Register February 2012 No. 674
Chapter NR 726
CASE CLOSURE
NR 726.05 Requests for case closure.
NR 726.07 Submittals for case closure at simple sites.
NR 726.09 Reopening closed cases.
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Note: Chapter NR 726 as it existed on April 30, 1995 was repealed and a new chapter NR 726 was created effective May 1, 1995.
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 specific site or facility may be closed. This chapter is adopted pursuant to ss.
227.11 (2),
287.03,
289.06,
292.11,
292.15 and
292.31, Stats.
NR 726.01 History
History: Cr.
Register, April, 1995, No. 472, eff. 5-1-95; am.
Register, February, 1996, No. 482, eff. 3-1-96.
NR 726.02(1)(1) This chapter applies to the closure of all cases where response action, other than immediate action, is taken at a site, facility or portion of a site or facility that is subject to regulation under s.
292.11 or
292.31, 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, or where the site is classified as a simple site and the responsible party chooses to follow the simple site process outlined in
s. NR 700.11 (1).
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)(b)
(b) Sites where remedial action has been taken by a person who is seeking the 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 from 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 s.
292.11 or
292.31, 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.
Register, April, 1995, No. 472, eff. 5-1-95; am. (2), cr. (2) (b),
Register, February, 1996, No. 482, eff. 3-1-96; am. (1),
Register, February, 1997, No. 494, eff. 3-1-97; correction in (2) (a) made under s. 13.93 (2m) (b) 7., Stats.,
Register, January, 2001, No. 541;
CR 01-129: am. (1),
Register July 2002 No. 559, eff. 8-1-02.
NR 726.03
NR 726.03
Definitions. In this chapter:
NR 726.03(1)
(1) "Case closure" means a determination by the department, based on information available at the time of the department's review, that no further action is necessary.
NR 726.03(1m)
(1m) "GIS registry" means the department's geographic information system registry of closed remediation sites.
NR 726.03(2)(a)
(a) Persons who are liable for hazardous substance discharges or environmental pollution under s.
292.11 or
292.31, Stats.; and
NR 726.03(2)(b)
(b) Owners and operators of solid waste facilities that are subject to regulation under
ch. NR 508.
NR 726.03(3)
(3) "Right-of-way" means the strip of land over which railroad tracks run, or within which a public street or highway has been constructed, regardless of whether the strip of land is owned by the railroad or the entity that maintains the public street or highway. For the purposes of this chapter, a "right-of-way" includes corridors created by dedication, by the granting of an easement and by the acquisition of fee title.
NR 726.03 History
History: Cr.
Register, April, 1995, No. 472, eff. 5-1-95;
CR 01-129: cr. (1m) and (3),
Register July 2002 No. 559, eff. 8-1-02.
NR 726.05
NR 726.05
Requests for case closure. NR 726.05(1)
(1) The agency with administrative authority to oversee the remediation of the site or facility may grant case closure under this section, conditioned upon compliance with the applicable requirements of
sub. (8), if the fees required by
ch. NR 749 have been paid and it has been documented, in the case close out report that is submitted to the agency in compliance with the requirements of
sub. (3), that all applicable public health and environmental laws, including
chs. NR 700 to
724 and
749, have been complied with, or where
ch. NR 140 enforcement standards are the only standards that are exceeded, that the criteria in
sub. (2) (b) are satisfied.
NR 726.05(2)(a)1.1. A request for case closure shall be submitted in writing on a case summary and close out form supplied by the agency with administrative authority over the site and shall be accompanied by a case close out report documenting that applicable public health and environmental laws, including
chs. NR 700 to
746, have been complied with, or, where
ch. NR 140 enforcement standards are the only environmental standards exceeded, that the criteria in
par. (b) are satisfied.
NR 726.05 Note
Note: Copies of the WDNR case summary and close out form for sites over which the department has administrative authority 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. The WDNR case summary and close out form (form 4400-202) may also be obtained from the publications section of the department's remediation and redevelopment internet site at
http://www.dnr.state.wi.us/org/aw/rr/.
NR 726.05(2)(a)2.
2. For sites with groundwater contamination that exceeds
ch. NR 140 enforcement standards at the time that case closure is requested, all properties within or partially within the contaminated site boundaries, including all public street and highway rights-of-way and railroad rights-of-way, shall be entered onto the department's GIS registry. For those sites, responsible parties shall submit the following items, for each property within or partially within the contaminated site boundaries, other than public street or highway rights-of-way or railroad rights-of-way, in a groundwater GIS registry attachment to the case close out report:
NR 726.05(2)(a)2.a.
a. A copy of the most recent deed which includes the legal description of each property, except that, in situations where a buyer has purchased property under a land contract and has not yet received a deed, a copy of the land contract which includes the legal description shall be submitted.
