Chapter 160

160.32   Common law and liability.

160.33   Public participation.

160.34   No mandatory well repair as a condition for testing.

160.36   Cooperation with American Indian tribes and bands.

160.50   Groundwater coordinating council.

Ch. 160 Cross-reference Cross-reference: See also ch. NR 140, Wis. adm. code.

160.001 160.001 Legislative intent. The legislature recognizes that prior to May 11, 1984, most groundwater regulatory programs were not based on numerical standards. The legislature intends, by the creation of this chapter, to minimize the concentration of polluting substances in groundwater through the use of numerical standards in all groundwater regulatory programs. The numerical standards, upon adoption, will become criteria for the protection of public health and welfare, to be achieved in groundwater regulatory programs concerning the substances for which standards are adopted. To this end, the legislature intends that:

160.001(1) (1) This chapter will establish an administrative process which will produce numerical standards, comprised of enforcement standards and preventive action limits, for substances in groundwater. As more specifically provided in this chapter, administrative procedures also provide for minimizing the concentration of substances in groundwater.

160.001(2) (2) The enforcement standards and preventive action limits will be adopted under the authority of this chapter, independent of any regulatory programs concerning the substances for which enforcement standards and preventive action limits are adopted.

160.001(3) (3) This chapter supplements the regulatory authority elsewhere in the statutes, whether the regulatory programs exist under current statutes on May 11, 1984, or are created after that date. Regulatory agencies will continue to exercise the powers and duties in those regulatory programs, consistent with the enforcement standards and preventive action limits for substances in groundwater under this chapter. This chapter provides guidelines and procedures for the exercise of regulatory authority which is established elsewhere in the statutes, and does not create independent regulatory authority.

160.001(4) (4) In order to comply with this chapter, a regulatory agency is not required to adopt a particular type of regulation; regulatory agencies are free to establish any type of regulation which assures that regulated facilities and activities will not cause the concentration of a substance in groundwater affected by the facilities or activities to exceed the enforcement standards and preventive action limits under this chapter at a point of standards application. A regulatory agency may adopt regulations which establish specific design and management criteria for regulated facilities and activities, if the regulations will ensure that the regulated facilities and activities will not cause the concentration of a substance in groundwater affected by the facilities or activities to exceed the enforcement standards and preventive action limits under this chapter at a point of standards application.

160.001(5) (5) The enforcement standards and preventive action limits adopted under this chapter provide adequate safeguards for public health and welfare. However, this chapter does not prevent regulatory agencies from adopting regulations under regulatory authority elsewhere in the statutes based on the best currently available technology for regulated activities and practices which ensure a greater degree of groundwater protection.

160.001(6) (6) Where necessary to comply with federal statutes or regulations, the department of natural resources may adopt rules in regulatory programs administered by it which are more stringent than the enforcement standards and preventive action limits adopted under this chapter.

160.001(7) (7) A regulatory agency may take any actions within the context of regulatory programs established in statutes outside of this chapter, if those actions are necessary to protect public health and welfare or prevent a significant damaging effect on groundwater or surface water quality for present or future consumptive or nonconsumptive uses, whether or not an enforcement standard and preventive action limit for a substance has been adopted under this chapter. Nothing in this chapter requires the department of health services or the department of natural resources to establish an enforcement standard for a substance if a federal number or state drinking water standard has not been adopted for the substance and if there is not sufficient scientific information to establish the standard.

160.001(8) (8) Preventive action limits shall serve as a means to inform regulatory agencies of potential groundwater contamination problems, to establish the level of groundwater contamination at which regulatory agencies are required to commence efforts to control the contamination and to provide a basis for design and management practice criteria in administrative rules. A preventive action limit is not intended to be an absolute standard at which remedial action is always required.

160.001 History History: 1983 a. 410; 1995 a. 27 s. 9126 (19); 2007 a. 20 s. 9121 (6) (a).

160.001 Cross-reference Cross-reference: See also ch. NR 140, Wis. adm. code.

160.001 Annotation The promulgation of rules that prescribe the use of risk-based methodologies to respond to petroleum contamination in soil and groundwater would violate ch. 160. OAG 3-99.

160.01 160.01 Definitions. As used in this chapter, unless the context requires otherwise:

160.01(1) (1) “Department,” when used without qualification, means the department of natural resources.

160.01(2) (2) “Enforcement standard” means a numerical value expressing the concentration of a substance in groundwater which is adopted under ss. 160.07 and 160.09.

160.01(3) (3) “Federal number” means a numerical expression of the concentration of a substance in water, established as:

160.01(3)(a) (a) A drinking water standard or maximum contaminant level, by the federal environmental protection agency;

160.01(3)(b) (b) A suggested no-adverse-response level, by the federal environmental protection agency; or

160.01(3)(c) (c) For oncogenic substances, a concentration based on a risk level determination by the federal environmental protection agency or a concentration based on a probability of risk model determined by the national academy of sciences.

