NR 746.12 Interagency staff training.
NR 746.13 Dispute resolution.
Ch. NR 746 Note
Note: Ch.
NR 746 was created as an emergency rule eff. 5-18-00.
NR 746.01
NR 746.01
Purpose. One purpose of this chapter is to identify the roles, processes and procedures that guide the departments of safety and professional services and natural resources in the administration of their respective responsibilities under ss.
101.143,
101.144,
292.11 and
292.31, Stats., and
ch. 160, Stats., for oversight and supervision of high, medium and low risk sites where petroleum products have discharged from petroleum storage tanks. This chapter codifies a memorandum of understanding that is required by s.
101.144 (3m), Stats. Another purpose of this chapter is to establish standards to be applied by both agencies for determining when sites can be closed because it can be documented during either the investigation or remediation phase that the risk screening criteria in
s. NR 746.06 and the closure criteria in
s. NR 746.07 or
746.08 have been satisfied. The risk screening and closure criteria in this chapter, when used to make closure decisions, define on a site-specific basis when natural attenuation will achieve groundwater enforcement standards within a reasonable time. Nothing in this chapter is intended to limit the independent authority of either agency to carry out responsibilities not specifically described in this chapter, including, without limitation, the authority of the department of safety and professional services to apply
ch. SPS 347.
NR 746.01 Note
Note: This rule, adopted jointly by the Department of Commerce and the Department of Natural Resources, also appears in the Wisconsin Administrative Code as ch.
SPS 346.
NR 746.01 History
History: Cr.
Register, January, 2001, No. 541, eff. 2-1-01; correction made under s.
13.92 (4) (b) 6.,
7., Stats.,
Register January 2012 No. 673.
NR 746.02
NR 746.02
Applicability. This chapter only applies to sites where petroleum products have discharged from petroleum storage tanks.
NR 746.02 History
History: Cr.
Register, January, 2001, No. 541, eff. 2-1-01.
NR 746.03
NR 746.03
Definitions. In this chapter:
NR 746.03 Note
Note: Under s.
292.01 (3), Stats., "discharge" means, but is not limited to, "spilling, leaking, pumping, pouring, emitting, emptying or dumping."
NR 746.03(2)
(2) "DNR" means the department of natural resources.
NR 746.03 Note
Note: Section
160.01 (2), Stats., defines "enforcement standard" to mean "a numerical value expressing the concentration of a substance in groundwater which is adopted under ss.
160.07 and
160.09."
NR 746.03(4)
(4) "Free product" means petroleum product that is not in dissolved phase, and is present with a thickness of 0.01 feet or more as verified by more than one sampling event.
NR 746.03 Note
Note: Section
160.01 (4), Stats., defines "groundwater" to mean "any water of the state, as defined in s.
281.01 (18), occurring in a saturated subsurface geological formation of rock or soil." Section
281.01 (18), Stats., defines "waters of the state" to include "those portions of Lake Michigan and Lake Superior within the boundaries of this state, and all lakes, bays, rivers, streams, springs, ponds, wells, impounding reservoirs, marshes, watercourses, drainage systems and other surface water or groundwater, natural or artificial, public or private, within this state or its jurisdiction."
NR 746.03 Note
Note: Section
101.144 (1)(aq), Stats., defines "high-risk site" to mean "the site of a discharge of a petroleum product from a petroleum storage tank if at least one of the following applies:
NR 746.03 Note
1. Repeated tests show that the discharge has resulted in a concentration of contaminants in a well used to provide water for human consumption that exceeds a preventive action limit, as defined in s.
160.01 (6), Stats.
NR 746.03 Note
2. Petroleum product that is not in dissolved phase is present with a thickness of 0.01 feet or more, as shown by repeated measurements.
NR 746.03 Note
3. An enforcement standard is exceeded in groundwater within 1,000 feet of a well operated by a public utility, as defined in s.
196.01 (5), Stats., or within 100 feet of any other well used to provide water for human consumption.
NR 746.03 Note
4. An enforcement standard is exceeded in fractured bedrock."
NR 746.03(7)
(7) "Low permeability material" means subsurface material above bedrock, as defined in
s. NR 141.05 (5), that is at or below the water table and has a hydraulic conductivity less than or equal to 1 x 10 –5 centimeters per second that has been determined as required in
s. NR 746.05.
