NR 722.02(2)
(2) Except as provided in
sub. (3m), 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 s.
292.11 or
292.31, Stats., regardless of whether there is direct involvement or oversight by the department.
NR 722.02(2m)
(2m) Except as provided in
sub. (3m), 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 s.
292.11 or
292.31, Stats., this chapter applies to the evaluation of proposed remedial action options for solid waste facilities where remedial action is required by the department pursuant to
s. NR 508.04 (4), except as provided in
sub. (3m).
NR 722.02 Note
Note: Persons who wish to conduct response actions that will meet the requirements of CERCLA and the NCP may request that the department enter into a contract with them pursuant to s.
292.31 (1) (b), Stats. However, a CERCLA-quality response action may require compliance with additional requirements beyond those contained in chs.
NR 700 to
736 in order to satisfy CERCLA and the NCP.
NR 722.02(3m)
(3m) This chapter is not applicable to sites contaminated with petroleum products discharged from petroleum storage tanks that satisfy all of the risk screening criteria in
s. NR 746.06 (2) and are eligible for closure under
s. NR 746.07 or
746.08.
NR 722.02 Note
Note: If sites and facilities that are contaminated with petroleum products discharged from petroleum storage tanks do not satisfy the risk screening criteria in s.
NR 746.06 (2) or the closure requirements of s.
NR 746.07 or
746.08, the site or facility would be still be subject to this chapter.
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 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.
NR 722.02 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 other statutes, including solid waste statutes, 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. When necessary, the department will, to the best of its ability, facilitate coordination between the regulatory programs involved.
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.
NR 722.03
NR 722.03
Definitions. In this chapter:
NR 722.03(1)
(1) "Sensitive receptor" means a receptor that is affected by slight differences or changes in environmental conditions.
NR 722.03(2)
(2) "Unconsolidated material" means soil, sediment or other granular material, such as fill, not including debris.
NR 722.03 Note
Note: Section
NR 700.03 (58) defines "soil" as unsaturated organic material, derived from vegetation and unsaturated, loose, incoherent rock material, of any origin, that rests on bedrock other than foundry sand, debris and any industrial waste. Section
NR 700.03 (54) defines "sediment" as particles in surface waters or wetlands that are derived from the erosion of rock, minerals, soils and biological materials, as well as chemical precipitation from the water column. Sediment particles are transported by, suspended in or deposited by water. Section
NR 700.03 (10) defines "debris" as material resulting from the construction, demolition or razing of buildings, roads and other structures and materials that have been discarded at a site or facility.
NR 722.03 History
History: Cr.
Register, April, 1995, No. 472, eff. 5-1-95.
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(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 is completed:
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 utilized 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.
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 Note
Note: The department suggests that responsible parties and their consultants should refer to the following U.S. EPA guidance document as part of their evaluation of remedial action options for sites with petroleum contamination: ``How to Evaluate Alternative Cleanup Technologies for Underground Storage Tank Sites,'' May 1995. (U.S. EPA 510-B-95-007) which may be obtained from: Superintendent of Documents, U.S. Government Printing Office, P.O. Box 371945, Pittsburgh, PA 15250-7954, Stock Number 055-000-00499-4.
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. Responsible parties shall document their evaluation of a remedial option or combination of options which would utilize recycling or treatment technologies that destroy or detoxify contaminants, rather than transfer the contaminants to another media.
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. The department would consider such an evaluation as simply an attempt to give the false impression that a wide range of options were considered. Emphasis must be placed on remedial action options suitable for a particular site or facility.
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 meets one or both of the following requirements:
NR 722.07(3)(b)1.
1. Landfill disposal of less than 250 cubic yards of untreated contaminated unconsolidated material, as measured in situ, is proposed.
NR 722.07(3)(b)2.
2. The proposed remedial action option results in the reuse, recycling, destruction, detoxification, treatment or any combination thereof of the hazardous substances present at the site and this proposed option:
NR 722.07(3)(b)2.a.
a. 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)2.b.
b. Can be implemented in a manner that will not pose a significant risk of harm to human health, safety and welfare or the environment; and
NR 722.07(3)(b)2.c.
c. 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) and
(3).
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. A remedial action that results in landfill disposal of volumes of untreated contaminated soil or other unconsolidated material of 250 cubic yards or less can be reasonably expected to meet the technical feasibility and economic feasibility criteria in s.
NR 722.07 (4) and further detailed evaluation of alternatives would not be warranted. Remedial actions meeting the requirements of s.
NR 722.07 (3) (b) 2. can be reasonably expected to be appropriate and further detailed evaluation of alternatives would not be necessary as such remedial actions could be considered "presumptive remedies" as described in U.S. EPA OSWER Directive 9355.0-47FS.
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 appropriate remedial action options 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 and welfare and 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.
NR 722.07(4)(a)3.b.
b. The availability of materials, equipment, technologies and services needed to conduct the remedial action option.
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(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)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.
NR 722.07(4)(a)4.g.
g. Effectiveness, reliability and enforceability of institutional controls.
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: A longer restoration time frame may be appropriate to achieve the environmental laws and standards referenced in s.
NR 722.07 (2) (a) and
(b), if on-site treatment or recycling is selected or if engineering controls are selected for an industrial property to allow urban redevelopment. The purpose of s.
NR 722.07 (5) (b) 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 shall be evaluated, using the following criteria:
NR 722.07(4)(b)1.
1. The following types of costs associated with the remedial action option:
NR 722.07(4)(b)1.d.
d. 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 or federal LUST trust funds are being expended; and
NR 722.07(4)(b)2.
2. The economic feasibility of a remedial action option shall be determined by comparing the costs listed in
subd. 1. to what is expected to be technically achieved by that option, taking into account long-term effectiveness, short-term effectiveness, implementability and the time until restoration is achieved for each option.
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 solid or hazardous waste landfill covers, liners, gas collection systems, armoring of sediments, erosion controls and groundwater slurry walls. Restricting access to a site or facility, such as constructing a fence, is considered an institutional control, not an engineering control.
NR 722.07(5)(b)
(b) Institutional controls. Responsible parties shall consider the appropriateness of utilizing institutional controls, including land-use and access restrictions, to supplement engineering controls and treatment remedial actions, as necessary 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, 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.
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 generic residual contaminant levels and for site-specific residual contaminant levels or performance standards. An on-site remedial action or combination of on- site actions that does not meet applicable residual contaminant levels in Tables 1 and 2 in ch.
NR 720 may be selected, alone or in combination with off-site remedial actions, if site-specific residual contaminant levels or a performance standard are developed. 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, preventive action limits shall be achieved to the extent technically and economically feasible, pursuant to
ss. NR 140.24 and
140.26.
