708

IMMEDIATE AND INTERIM ACTIONS

NR 708.01   Purpose.

NR 708.02   Applicability.

NR 708.03   Definitions.

NR 708.05   Immediate actions.

NR 708.07   Additional response actions.

NR 708.09   No further response action.

NR 708.11   Interim actions.

NR 708.13   Free product removal.

NR 708.15   Interim action reports.

NR 708.17   Local Governmental Unit or Economic Development Corporation Exemptions.

Ch. NR 708 Note Note: Corrections made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1997, No. 494.

NR 708.01 NR 708.01 Purpose. This chapter establishes criteria for emergency and non–emergency immediate actions and interim actions to be taken by responsible parties, or interim actions taken by local governmental units or economic development corporations when directed by the department, to protect public health, safety, or welfare or the environment; and establishes the documentation requirements associated with these response actions. This chapter is adopted pursuant to ss. 227.11 (2), 287.03 (1) (a), 289.06, Stats., and ch. 292, Stats.

NR 708.01 Note Note: The following portions of 40 CFR part 280 have been included in the text of this chapter: portions of s. 280.34 (a) (3); s. 280.61 (b) and (c); s. 280.62 (a) (1) to (3) and (6); s. 280.62 (b); portions of s. 280.63 (a) and (b); s. 280.64 (a) to (d); s. 280.65 (a); and portions of s. 280.66 (a), (b) and (d). Additional portions of s. 280.34 (a) (3) are included in chs. NR 706, 716, 722 and 724. Additional portions of s. 280.63 (a) and (b) are included in chs. NR 706 and 716. Additional portions of 280.66 (a) to (d) are included in ch. NR 724.

NR 708.01 History History: Cr. Register, April, 1994, No. 460, eff. 5-1-94; am., Register, February, 1996, No. 482, eff. 3-1-96; CR 12-023: am. Register October 2013 No. 694, eff. 11-1-13.

NR 708.02 NR 708.02 Applicability.

NR 708.02(1) (1) This chapter applies to emergency and non–emergency immediate actions and interim actions taken by the department under the authority of ch. 292, Stats. In this chapter, where the term “responsible parties” appears, it should be read to include the department in situations where a department–funded response action is being taken.

NR 708.02 Note Note: The department has the authority under s. 292.11 (10), Stats., to waive the requirements of s. 292.11, Stats., to prevent an emergency condition threatening public health, safety, or welfare.

NR 708.02(2) (2) This chapter applies to immediate actions and interim actions taken by responsible parties at sites, facilities or portions of a site or facility that are subject to regulation under s. 292.11 or 292.31, Stats., regardless of whether there is direct involvement or oversight by the department.

NR 708.02 Note Note: Persons who wish to conduct response actions that will be consistent with the requirements of CERCLA and the NCP may request that the department enter into a contract with them pursuant to s. 292.31, Stats., or a negotiated agreement under s. 292.11 (9) (e) 4., 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 708.02(2m) (2m) This chapter applies to response actions taken by persons seeking the liability exemption under s. 292.15, Stats.

NR 708.02(2r) (2r) Section NR 708.17 applies to response actions taken by a local governmental unit or economic development corporation when directed by the department under s. 292.11 (9) (e) 4., Stats.

NR 708.02(3) (3) 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 are applicable, 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 to the site or facility.

NR 708.02 Note Note: Sites, facilities or portions of a site or facility that are subject to regulation under s. 292.11 or 292.31, Stats., may also be subject to regulation under 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. One portion of a site or facility may be regulated under a different statutory authority than other portions of that site or facility.

NR 708.02 History History: Cr. Register, April, 1994, No. 460, eff. 5-1-94; cr. (2m), Register, February, 1996, No. 482, eff. 3-1-96; CR 12-023: am. (1), cr. (2r) Register October 2013 No. 694, eff. 11-1-13.

NR 708.03 NR 708.03 Definitions. In this chapter:

NR 708.03(1) (1) “Economic development corporation” has the meaning described in s. 501 (c) of the Internal Revenue Code, as defined in s. 71.22 (4), Stats., that is exempt from federal taxation under section 501 (a) of the Internal Revenue Code, or an entity wholly owned and operated by such a corporation, with respect to property acquired to further the economic development purposes that exempt the corporation from federal taxation.

NR 708.03(2) (2) “Local governmental unit” has the meaning specified in s. 292.11 (9) (e) 1., Stats.

NR 708.03 Note Note: Section 292.11 (9) (e) 1., Stats., defines “local governmental unit” to mean “a municipality, a redevelopment authority created under s. 66.1333, a public body designated by a municipality under s. 66.1337 (4), a community development authority or a housing authority.”