NR 726.05 Note
Note: Copies of deeds, or other documents with legal descriptions, are not required to be submitted for contaminated public street or highway rights-of-way or railroad rights-of-way. Information on residual groundwater or soil contamination that has migrated onto a right-of-way will be found in the documents that are submitted as part of the case close out report for the source property. It is only in the situation where the source of the contamination is in a right-of-way, that a right-of-way will be listed on the GIS registry as a separate property. In those situations, the maps that are required to be submitted, as an attachment to the case close out report for the site, will show where contaminated groundwater or soil samples were collected and will provide points of reference for locating residual contamination in the right-of-way.
NR 726.05(2)(a)2.b.
b. A copy of the certified survey map or the relevant portion of the recorded plat map for those properties where the legal description in the most recent deed or land contract refers to a certified survey map or a recorded plat map.
NR 726.05(2)(a)2.c.
c. The parcel identification number for each property, if the county in which the property is located uses parcel identification numbers.
NR 726.05(2)(a)2.d.
d. Geographic position data for each property in compliance with the requirements of
s. NR 716.15 (2) (k), unless this information was previously submitted to the agency with administrative authority for the site as part of the site investigation report, or unless the agency with administrative authority has directed that the responsible party does not need to provide geographic position data for a specific site.
NR 726.05(2)(a)3.
3. For sites with soil contamination that exceeds generic or site-specific residual contaminant levels as determined under
ss. NR 720.09,
720.11 and
720.19 at the time that case closure is requested, the properties within or partially within the contaminated site boundaries, including all public street and highway rights-of-way and railroad rights-of-way, shall be entered onto the department's GIS registry. For those sites, responsible parties shall submit the following items for each property within or partially within the contaminated site boundaries, other than public street or highway rights-of-way or railroad rights-of-way, in a soil GIS registry attachment to the case close out report:
NR 726.05(2)(a)3.a.
a. A copy of the most recent deed which includes the legal description of the property, except that, in situations where a buyer has purchased property under a land contract and has not yet received a deed, a copy of the land contract which includes the legal description shall be submitted.
NR 726.05 Note
Note: Copies of deeds, or other documents with legal descriptions, are not required to be submitted for contaminated public street or highway rights-of-way or railroad rights-of-way. Information on residual groundwater or soil contamination that has migrated onto a right-of-way will be found in the documents that are submitted as part of the case close out report for the source property. It is only in the situation where the source of the contamination is in a right-of-way, that a right-of-way will be listed on the GIS registry as a separate property. In those situations, the maps that are required to be submitted, as an attachment to the case close out report for the site, will show where contaminated groundwater or soil samples were collected and will provide points of reference for locating residual contamination in the right-of-way.
NR 726.05(2)(a)3.b.
b. A copy of the certified survey map or the relevant portion of the recorded plat map for those properties where the legal description in the most recent deed or land contract refers to a certified survey map or a recorded plat map.
NR 726.05(2)(a)3.c.
c. The parcel identification number for each property, if the county in which the property is located uses parcel identification numbers.
NR 726.05(2)(a)3.d.
d. Geographic position data for each property in compliance with the requirements of
s. NR 716.15 (2) (k), unless this information was previously submitted to the agency with administrative authority for the site as part of the site investigation report, or unless the agency with administrative authority has directed that the responsible party does not need to provide geographic position data for a specific site.
NR 726.05 Note
Note: Geographic position data for properties can be found by using the department's GIS registry that is available on the internet at
http://dnr.wi.gov/org/aw/rr/clean.htm.
NR 726.05(2)(a)4.
4. If there is residual soil contamination in a public street or highway right-of-way or a railroad right-of-way that exceeds generic or site-specific residual contaminant levels for soil as determined under
ss. NR 720.09,
720.11 and
720.19, or
ch. NR 140 enforcement standards for groundwater, the responsible party shall give written notification of the presence of the residual soil or groundwater contamination from the responsible party's source property that remains within the public street or highway right-of-way to the clerk of the town and county, or village or city where the right-of-way is located, and the municipal department or state agency that is responsible for maintaining the public street or highway, and written notification of the presence of the residual soil or groundwater contamination from the responsible party's source property that remains within the railroad right-of-way to the railroad that maintains the railroad right-of-way.
NR 726.05(2)(a)5.
5. For sites where waste was generated during the response action and was stored or treated on-site, all the waste shall be handled and disposed of in accordance with applicable state and federal laws before a case closure request is submitted.
NR 726.05(2)(am)1.1. For sites where the department has administrative authority to oversee the remediation of the site, the case close out fee and, if entry on the GIS registry is required under
par. (a) 2. or
3., the fee or fees listed in
ch. NR 749 for adding a site to the department's GIS registry shall be submitted to the department with each case closure request.
NR 726.05(2)(am)2.
