Register November 2013 No. 695
Chapter NR 727
CONTINUING OBLIGATIONS REQUIREMENTS AND REOPENING CLOSED CASES
NR 727.01   Purpose.
NR 727.02   Applicability.
NR 727.03   Definitions.
NR 727.05   Continuing obligation responsibilities.
NR 727.07   Notification of the agency with administrative authority regarding continuing obligations.
NR 727.09   Updating the department database or continuing obligations.
NR 727.11   Fees.
NR 727.13   Reopening closed cases.
NR 727.01 NR 727.01 Purpose. The purpose of this chapter is to specify the minimum responsibilities of responsible parties and owners and occupants of properties with residual contamination, where continuing obligations have been imposed in a closure approval letter or in a remedial action plan approval, or for local government units where continuing obligations have been imposed by the department under ch. NR 708; to specify the process for updating closure conditions, continuing obligations and information included in the department database; and to specify the criteria for reopening a closed case. This chapter is adopted pursuant to ss. 227.11 (2), 287.03, and 289.06, Stats., and ch. 292, Stats.
NR 727.01 History History: CR 12-023: cr. Register October 2013 No. 694, eff. 11-1-13.
NR 727.02 NR 727.02 Applicability. This chapter applies to the responsibilities for continuing obligations and related actions at sites or facilities that are subject to regulation under ch. 292, Stats., regardless of whether there is direct involvement or oversight by the department.
NR 727.02 History History: CR 12-023: cr. Register October 2013 No. 694, eff. 11-1-13.
NR 727.03 NR 727.03 Definitions. The definitions in s. NR 700.03 apply to this chapter.
NR 727.03 Note Note: “Agency with administrative authority" or “agency" is used in several sections of ch. NR 727 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, and to review information on the department database regarding compliance with conditions of closure.
NR 727.03 History History: CR 12-023: cr. Register October 2013 No. 694, eff. 11-1-13.
NR 727.05 NR 727.05 Continuing obligation responsibilities.
NR 727.05(1)(1) A party or person who owns or occupies a property where a continuing obligation has been imposed under either s. NR 708.17 or 722.15 or ch. NR 726 shall:
NR 727.05(1)(a) (a) Comply with the requirements imposed by the agency, without regard to when the person obtained or occupied the property. This may include any continuing obligation necessary to ensure that conditions at the property, site or facility remain protective of public health, safety, and welfare and the environment.
NR 727.05 Note Note: Ch. 292, Stats., allows for legally enforceable agreements (private contracts) between parties to address the continuing obligations imposed by an agency. Since the agency is not a party to these agreements, the property owner remains responsible for compliance with a continuing obligation if an issue arises.
NR 727.05(1)(b) (b) Perform the following actions in compliance with the conditions specified by the agency, as applicable:
NR 727.05(1)(b)1. 1. Operate and maintain the response required.
NR 727.05(1)(b)2. 2. Maintain an inspection log, and keep it on the premises or at the location specified in the maintenance plan until the continuing obligation has been satisfied or removed.
NR 727.05(1)(b)3. 3. Submit the inspection log electronically, on a form provided by the department, to the agency at the frequency required.
NR 727.05(1)(b)4. 4. Conduct long-term monitoring.
NR 727.05(1)(c) (c) Allow reasonable access to the agency for inspection of any required continuing obligations.
NR 727.05(1)(d) (d) Manage any residual contamination in accordance with applicable state and federal laws.
NR 727.05(2) (2) For cases where a continuing obligation is required under either s. NR 708.17 or 722.15, or ch. NR 726, the property owner shall notify anyone purchasing the property of the responsibility to comply with the continuing obligation.
NR 727.05(3) (3) For cases where occupants are responsible for maintenance of a continuing obligation under either s. NR 708.17 or 722.15 or ch. NR 726, the property owner shall include the continuing obligation in the lease agreement.
NR 727.05(4) (4) In order to maintain the off-site exemption under s. 292.13, Stats., the property owner, or occupant if applicable, shall avoid all of the following:
NR 727.05(4)(a) (a) Interference with response actions taken.
NR 727.05(4)(b) (b) Actions that may make the contamination worse or that would cause or worsen the discharge of a hazardous substance to the environment.
NR 727.05 History History: CR 12-023: cr. Register October 2013 No. 694, eff. 11-1-13.
NR 727.07 NR 727.07 Notification of the agency with administrative authority regarding continuing obligations. For situations where a continuing obligation has been imposed under either s. NR 708.17, 722.15, or 726.13, the property owner shall notify the agency within 45 days prior to taking any of the following actions, to determine whether further action may be necessary to protect human health, safety, or welfare or the environment:
NR 727.07(1) (1) Removal of a building, cover, including a soil cover, barrier, or engineered containment structure or a portion thereof.