160.01(4) (4) “Groundwater” means any of the waters of the state, as defined in s. 281.01 (18), occurring in a saturated subsurface geological formation of rock or soil.

160.01(5) (5) “Point of standards application” means the specific location, depth or distance from a facility, activity or practice at which the concentration of a substance in groundwater is measured for purposes of determining whether a preventive action limit or an enforcement standard has been attained or exceeded.

160.01(6) (6) “Preventive action limit” means a numerical value expressing the concentration of a substance in groundwater which is adopted under s. 160.15.

160.01(6m) (6m) “Property boundary” means the boundary of the total contiguous parcel of land owned by a common owner, regardless of whether public or private roads run through the parcel.

160.01(7) (7) “Regulatory agency” means the department of agriculture, trade and consumer protection, the department of safety and professional services, the department of transportation, the department of natural resources and other state agencies which regulate activities, facilities or practices which are related to substances which have been detected in or have a reasonable probability of entering the groundwater resources of the state.

160.01(8) (8) “Substance” means any solid, liquid, semisolid, dissolved solid or gaseous material, naturally occurring or man-made chemical, parameter for measurement of water quality or biological organism which, in its original form, or as a metabolite or a degradation or waste product, may decrease the quality of groundwater.

160.01 History History: 1983 a. 410; 1995 a. 27 ss. 4441, 9116 (5); 1995 a. 227; 2011 a. 32; 2015 a. 196.

160.03 160.03 Duties of department. The department shall exercise both the responsibilities assigned specifically to it under this chapter as well as those assigned generally to the department as a regulatory agency.

160.03 History History: 1983 a. 410.

160.03 Cross-reference Cross-reference: See also ch. NR 140, Wis. adm. code.

160.05 160.05 Identification of groundwater contamination; categories.

160.05(1) (1) Identification. Each regulatory agency shall submit to the department a list of those substances which are related to facilities, activities and practices within its authority to regulate and which are detected in or have a reasonable probability of entering the groundwater resources of the state.

160.05(2) (2) Petition.

160.05(2)(a) (a) Any person may petition a regulatory agency to add a substance to or delete a substance from the list submitted to the department under sub. (1). The petition shall clearly and concisely state all of the following:

160.05(2)(a)1. 1. The name of the substance which is proposed to be added or removed from the list.

160.05(2)(a)2. 2. The regulatory authority of the regulatory agency over the facility, activity or practice which is the source of the substance.

160.05(2)(a)3. 3. The reasons for believing the substance exists in or has a reasonable probability of entering the groundwater or the reasons for believing the substance should be removed from the list.

160.05(2)(b) (b) Within a reasonable period of time after the receipt of a petition a regulatory agency shall either deny the petition in writing or submit the name of the substance to the department under sub. (1). If the regulatory agency denies the petition, it shall give notice of the denial promptly to the person who filed the petition, including a statement of its reasons for the denial.

160.05(3) (3) Establish categories. Within 60 days following receipt of a name of a substance under sub. (1), the department shall place the substance into one of the following categories:

160.05(3)(a) (a) Category 1, if the substance is detected in groundwater in concentrations in excess of a federal number for that substance.

160.05(3)(b) (b) Category 2, if the substance is detected in groundwater and is of public health or welfare concern but:

160.05(3)(b)1. 1. Is not detected in concentrations in excess of a federal number; or

160.05(3)(b)2. 2. For which there is no federal number.

160.05(3)(c) (c) Category 3, if the substance has a reasonable probability of being detected in groundwater and is of public health or welfare concern.

160.05(4) (4) Ranking within categories. The department shall rank each substance within its category. The department shall give highest rankings to those substances which pose the greatest risks to the health or welfare of persons in the state, taking into consideration, among other things, the following characteristics:

160.05(4)(a) (a) Carcinogenicity.

160.05(4)(b) (b) Teratogenicity.

160.05(4)(c) (c) Mutagenicity.

160.05(4)(d) (d) Interactive effects.

160.05(5) (5) Revision of substance lists. The department shall revise, as necessary, the ranking of substances within categories to include additional substances as they are reported, to reflect a change in the status of a substance which requires that it be placed in a different category or to remove from the list substances which are not shown to involve public health or welfare concerns or which do not have a reasonable probability of entering the groundwater.

160.05(6) (6) Public health concerns.

160.05(6)(a) (a) The department shall designate which of the substances in each category are of public health concern and which are of public welfare concern.

