Chapter NR 726

Register September 2007 No. 621

Chapter NR 726

CASE CLOSURE

NR 726.01   Purpose.

NR 726.02   Applicability.

NR 726.03   Definitions.

NR 726.05   General requirements for case closure.

NR 726.07   Department database requirements.

NR 726.09   Closure documentation requirements.

NR 726.11   Department database documentation requirements.

NR 726.13   Authority and approvals for case closure.

NR 726.15   Closure letters and continuing obligations.

Ch. NR 726 Note Note: Chapter NR 726 as it existed on April 30, 1995 was repealed and a new chapter NR 726 was created effective May 1, 1995. Chapter NR 726 was repealed and recreated, Register October 2013 No. 694, eff. 11-1-13.

NR 726.01 NR 726.01 Purpose. The purpose of this chapter is to specify the minimum requirements and conditions that shall be met before the department may determine that a case related to a discharge of hazardous substances or environmental pollution at a specific site or facility may be closed. This chapter is adopted pursuant to ss. 227.11 (2), 287.03, and 289.06, Stats., and ch. 292, Stats.

NR 726.01 History History: CR 12-023: cr. Register October 2013 No. 694, eff. 11-1-13.

NR 726.02 NR 726.02 Applicability.

NR 726.02(1) (1) This chapter applies to the closure of all cases where a response action, other than an immediate action, is taken at a site, facility or portion of a site or facility that is subject to regulation under ch. 292, Stats., regardless of whether there is direct involvement or oversight by the department, except that this chapter does not apply where the department determines under ch. NR 708 that no further action is necessary.

NR 726.02(2) (2) In addition to being applicable to sites or facilities specified in sub. (1), this chapter applies to the proposed closure of all of the following:

NR 726.02(2)(a) (a) Solid waste facilities where remedial action is required by the department pursuant to ch. NR 508.

NR 726.02(2)(b) (b) Sites or facilities where remedial action has been taken by a person who is seeking a liability exemption under s. 292.15, Stats.

NR 726.02(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 there are overlapping restrictions or requirements, the more restrictive requirements shall control. The department shall, after receipt of a request and the appropriate fee under ch. NR 749 from the responsible parties, provide a letter that indicates which regulatory program or programs the department considers to be applicable to a site or facility.

NR 726.02 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. One portion of a site or facility may be regulated under a different statutory authority than other portions of that site or facility.

NR 726.02 History History: CR 12-023: cr. Register October 2013 No. 694, eff. 11-1-13.

NR 726.03 NR 726.03 Definitions. The definitions in s. NR 700.03 apply to this chapter.

NR 726.03 Note Note: “Agency with administrative authority” or “agency” is used in several sections of ch. NR 726 to distinguish between the actions for which the department is responsible, in contrast to those actions where the Department of Agriculture, Trade and Consumer Protection (DATCP) has authority to review and approve closure requests, ensure that comment periods prior to closure approvals are followed, and to review information on the department database regarding compliance with conditions of closure.

NR 726.03 History History: CR 12-023: cr. Register October 2013 No. 694, eff. 11-1-13.

NR 726.05 NR 726.05 General requirements for case closure.

NR 726.05(1) (1) Compliance. The responsible party or other person requesting closure shall ensure compliance with all applicable federal, state, and local public health and environmental laws, including chs. NR 140, 141, and 700 to 754, as applicable, prior to requesting case closure.

NR 726.05(2) (2) Notification. Where written notification is required under ch. NR 725, the notification requirements shall be satisfied prior to submitting a request for case closure to the agency. When a site-specific condition of closure is required for a site or facility under s. NR 726.13 (1) (c), notification shall be in accordance with the requirements of s. NR 725.07.

NR 726.05(3) (3) Fees.

NR 726.05(3)(a) (a) For sites or facilities where the department has administrative authority to oversee the remediation of the site, the case closure fee and, if entry on the department database is required under s. NR 726.07, the fee or fees listed in ch. NR 749 for adding a site to the department database, shall be submitted to the department with each case closure request.

NR 726.05 Note Note: Under s. 292.12 (3) (b), Stats., the department has authority to charge a fee for placement on a department database.

NR 726.05(3)(b) (b) [For sites or facilities contaminated with petroleum products discharged from a petroleum storage tank for which the department of safety and professional services has administrative authority under s. 101.144, Stats., and] Sites or facilities for which department of agriculture, trade and consumer protection has administrative authority under s. 94.73, Stats., that are required by s. NR 726.07 to be entered onto the department database, the fee or fees listed in ch. NR 749 for adding a site to the department database shall be submitted to the department before a case closure request is submitted to the appropriate agency. For these sites or facilities, a case closure request may not be considered complete until proof of payment of the required fees has been entered onto the department’s bureau for remediation and redevelopment tracking system, which is available on the department’s internet site.

NR 726.05 Note Note: The department’s bureau for remediation and redevelopment tracking system can be found on the internet at http://dnr.wi.gov/topic/Brownfields/rrsm.html.

NR 726.05 Note Note: The language in brackets no longer applies as a result of the repeal of s. 101.144, Stats., by 2013 Wis. Act 20. This provision is subject to future rulemaking.