NR 727.07(2) (2) Removal of a structural impediment, including any structural impediment that prevented completion of the investigation or remediation.
NR 727.07(3) (3) Change from industrial to non-industrial land use, including where soil standards applied at closure were based on industrial land use exposure assumptions.
NR 727.07(4) (4) Change in use of a vapor mitigation system, including a passive or active vapor mitigation system.
NR 727.07(5) (5) Change in use from non-residential setting to residential setting, including where vapor risk screening levels were based on non-residential setting exposure assumptions at closure.
NR 727.07 Note Note: This may include sites or facilities where exposures applicable to non-residential settings, (i.e., commercial or industrial uses, or continued use of the compound of concern), changes to a residential setting (i.e. single or multiple family dwellings, or educational, child care and senior care facilities).
NR 727.07(6) (6) Construction of a building over residual soil or groundwater contamination by volatile compounds, including where a building did not exist at closure, but where construction of a building without adequate vapor control may result in a completed exposure pathway.
NR 727.07(7) (7) Site-specific conditions, including any other situation where the agency required notification, on a case-by-case basis, including changes in use or occupancy of a property.
NR 727.07 History History: CR 12-023: cr. Register October 2013 No. 694, eff. 11-1-13.
NR 727.09 NR 727.09 Updating the department database or continuing obligations. In order to evaluate any of the following situations, the agency may require that the person requesting a change submit information, as necessary:
NR 727.09(1) (1)Compliance with continuing obligations. The agency may require additional response actions be taken at sites or facilities closed with deed restrictions or where continuing obligations have been imposed under either s. NR 708.17, 722.15, or 726.13, in cases where compliance with the restriction, condition, or continuing obligation has not been maintained.
NR 727.09 Note Note: The department conducts audits of cases where continuing obligations have been imposed. In some cases, these audits identify a lack of compliance with the continuing obligation imposed, and measures are required to return the site to compliance.
NR 727.09(2) (2)Updating a groundwater use restriction. For cases that have been closed conditioned upon the recording of a groundwater use restriction, the responsible party or property owner 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 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 a preventive action limit 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 request that the agency 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.
NR 727.09 Note Note: Prior to November, 2001, cases with groundwater enforcement standard exceedances were closed with a deed restriction, called a groundwater use restriction. The groundwater use restriction required department review and approval of a water supply well constructed or reconstructed on an affected property. Since November, 2001, these sites have been closed by adding them to a department database. Chapter NR 812 contains the requirement for department review and approval of any well constructed or reconstructed on a property listed on the GIS Registry (department database). Responsible parties or property owners of sites or facilities or properties subsequently meeting groundwater enforcement standards may request to have the deed restriction updated and the site or property removed from the department database, or that the information on the database be modified.
NR 727.09(3) (3)Updating a deed restriction. For cases that have been closed with a deed restriction that has since been satisfied, the responsible party or property owner may, at any time after the conditions necessitating a deed restriction have been either eliminated or satisfied and the restriction is no longer needed, request that the agency issue a written determination that can be referenced in an affidavit, confirming this situation. An affidavit can be then recorded at the county register of deeds office to give notice that some or all of the conditions, as applicable, in the previously recorded deed restriction are no longer required.
NR 727.09 Note Note: Prior to June 3, 2006, cases meeting certain conditions were closed with a deed restriction in accordance with ch. NR 726. Since that time, the use of deed restrictions for closure have been replaced with conditions in a closure letter under ch. NR 726 or in a remedial action approval under ch. NR 722.
NR 727.09(4) (4)Removal from the department database. For cases that have been included on the department database under s. NR 708.17, 722.15, or 726.13, the responsible party, property owner or other party may apply to the agency for removal of the site or facility or property, as applicable, from the department database. A site may not be removed from the database until all applicable standards have been met and all requirements imposed have been satisfied or nullified. A request may be submitted to the agency at any time after any of the following have been achieved:
NR 727.09(4)(a) (a) Groundwater contaminant concentrations are below ch. NR 140 enforcement standards.
NR 727.09(4)(b) (b) Soil contaminant concentrations are below ch. NR 720 soil standards.
NR 727.09(4)(c) (c) Other requirements or continuing obligations imposed have been satisfied or nullified.
NR 727.09(5) (5)Modification of the department database. For cases that have been included on the department database under s. NR 708.17, 722.15, or 726.13, the responsible party, property owner or other party may request that the department modify information on the department database at any time after any of the following have been achieved:
NR 727.09(5)(a) (a) Groundwater contaminant concentrations are below ch. NR 140 enforcement standards.
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Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.