NR 746.03 Note
Note: Section
NR 141.05 (5) defines "bedrock" to mean " the solid rock underlying any loose surficial material such as soil, alluvium or glacial drift. Bedrock includes but is not limited to limestone, dolomite, sandstone, shale and igneous and metamorphic rock." In the absence of evidence to the contrary, the agencies consider all bedrock in Wisconsin to be fractured.
NR 746.03(8)
(8) "Low risk site" means the site of a discharge of a petroleum product from a petroleum storage tank where contaminants are contained only within the soil on the source property and there is no confirmed contamination in the groundwater.
NR 746.03(9)
(9) "Medium risk site" means the site of a discharge of a petroleum product from a petroleum storage tank where contaminants have extended beyond the boundary of the source property, or there is confirmed contamination in the groundwater, but the site does not meet the definition of a high-risk site.
NR 746.03(10)
(10) "Monitoring well" means a groundwater monitoring well designed, installed, constructed and developed in accordance with the requirements of
ch. NR 141, for the purpose of monitoring groundwater or obtaining geologic or groundwater related data. The term "monitoring well" includes piezometers and water table observation wells.
NR 746.03 Note
Note: Section
101.143 (1)(cq), Stats., defines "natural attenuation" to mean "the reduction in the concentration and mass of a substance, and the products into which the substance breaks down, due to naturally occurring physical, chemical and biological processes." These processes occur without human intervention or enhancement, and include, but are not limited to, dispersion, diffusion, sorption and retardation, and degradation processes such as biodegradation, abiotic degradation and radioactive decay.
NR 746.03(12)
(12) "Permeable material" means a subsurface material that is at or below the water table and that is not a low permeability material.
NR 746.03 Note
Note: Section
101.143 (1)(f), Stats., defines "petroleum product" to mean "gasoline, gasoline alcohol fuel blends, kerosene, fuel oil, burner oil, diesel fuel or used motor oil." The term "petroleum product" includes substances that are, or once were, constituents of a petroleum product, including petroleum product additives.
NR 746.03 Note
Note: Section
101.144 (1)(bm), Stats., defines "petroleum storage tank" 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 746.03 Note
Note: Section
160.01 (6), Stats., defines "preventive action limit" to mean "a numerical value expressing the concentration of a substance in groundwater which is adopted under s.
160.15."
NR 746.03 Note
Note: Section
160.01(6m), Stats., defines "property boundary" to mean "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."
NR 746.03(17)
(17) "Release" means the discharge to the environment from a petroleum storage tank.
NR 746.03(18)
(18) "Remedial action" means a response action taken to control, minimize or eliminate the discharge of petroleum products so that they do not present an actual or potential threat to public health, safety or welfare or the environment. The term "remedial action" includes actions taken to restore the environment to the extent practicable and to meet applicable environmental standards, and includes natural attenuation. Examples include containment, treatment, excavation, disposal, recycling or reuse, and any monitoring required to assure that such actions protect public health, safety and welfare and the environment.
NR 746.03(19)
(19) "Remediation target" means a goal that may be set for a site, to clearly establish the contaminant concentration in groundwater or soil, or both, that when achieved will result in the granting of site closure.
NR 746.03 Note
Note: Section
101.144(1)(d), Stats., defines "responsible person" to mean "a person who owns or operates a petroleum storage tank, a person who causes a discharge from a petroleum storage tank or a person on whose property a petroleum storage tank is located."
NR 746.03(21)
(21) "Site" means any area where a petroleum product has discharged.
NR 746.03 Note
Note: Because the term "discharge" has been interpreted by the Wisconsin supreme court to include the migration of hazardous substance contamination after it is released to the environment, the term "site" includes all areas to which petroleum-product contamination has migrated, including areas not on the source property. The term "site" and "source property" are not synonymous. A "site" can be larger or smaller than a "source property." The term "site" is synonymous with the term "occurrence" as that term is used by the department of Safety and Professional Services in ch.
SPS 347. The term "site" is used here in order to establish common terminology that will be used by both the department of safety and professional services and the department of natural resources in the implementation of ch.
NR 746.