NR 726.05(4) (4) Response action goals. For sites or facilities considering closure under this chapter, the closure request shall document that the remaining level of contamination is not likely to:

NR 726.05(4)(a) (a) Pose a threat to public health, safety, or welfare or the environment.

NR 726.05(4)(b) (b) Cause a violation of ch. NR 140 groundwater quality enforcement standards at any applicable point of standards application, except where the department has granted an exemption under s. NR 140.28 for a specific hazardous substance or the criteria under s. NR 726.05 (6) are met.

NR 726.05(4)(c) (c) Cause a violation of surface water quality standards in chs. NR 102 to 106.

NR 726.05(4)(d) (d) Cause a violation of air quality standards contained in chs. NR 400 to 499.

NR 726.05(4)(e) (e) Cause a vapor action level in indoor air to be attained or exceeded.

NR 726.05 Note Note: Vapor action level is defined in s. NR 700.03 (66p) as ”the concentration of vapors from volatile compounds is at or above the 1-in-100,000 (1x10-5) excess lifetime cancer risk or is at or above a hazard index of 1 for non-carcinogens.”

NR 726.05(5) (5) Completeness. A case closure request shall be complete and meet the documentation requirements of ss. NR 726.09 and 726.11 if applicable.

NR 726.05 Note Note: Incomplete closure requests may be denied. The review fee may be applied to review of the site investigation for grossly incomplete closure requests, on a case-by-case basis. A closure review fee would be required when a complete closure request is then submitted.

NR 726.05(6) (6) Criteria for closure for sites or facilities with groundwater contamination. For sites or facilities with groundwater contamination that attains or exceeds ch. NR 140 enforcement standards at the time that case closure is requested, including sites or facilities contaminated with petroleum products discharged from a petroleum storage tank that are eligible for closure under ch. NR 726, the responsible party or other person requesting closure shall submit a case closure request to the agency for the site that documents that all of the following criteria are satisfied, if applicable:

NR 726.05(6)(a) (a) Adequate source control measures have been taken which include all of the following:

NR 726.05(6)(a)1. 1. Whether regulated or registered under ch. ATCP 93 or not, all existing underground storage tanks have been removed, permanently closed or upgraded to prevent new discharges of hazardous substances to the groundwater that would violate ch. NR 140. The same requirement applies to all new and replacement underground storage tanks not regulated under ch. ATCP 93.

NR 726.05 Note Note: The intent of this requirement is to ensure that source control measures are taken which prevent new or continuing releases, regardless of whether or not the tank is regulated under ch. ATCP 93.

NR 726.05(6)(a)2. 2. All new and replacement underground storage tanks regulated under ch. ATCP 93 have been constructed and are being monitored in accordance with ch. ATCP 93.

NR 726.05(6)(a)3. 3. All other existing tanks, pipes, barrels or other containers which may discharge a hazardous substance have been removed, contained or controlled to prevent, to the maximum extent practicable, new discharges of hazardous substances to the groundwater that would violate ch. NR 140.

NR 726.05(6)(a)4. 4. Where applicable, immediate and interim actions have been taken in accordance with ch. NR 708 to protect public health, safety, or welfare or the environment.

NR 726.05(6)(a)5. 5. Free product has been removed in accordance with the criteria in s. NR 708.13.

NR 726.05(6)(a)6. 6. The concentration and mass of a substance and its breakdown products in groundwater have been reduced due to naturally occurring physical, chemical and biological processes as necessary to adequately protect public health and the environment, and prevent groundwater contamination from migrating beyond the boundaries of the property or properties which are required to be entered onto the department database.

NR 726.05(6)(b) (b) Natural attenuation will bring the groundwater into compliance with ch. NR 140 groundwater quality standards within a reasonable period of time, considering the criteria in s. NR 722.07.

NR 726.05(6)(c) (c) The groundwater plume margin is stable or receding, and after case closure, groundwater contamination attaining or exceeding ch. NR 140 preventive action limits will not migrate beyond the boundaries of any property that falls into either one of the following categories:

NR 726.05(6)(c)1. 1. Properties for which a preventive action limit exemption has been granted.

NR 726.05(6)(c)2. 2. Properties that have been identified as having existing groundwater contamination that attains or exceeds ch. NR 140 enforcement standards and that will be included on the department database.

NR 726.05(6)(d) (d) There is no existing or anticipated threat to public health, safety, or welfare or the environment.

NR 726.05(6)(e) (e) Except for ch. NR 140, all applicable public health and environmental laws, including chs. NR 141 and 700 to 754, have been complied with.

NR 726.05(7) (7) General closure criteria. The following shall be required for case closure at all sites or facilities:

NR 726.05(7)(a) (a) All monitoring wells and boreholes installed during any response action taken for the site or facility shall be abandoned and documented as abandoned in accordance with s. NR 141.25, except for specific wells that the agency approves of retaining until sampling is no longer required.