2. For sites 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 for which department of agriculture, trade and consumer protection has administrative authority under s.
94.73, Stats., that are required by
par. (a) 2. or
3. to be entered onto the department's GIS registry, the fee or fees listed in
ch. NR 749 for adding a site to the department's GIS registry shall be submitted to the department before a case summary and close out form and a case close out report are submitted to the agency with administrative authority over the site. For these sites, 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: "Petroleum storage tank" is defined in s.
101.144 (1)(bm), Stats., to mean "a storage tank that is used to store petroleum products together with any on-site integral piping or dispensing system." The term "petroleum storage tank" does not include a pipeline facility.
NR 726.05(2)(b)
(b) For sites with groundwater contamination that exceeds
ch. NR 140 enforcement standards at the time that case closure is requested, including sites contaminated with petroleum products discharged from a petroleum storage tank that are eligible for closure under
chs. NR 726 and
746, the responsible party shall submit a case close out report to the agency with administrative authority for the site that documents that all of the following criteria are satisfied, if applicable:
NR 726.05(2)(b)1.
1. Adequate source control measures have been taken which include all of the following:
NR 726.05(2)(b)1.a.
a. Whether regulated or registered under
ch. SPS 310 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. SPS 310.
NR 726.05(2)(b)1.b.
b. All new and replacement underground storage tanks regulated under
ch. SPS 310 have been constructed and are being monitored in accordance with
ch. SPS 310.
NR 726.05(2)(b)1.c.
c. 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(2)(b)1.d.
d. Where applicable, immediate and interim actions have been taken in accordance with
ch. NR 708 to protect public health, safety and welfare and the environment.
NR 726.05(2)(b)1.f.
f. 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 for which groundwater use restrictions have been recorded, except that 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 (2) or
746.08 (2) shall be considered to have satisfied the criterion in this subdivision paragraph without having to provide supporting documentation other than documentation required by
ch. NR 746.
NR 726.05(2)(b)2.
2. 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
, except that 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 (2) or
(4) or
746.08 (2) or
(4), shall be considered to have satisfied the criterion in this subdivision without having to provide supporting documentation other than documentation required by
ch. NR 746.
NR 726.05(2)(b)3.
3. The groundwater plume margin is stable or receding, and after case closure, groundwater contamination 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(2)(b)3.a.
a. Properties for which a preventive action limit exemption has been granted.
NR 726.05(2)(b)3.b.
b. Properties that have been identified as having existing groundwater contamination that exceeds
ch. NR 140 enforcement standards and that will be included on the department's geographic information system registry of closed remediation sites.
NR 726.05(2)(b)4.
4. If there are
ch. NR 140 enforcement standard exceedances on any property within or partially within the contamination site boundaries, the owner of each property with
ch. NR 140 enforcement standard exceedances, other than the owners of public street or highway rights-of-way, railroad rights-of-way or properties owned by the responsible party, shall be sent a letter that contains the standard provisions in Appendix A, at a minimum. In addition, a fact sheet supplied by the department, that describes the use of natural attenuation as a final remedy, shall be enclosed with all letters that are sent to satisfy the requirements of this subdivision. The responsible party shall send these letters via certified mail, return receipt requested, or priority mail with signature confirmation, and shall submit written proof of the date on which the letters were received in a groundwater GIS registry attachment to the case close out report. If the letters are sent via priority mail with signature confirmation, the responsible party may use the signature waiver option if the responsible party has reason to believe that the owner of the property may refuse to sign for the letter. The date of receipt of these letters shall be at least 30 days prior to the date on which the agency with administrative authority completes its review of the case close out report, unless all of the affected property owners waive their right to comment within 30 days on the proposed case close out and copies of the waivers are submitted to the agency with administrative authority.
NR 726.05 Note
Note: Copies of the department's fact sheet on the use of natural attenuation as a final remedy 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 726.05(2)(b)5.
5. There is no existing or anticipated threat to public health, safety or welfare, or the environment.
NR 726.05(2)(c)
(c) For cases that have been closed conditioned upon the recording of a groundwater use restriction, the responsible party may, at any time after groundwater contaminant concentrations fall below
ch. NR 140 preventive action limits, apply for unconditional case closure and may request that the agency with administrative authority for the site issue an affidavit that can be recorded at the county register of deeds office to give notice that the previously recorded groundwater use restriction is no longer required. The responsible party may also apply for an exemption under
s. NR 140.28 if concentrations fall below
ch. NR 140 enforcement standards and the appropriate criteria under
s. NR 140.28 are met. Once an exemption is granted under
s. NR 140.28, the responsible party may apply for unconditional case closure and may request that the agency with administrative authority for the site issue an affidavit that can be recorded at the county register of deeds office to give notice that an exemption has been granted under
s. NR 140.28 and that the previously recorded groundwater use restriction is no longer required.