NR 708.03 History History: Cr. Register, April, 1994, No. 460, eff. 5-1-94; CR 12-023: am. (intro.), cr. (1), (2) Register October 2013 No. 694, eff. 11-1-13.

NR 708.05 NR 708.05 Immediate actions.

NR 708.05(1) (1) General. Unless otherwise directed by the department, responsible parties shall immediately take action to halt a hazardous substance discharge or environmental pollution and to minimize the harmful effects of the discharge or environmental pollution to the air, lands or waters of the state.

NR 708.05 Note Note: Section 292.11 (2) (a), Stats., and ch. NR 706 require that the department be notified immediately of hazardous substance discharges.

NR 708.05(2) (2) Emergencies. For hazardous substance discharges that pose an imminent threat to public health, safety or welfare or the environment, responsible parties shall conduct all necessary emergency immediate actions. Once the emergency situation is responded to, responsible parties shall conduct any further response actions needed to restore the environment to the extent practicable, unless the department determines that no further response is necessary in accordance with s. NR 708.09.

NR 708.05 Note Note: Responsible parties are also required by s. 323.71 (1), Stats., to immediately conduct emergency action to protect public health and safety and to prevent damage to property in cooperation with local police and fire departments, county sheriffs, and county offices of emergency government.

NR 708.05(3) (3) Non-emergencies.

NR 708.05(3)(a) (a) Responsible parties shall take all necessary, non-emergency immediate actions to halt the discharge of a hazardous substance and to contain, treat or remove discharged hazardous substances, environmental media or both, in order to minimize the harmful effects of the discharge to the air, lands and waters of the state and to restore the environment to the extent practicable.

NR 708.05(3)(b) (b) A response to a hazardous substance discharge and any related contaminated media shall be considered by the department as a non-emergency immediate action when all of the following criteria are met:

NR 708.05(3)(b)1. 1. The discharge does not pose an imminent threat to public health, safety, or welfare or the environment.

NR 708.05(3)(b)2. 2. The response does not result in the excavation and disposal, treatment, or storage of more than 100 cubic yards of contaminated soil, debris, sediment, or a combination of these media from a single site or facility, unless an alternative volume is approved by the department.

NR 708.05(3)(b)3. 3. The discharge is responded to immediately after the hazardous substance discharge occurs or is responded to immediately after discovery.

NR 708.05 Note Note: Responsible parties are required to notify the department immediately of a hazardous substance discharge, in accordance with the requirements of ch. NR 706.

NR 708.05(3)(b)4. 4. At the completion of the response action, no further action is required by the department under s. NR 708.09.

NR 708.05 Note Note: If further action is required after a non–emergency response action is taken, that action meets the definition of “interim action” in s. NR 700.03 (29). The principal distinction between a non–emergency immediate action and an interim action is that a site investigation will generally be required in conjunction with an interim action but not with a non–emergency immediate action. In addition, interim actions will be closed out using the criteria in ch. NR 726, not the “no further action” criteria in s. NR 708.09.

NR 708.05(3)(c) (c) Responsible parties shall conduct sampling at the completion of an immediate action, in accordance with the requirements of ss. NR 712.05 and 716.13, when any of the following conditions are met:

NR 708.05(3)(c)1. 1. The hazardous substance discharge or environmental pollution is in contact with groundwater.

NR 708.05(3)(c)2. 2. The amount, identity or duration of the hazardous substance discharge or environmental pollution is unknown.

NR 708.05(3)(c)3. 3. Where other site or facility conditions indicate that sampling is necessary to confirm the adequacy of the immediate action.

NR 708.05(4) (4) Specific actions. Immediate actions may include any of the following:

NR 708.05(4)(a) (a) Limiting public access to the site or facility.

NR 708.05(4)(b) (b) Identifying, monitoring and mitigating fire, explosion and vapor hazards, which may include free product removal. Free product removal shall be conducted in accordance with the requirements of s. NR 708.13 and documented in accordance with s. NR 708.15.

NR 708.05(4)(c) (c) Visually inspecting the site or facility and installing physical containment barriers such as berms, booms, dikes or trenches.

NR 708.05(4)(d) (d) Preventing the flushing of hazardous substances to sewer systems, state waters or environmental media or habitats.

NR 708.05(4)(e) (e) Plugging or overpacking leaking containers which contain or are suspected to contain hazardous substances.

NR 708.05(4)(f) (f) Providing alternate water supplies to persons whose water supply has been or is likely to be affected by the migration of contamination.