NR 746.03(22)
(22) "Site closure" or "site closed" means a determination made pursuant to this chapter and
ch. NR 726 that applicable groundwater quality standards in
ch. NR 140 have been met or will be met by relying on natural attenuation and that applicable soil cleanup standards in
ch. NR 720 have been met or will be met by relying on a remedial action performance standard.
NR 746.03 Note
Note: Section
NR 700.03 (58) defines "soil" to mean " unsaturated organic material, derived from vegetation and unsaturated, loose, incoherent rock material, of any origin, that rest on bedrock other than foundry sand, debris and any industrial waste."
NR 746.03(24)
(24) "Source control" means actions taken to remove or treat soil or groundwater contamination, or both, actions taken to minimize the leaching of soil contamination to groundwater, and actions taken to prevent the migration of groundwater contamination. The term "source control" includes tank removal, the removal of free product and contaminant hot spot removal or treatment. The term "source control" does not include groundwater monitoring, soil sampling, recycling or reuse of contaminants, reliance on natural attenuation to address residual contamination, or changes to a facility's design, operation, construction or waste handling or disposal practices.
NR 746.03(25)
(25) "Source property" means the parcel of land on which petroleum-product contamination was originally released to the environment.
NR 746.03(26)
(26) "Unsaturated" means soil or other material that is found above the water table.
NR 746.03 Note
Note: Section
NR 700.03 (66m) defines "utility corridor" to mean "any utility line that runs underground and any backfilled trench that was constructed to install a water main or lateral, a sewer main or lateral or other utility line."
NR 746.03 Note
Note: Section
NR 141.05 (45) defines "water table" to mean "the surface of unconfined groundwater where the water pressure is equal to atmospheric pressure." The term "water table" is used in this chapter to establish the upper elevation of "groundwater" as that term is defined in s.
160.01 (4), Stats. Section
160.01 (4), Stats., defines "groundwater" to mean "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."
NR 746.03 History
History: Cr.
Register, January, 2001, No. 541, eff. 2-1-01.
NR 746.04(1)(1)
Administrative authority. The administrative authority of the department of safety and professional services and DNR for a site includes enforcement, setting remediation targets, remediation supervision and direction, and decision-making regarding the granting or denying closure and deciding whether or not further remedial action is required. DNR has the authority under s.
292.11 (7) (c), Stats., to issue orders to a person who possesses or controls a hazardous substance that was discharged, or who caused the discharge of a hazardous substance, specifying the remedial action that the responsible person is required to take under s.
292.11 (3), Stats. The department of safety and professional services has the authority under s.
101.144 (2) (a), Stats., to issue orders to a person who owns or operates a petroleum storage tank, a person who causes a discharge from a petroleum tank or a person on whose property a petroleum storage tank is located, to require that person to take remedial action in response to those discharges of petroleum products from petroleum storage tanks over which the department of safety and professional services has jurisdiction. The assignment of administrative authority for high-risk sites and medium and low risk sites, where discharges of petroleum products from petroleum storage tanks have occurred, shall be determined according to the following criteria:
NR 746.04(1)(a)
(a) DNR shall have administrative authority for those sites that meet any of the following criteria:
NR 746.04(1)(a)3.
3. Sites with soil or groundwater that is contaminated by one or more hazardous substances other than petroleum products discharged from a petroleum storage tank, where the petroleum contamination is commingled with one or more hazardous substances other than petroleum products from a petroleum storage tank.
NR 746.04(1)(b)
(b) The department of safety and professional services shall have administrative authority for those sites that meet both of the following criteria:
NR 746.04(1)(b)2.
2. Sites where petroleum contamination is not commingled with one or more hazardous substances other than petroleum products discharged from a petroleum storage tank.
NR 746.04(2)(a)(a) The department of safety and professional services and DNR shall jointly determine remediation targets for high-risk sites that are competitively bid or bundled with another site or sites pursuant to
s. SPS 347.337 (4) (a) 3. and 4., and shall jointly review and select remedial bids.
NR 746.04 Note
Note: Subdivisions 3. and 4. of s. SPS 347.337 (4) no longer exist.