160.05(6)(b) (b) In determining whether a substance is of public health concern, the department shall take into account the degree to which the substance may:

160.05(6)(b)1. 1. Cause or contribute to an increase in mortality;

160.05(6)(b)2. 2. Cause or contribute to an increase in illness or incapacity, whether chronic or acute;

160.05(6)(b)3. 3. Pose a substantial present or potential hazard to human health because of its physical, chemical or infectious characteristics; or

160.05(6)(b)4. 4. Cause or contribute to other adverse human health effects or changes of a chronic or subchronic nature even if not associated with illness or incapacity.

160.05(6)(c) (c) In determining whether a substance is of public health concern, the department may consider other effects not specified under par. (b) if those effects are reasonably related to public health.

160.05(6)(d) (d) In determining whether a substance is of public welfare concern, the department shall take into account whether the substance may:

160.05(6)(d)1. 1. Influence the aesthetic suitability of water for human use;

160.05(6)(d)2. 2. Influence the suitability of water for uses other than human drinking water; or

160.05(6)(d)3. 3. Have a substantial adverse effect on plant life or animal life.

160.05(6)(e) (e) In determining whether a substance is of public welfare concern, the department may consider additional characteristics not specified under par. (d) if those characteristics are reasonably related to public welfare.

160.05 History History: 1983 a. 410.

160.07 160.07 Establishment of enforcement standards; substances of public health concern.

160.07(1) (1) The department of health services and the department shall enter into a memorandum of understanding setting forth the procedures and responsibilities of each agency in establishing enforcement standards under this section. The memorandum shall include those standards to be used by the department in making the designation required under s. 160.05 (6).

160.07(2) (2) Within 10 days after placing the name of a new substance within a category or changing the category of a substance under s. 160.05, the department shall submit the current list of categories and rankings of substances to the department of health services.

160.07(3) (3) The department of health services shall recommend to the department an enforcement standard for each substance submitted to it under sub. (2) which is designated as of public health concern, in the order of rankings within each category under s. 160.05 (4).

160.07(4) (4) The department of health services shall develop recommendations for enforcement standards for substances of public health concern as follows:

160.07(4)(a) (a) If a single federal number exists for a substance, the federal number shall be the enforcement standard.

160.07(4)(b) (b) If more than one federal number exists for a substance, the most recently established federal number representing the most current data shall be the enforcement standard.

160.07(4)(c) (c) If no federal number exists for a substance, but there is a state drinking water standard, the state drinking water standard shall be the enforcement standard.

160.07(4)(d) (d) If neither a federal number nor a state drinking water standard exists for a substance, the department of health services shall develop a recommended enforcement standard using the methodology under s. 160.13.

160.07(4)(e) (e) Notwithstanding pars. (a) and (b), the department of health services may recommend an enforcement standard different than the federal number if there is significant technical information which is scientifically valid and which was not considered when the federal number was established, upon which the department of health services concludes, utilizing the methodology under s. 160.13 and with a reasonable scientific certainty, that such a standard is justified. The department of health services may recommend a change in an enforcement standard previously adopted by utilization of a federal number. In evaluating the evidence for establishing an enforcement standard different than a federal number, the department of health services shall consider the extent to which the evidence was developed in accordance with scientifically valid analytical protocols and may consider whether the evidence was subjected to peer review, resulted from more than one study and is consistent with other credible medical or toxicological evidence.

160.07(5) (5) Within 9 months after transmitting the name of a substance to the department of health services under sub. (2), the department of natural resources shall propose rules establishing the recommendation of the department of health services as the enforcement standard for that substance and publish the notice required under s. 227.16 (2) (e), 227.17 or 227.24 (3).

160.07(6) (6) If a federal number is established or changed for a substance after an enforcement standard is recommended by the department of health services and if any person or regulatory agency submits a request, the department of natural resources shall determine whether the enforcement standard needs revision based on recommendations under sub. (4).

160.07 History History: 1983 a. 410; 1985 a. 182 s. 57; 1995 a. 27 s. 9126 (19); 2007 a. 20 s. 9121 (6) (a).

160.09 160.09 Establishment of enforcement standards; substances of public welfare concern.

160.09(1) (1) Notwithstanding the authority of the department under ss. 280.11, 281.15 and 281.17 (8) to establish standards for pure drinking water, the department shall establish enforcement standards for substances of public welfare concern as follows:

160.09(1)(a) (a) If a single federal number exists for a substance, the federal number shall be the enforcement standard.

160.09(1)(b) (b) If more than one federal number exists for a substance, the most recently established federal number representing the most current data shall be the enforcement standard.

160.09(1)(c) (c) If no federal number exists for a substance, but there is a state drinking water standard, the state drinking water standard shall be the enforcement standard.

160.09(1)(d) (d) If neither a federal number nor a state drinking water standard exists for a substance, the department shall establish an enforcement standard using all relevant and scientifically valid information available in technical literature concerning the substance and, if necessary, by comparison to similar compounds or classes of compounds.