Register October 2013 No. 694
Chapter NR 746
AGENCY ROLES AND RESPONSIBILITIES FOR PETROLEUM CONTAMINATED SITES
NR 746.01   Purpose.
NR 746.02   Applicability.
NR 746.03   Definitions.
NR 746.04   Site authority.
NR 746.05   Tracking of remediation progress.
NR 746.06   Classification and transfer of sites.
NR 746.07   Interagency staff training.
NR 746.08   Dispute resolution.
Ch. NR 746 Note Note: Chapter NR 746 was created as an emergency rule eff. 5-18-00. Chapter 746 was repealed and recreated, Register October 2013 No. 694, eff. 11-1-13.
Ch. NR 746 Note Note: This rule, including the Appendix, was originally adopted jointly by the Department of Commerce and the Department of Natural Resources and appeared in the Wisconsin Administrative Code as ch. Comm 46 (subsequently transferred to the Department of Safety and Professional Services by 2011 Wis. Act 32, section 9110 (3) (f) and renumbered ch. SPS 346) and ch. NR 746. Effective July 2, 2013, pursuant to 2013 Wis. Act 20, section 9138 (7) (f), the authority of the Department of Safety and Professional Services over the jointly adopted rule was transferred to the Department of Natural Resources. As a result, ch. SPS 346 was removed from the Administrative Code and the rule is published only as ch. NR 746. The department of natural resources intends to initiate future rulemaking to repeal this chapter. See also the note following s. NR 746.01.
NR 746.01 NR 746.01 Purpose. The 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. 101.144, 292.11, 292.31, and 292.63, 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. 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. NR 747.
NR 746.01 History History: CR 12-023: cr. Register October 2013 No. 694, eff. 11-1-13; corrections made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.
NR 746.01 Note Note: As part of 2013 Wis. Act 20, s. 101.144, Stats., was repealed and Department of Safety and Professional Services authority for the PECFA Program was transferred to the Department of Natural Resources, which makes this rule largely unnecessary. The department of natural resources intends to initiate a future rulemaking to repeal this chapter.
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 12-023: cr. Register October 2013 No. 694, eff. 11-1-13.
NR 746.03 NR 746.03 Definitions. The definitions in ch. NR 700 apply to this chapter. In addition, in this chapter:
NR 746.03 Note Note: The definition in s. NR 700.03 (11) defines “Department" to mean “the department of natural resources."
NR 746.03(1) (1) “Discharge" has the meaning specified in s. 292.01 (3), Stats.
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) “Enforcement standard" has the meaning specified in s. 160.01 (2), Stats.
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(3) (3) “Groundwater" has the meaning specified in s. 160.01 (4), Stats.
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(4) (4) “High–risk site" has the meaning specified in s. 101.144 (1) (aq), Stats.
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 1. An enforcement standard is exceeded in fractured bedrock."
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(5) (5) “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(6) (6) “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(7) (7) “Petroleum product" has the meaning specified in s. 292.63 (1) (f), Stats.
NR 746.03 Note Note: Section 292.63 (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(8) (8) “Petroleum storage tank" has the meaning specified in s. 101.144 (1) (bm), Stats.
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(9) (9) “Preventive action limit" has the meaning specified in s. 160.01 (6), Stats.
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(10) (10) “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, or welfare or the environment.
NR 746.03(11) (11) “Responsible person" has the meaning specified in s. 101.144 (1) (d), Stats.
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(12) (12) “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 in ch. NR 747. 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 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 rests on bedrock other than foundry sand, debris and any industrial waste."
NR 746.03 History History: CR 12-023: cr. Register October 2013 No. 694, eff. 11-1-13; correction in (7) made under s. 13.92 (4) (b) 7., Stats., Register October 2014 No. 694.
NR 746.04 NR 746.04 Site authority.
NR 746.04(1)(1) Administrative authority. The administrative authority of the department of safety and professional services and the department of natural resources for a site includes enforcement, remediation supervision and direction, and decision–making regarding the granting or denying case closure and deciding whether or not further remedial action is required. The department of natural resources 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) The department of natural resources shall have administrative authority for those sites that meet any of the following criteria:
NR 746.04(1)(a)1. 1. Sites that have not been classified.
NR 746.04(1)(a)2. 2. Sites that are classified as high–risk sites.
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)1. 1. Sites that have been classified as low risk or medium risk.
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 History History: CR 12-023: cr. Register October 2013 No. 694, eff. 11-1-13.
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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.