NR 726.05(7)(b) (b) For sites or facilities where waste or contaminated media was generated during the response action and was stored or treated on–site, all the waste or contaminated media shall be handled and disposed of in accordance with applicable state and federal laws before a case closure request is submitted or approved.

NR 726.05(7)(c) (c) Groundwater samples used to determine compliance with ch. NR 140 shall be taken from monitoring wells constructed in accordance with ch. NR 141. The agency may approve an alternative monitoring program designed to show whether groundwater quality standards have been met.

NR 726.05(8) (8) Criteria for closure for sites or facilities with vapor contamination. A site or facility is not eligible for closure until the following criteria have been met:

NR 726.05(8)(a) (a) The vapor exposure pathway has been investigated in accordance with s. NR 716.11 (5) (g); and

NR 726.05(8)(b) (b) Where vapors were present above the vapor risk screening level:

NR 726.05(8)(b)1. 1. A remedial action has been conducted and reduced the mass and concentration of volatile compounds to the extent practicable; and

NR 726.05 Note Note: Vapor mitigation systems are not considered remedial actions, as they do not reduce the mass or concentrations of the contaminants. Vapor mitigation systems are used to interrupt the vapor migration pathway.

NR 726.05(8)(b)2. 2. The vapor exposure pathway has been interrupted or mitigated.

NR 726.05(9) (9) Other. Any other condition for case closure that is necessary to protect public health, safety, or welfare or the environment may be required.

NR 726.05 History History: CR 12-023: cr. Register October 2013 No. 694, eff. 11-1-13; corrections in (6) (a) 1., 2. made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 726.07 NR 726.07 Department database requirements.

NR 726.07(1) (1) All sites or facilities meeting any of the criteria in s. NR 725.05 (2) or 726.13 (1) (c), upon approval of the closure request under ch. NR 726, shall be entered onto the department database. All properties within or partially within the contaminated site or facility boundaries, including all public street and highway rights–of–way and railroad rights–of–way, shall be included.

NR 726.07(2) (2) The site or facility closure approval letter, and the information required under s. NR 726.11 shall be associated with the site or facility record in the department database.

NR 726.07 Note Note: A continuing obligation can be imposed within a general liability clarification letter for a local governmental unit directed to take an action under s. NR 708.17, in a remedial action plan approval under s. NR 722.15, or in a closure approval under ch. NR 726.

NR 726.07 History History: CR 12-023: cr. Register October 2013 No. 694, eff. 11-1-13.

NR 726.09 NR 726.09 Closure documentation requirements.

NR 726.09(1) (1) Case closure request form. A request for case closure shall be submitted on a form supplied by the agency and shall be accompanied by documentation that the criteria in s. NR 726.05 (1) to (8) are satisfied. One paper copy and one electronic copy of the complete closure request shall be submitted to the department, unless otherwise directed by the department. All information submitted shall be legible. Providing illegible information may result in a submittal being considered incomplete until corrected.

NR 726.09 Note Note: Copies of the WDNR case closure request form (form 4400-202) and the associated impacted property notification information form (4400-246) for sites or facilities over which the department has administrative authority may be accessed at:
http://dnr.wi.gov/files/PDF/forms/4400/4400-202.pdf,
or may be obtained from any regional office of the department, or by writing to the Department of Natural Resources, Bureau for Remediation and Redevelopment, P.O. Box 7921, Madison, Wisconsin 53707.

NR 726.09 Note Note: Electronic copies should be submitted in the Adobe portable document format (PDF) on optical disk media. Guidance on electronic submittals can be accessed at http://dnr.wi.gov/files/PDF/pubs/rr/RR690.pdf.

NR 726.09(2) (2) General requirements. In order to demonstrate that applicable federal, state and local public health and environmental laws have been complied with, and to provide information on the location and nature of any residual contamination at the site or facility, the person who is requesting case closure shall submit all of the following information, that is applicable, as attachments to the case closure request, in the format that is specified in this subsection, and in the order that is specified in the form.

NR 726.09(2)(a) (a) Documentation showing that site investigation requirements in ch. NR 716 have been met or, where applicable, documentation which meets the requirements in ch. NR 508, the groundwater assessment requirements in s. NR 140.24 (1) (b), or both.

NR 726.09(2)(b) (b) A description of the interim and remedial actions taken at the site or facility. For sites or facilities where residual soil contamination exceeds ch. NR 720 soil standards at the time that case closure is requested, include a demonstration that the remedial action taken, and any interim action that was taken that constituted the final response action for soil contamination, satisfies the requirements of chs. NR 720 and 722, where applicable.

NR 726.09(2)(c) (c) Maps and cross sections shall be to scale, and use a graphic scale. The north arrow shall be pointing to the top of the map.

NR 726.09(2)(d) (d) For sites or facilities where soil excavation or active soil remediation occurred:

NR 726.09(2)(d)1. 1. A table of soil analytical results with collection dates identified. Soil analytical data tables shall clearly indicate depth of sample, soil type and whether the sample represents pre-remedial or post-remedial conditions. At sites or facilities where soil excavation occurred, the soil analytical data tables shall indicate whether the soil data point represents soil that was removed or soil that remains in place.