NR 746.04(2)(b)
(b) The department of safety and professional services shall set remediation targets for low risk and medium risk sites that are competitively bid or bundled with another site or sites pursuant to
s. SPS 347.337 (4) (a) 3. and 4., and review and select remedial bids.
NR 746.04 Note
Note: Subdivisions 3. and 4. of s. SPS 347.337 (4) no longer exist.
NR 746.04(2)(c)
(c) When a remediation target is not established under
par. (a) or
(b), the goal that shall be achieved to obtain site closure is prescribed by applicable provisions in this chapter and
ch. NR 726.
NR 746.04 History
History: Cr.
Register, January, 2001, No. 541, eff. 2-1-01; corrections in (1) (intro.) and (b) (intro.), (2) (a) and (b) made under s.
13.92 (4) (b) 6.,
7., Stats.,
Register January 2012 No. 673.
NR 746.05(1)(1)
General. In conducting an investigation of a site where petroleum products have discharged from a petroleum storage tank, the responsible person shall meet the requirements of
ch. NR 716 and minimize costs while providing sufficient data necessary for risk assessment screening and decision-making under this section and
ss. SPS 347.337 and
347.339,
ss. NR 746.06,
746.07 and
746.08, and
chs. NR 720,
722 and
726. If a responsible person does not have the expertise and qualifications required under
ch. NR 712 to adequately respond to any of the requirements of this chapter, the responsible person shall retain the services of a qualified consultant to conduct the required work or analysis on behalf of the responsible person.
NR 746.05(2)(a)(a)
General. The data collected by the responsible person during the site investigation shall include, but not be limited to, the following information:
NR 746.05(2)(a)2.
2. The degree and extent of soil contamination and groundwater contamination, if any.
NR 746.05(2)(a)3.
3. Nature and distribution of geologic materials on the site and general hydrogeologic information.
NR 746.05(2)(a)4.
4. The hydraulic conductivities of materials where contaminated groundwater is found, including the downgradient perimeter of the groundwater contaminant plume.
NR 746.05(2)(a)5.
5. Whether the groundwater contaminant plume is contained within low permeability material or extends into permeable material.
NR 746.05(2)(a)6.
6. Whether there is evidence of migration of petroleum product contamination within a utility corridor or a permeable soil layer along which vapors, free product or contaminated water may flow.
NR 746.05(2)(a)7.
7. Whether there is evidence of migration or imminent migration of petroleum product contamination to building foundation drain tile, sumps or other points of entry into buildings.
NR 746.05(2)(b)
(b)
Hydraulic conductivity tests. During the site investigation, or during the gathering of additional information as directed by the agency with administrative authority under
sub. (3), the responsible person shall determine the hydraulic conductivity of materials where contaminated groundwater is found at the site, in conformance with the following requirements:
NR 746.05(2)(b)1.
1. Hydraulic conductivity shall be determined at a monitoring well located within but near the downgradient perimeter of the groundwater contaminant plume unless
subd. 2. is applicable.
NR 746.05(2)(b)2.
2. Notwithstanding the requirements in
subd. 1., the agency with administrative authority for the site may determine that a hydraulic conductivity result from a monitoring well outside of the plume is representative of the hydraulic conductivity of materials within the plume, based on a comparison of monitoring well logs for monitoring wells installed inside and outside of the plume, and that it is not necessary to conduct a hydraulic conductivity test at a monitoring well within the plume.
NR 746.05(3)
(3) Supplemental site investigation information. If the site investigation report was submitted prior to May 18, 2000, supplemental site information that is necessary to make the determinations required under
sub. (1) may be required by the agency with administrative authority. The responsible person shall use existing site data unless the agency with administrative authority for the site determines that the existing site data are insufficient to make the determinations required in
sub. (1). Existing site data may include, but are not limited to, monitoring well development data, monitoring well purging and sampling data, rising and falling head test data, yield test data, pump test data, monitoring well and boring logs, grain size analysis, local and regional geology, subsurface description, depositional environment, expected and actual degree and extent of contamination, or a combination of the data. If a determination is made by the agency with administrative authority for the site that existing site data are insufficient, the responsible person shall then gather the information necessary to make the determinations required under
sub. (1), including determining the hydraulic conductivity of the materials where contaminated groundwater is found at the site in compliance with the requirements of
sub. (2) (b).
