NR 700.02(2)
(2) This chapter and chs.
NR 706 to
754 apply to actions taken by responsible parties at sites, facilities or portions of a site or facility that are subject to regulation under chs.
289 and
292, Stats., regardless of whether there is direct involvement or oversight by the department.
NR 700.02 Note
Note: The department of agriculture, trade and consumer protection has the authority under s.
94.73, Stats., to issue corrective action orders to parties who are responsible for the discharge of an agricultural chemical, to require that the responsible parties take action that is necessary to restore the environment to the extent practicable and to minimize the harmful effects of the discharge to the air, lands or waters of this state. The department of agriculture, trade and consumer protection has confirmed their intention to require that this chapter and chs.
NR 708 to
727 and
749 be applied to actions taken by responsible parties as directed by the department of agriculture, trade and consumer protection under s.
94.73, Stats. For actions directed by the department of agriculture, trade and consumer protection under s.
94.73, Stats., submittals under chs.
NR 708 to
727 and
749 shall be sent to the department of agriculture, trade and consumer protection, and approvals required by these chapters shall be obtained from the department of agriculture, trade and consumer protection.
NR 700.02 Note
Note: Persons who are not responsible parties and who voluntarily take a response action at a site or facility that is subject to regulation under ch.
289, Stats., or s.
292.31 or
292.11, Stats., are not required to comply with the standards and procedures in chs.
NR 700 to
754 unless the person is seeking the liability exemption under s.
292.15, Stats. However, the department may not consider case closure under ch.
NR 726 for the site or facility until the applicable rules in chs.
NR 700 to
754 have been complied with, and a person who did not originally fall within the definition of a responsible party may become a responsible party if the actions taken by that person cause or worsen the discharge of a hazardous substance or if the person takes possession or control of the site or facility.
NR 700.02 Note
Note: Persons who wish to conduct response actions that will be consistent with the requirements of CERCLA and the National Contingency Plan (NCP) may request that the department enter into a contract with them pursuant to s.
292.31 or a negotiated agreement under s.
292.11 (7) (d), Stats. However, a CERCLA-quality response action will likely require compliance with additional requirements beyond those contained in chs.
NR 700 to
754 in order to be consistent with CERCLA and the NCP.
NR 700.02(3m)
(3m) 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 are applicable, the more restrictive shall control. The department shall, after receipt of a written request and appropriate ch.
NR 749 fee from a responsible party, provide a letter that indicates which regulatory program or programs the department considers to be applicable to a site or facility.
NR 700.02 Note
Note: Sites or facilities or portions of a site or facility that are subject to regulation under ch.
292, 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 these statutes. In addition, federal laws such as CERCLA, RCRA, or TSCA may also apply to a site or facility or portions of a site or facility. One portion of a site or facility may be regulated under a different statutory authority than other portions of that site or facility.
NR 700.02 History
History: Cr.
Register, April, 1994, No. 460, eff. 5-1-94; renum. (3) and (4) to be (5) and (6), cr. (3),
Register, March, 1995, No. 471, eff. 4-1-95; cr. (4),
Register, April, 1995, No. 472, eff. 5-1-95; am. (1), (3) (intro.), (a) and (b), (4), (5), cr. (2m), (3) (d), (4) (b), (5) (b),
Register, February, 1996, No. 482, eff. 3-1-96; am. (2),
Register, February, 1997, No. 494, eff. 3-1-97; correction in (3) (a) made under s. 13.93 (2m) (b) 7., Stats.,
Register, January, 2001, No. 541; correction in (3) (b) made under s. 13.93 (2m) (b) 7., Stats.,
Register September 2007 No. 621;
CR 12-023: am. (1), (2), (2m), r. (3) to (5), renum. (6) to (3m) and am.
Register October 2013 No. 694, eff. 11-1-13.
NR 700.03 Note
Note: Section
292.12 (1) (a), Stats., reads: “Agency with administrative authority" means the department of agriculture, trade and consumer protection with respect to a site over which it has jurisdiction under s.
94.73 (2) or the department of natural resources with respect to a site over which it has jurisdiction under s.
292.11 (7).
NR 700.03(1m)
(1m) “Approve" or “approval" means a written acceptance by the department of a plan, report or other document that has been submitted to the department for review.
NR 700.03(1s)
(1s) “Attenuation factor" means the ratio of the indoor air concentration arising from vapor intrusion to the subsurface vapor concentration at a point or depth of interest in the vapor intrusion pathway.
NR 700.03 Note
Note: Under ch.
NR 720, the department allows the use of default attenuation factors from US EPA guidance, or the responsible party may collect enough information to develop a site-specific attenuation factor.
NR 700.03(2)(a)
(a) Soil quality that is attributable to the parent material from which the soil was derived and the natural processes which produce soil, or from contamination attributable to atmospheric deposition including the following constituents; lead, polynuclear aromatic hydrocarbons, or polychlorinated biphenyls, but not attributable to hazardous substance discharges or the discharge of pollutants, as that phrase is defined in s.
283.01, Stats.
NR 700.03(2)(b)
(b) Soil quality that is found at or within reasonable proximity to the site or facility, at a depth comparable to that of the area to be remediated, in the same soil layer and in an area unaffected by hazardous substances discharges or the discharge of pollutants.
NR 700.03 Note
Note: Under s.
292.12 (1) (b), Stats., “case closure" means “a determination by the agency with administrative authority, based on information available at the time of the review by the agency with administrative authority, that no further remedial action is necessary at a site."
NR 700.03(4)
(4) “CERCLA" means the federal comprehensive environmental response, compensation and liability act (CERCLA),
42 USC 9601 to
9675.
NR 700.03(4m)
(4m) “CERCLIS" means the comprehensive environmental response, compensation and liability information system, as compiled by the U.S. EPA.
NR 700.03 Note
Note: The federal CERCLIS list is available from the U. S. EPA, by writing to: WI Freedom of Information Act Officer, U.S. EPA Region V, 77 W. Jackson Blvd, Chicago, IL 60604.
NR 700.03(5)
(5) “CFR" means the code of federal regulations.
NR 700.03(6)
(6) “Consultant" means a person or business under contract to perform a response action taken under, or subject to regulation under, chs.
NR 702 to
754.
NR 700.03(6m)
(6m) “Contaminated site boundary" or “contaminated site boundaries" means any area within which a hazardous substance has been discharged such that the air, land, or waters have been affected by a discharge or where environmental pollution exists.
NR 700.03 Note
Note: Both the source property and other properties affected by the discharge may be included within the “contaminated site boundary." Sub. (59m) defines “source property" as “the property on which the hazardous substance discharge which is under investigation or cleanup, originally occurred." Other properties may be affected by migration of the hazardous substance through soil or groundwater.
NR 700.03(7)(a)
(a) Where the air, land or waters of the state have been affected by the discharge of a hazardous substance; or
NR 700.03(8)
(8) “Contingency plan" means a document setting out an organized, planned and coordinated course of action to be followed in the event of a hazardous substance discharge or imminent threat of a hazardous substance discharge.
NR 700.03(9)
(9) “Day" means calendar day, except where the phrase “business day" is used.
NR 700.03(10)
(10) “Debris" means 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 700.03(11)
(11) “Department" means the department of natural resources.
NR 700.03(11m)
(11m) “Department database" means the publicly accessible database available on the internet as required by ss.
292.12,
292.31, and
292.57, Stats.
NR 700.03 Note
Note: The Remediation and Redevelopment Program maintains a database called the “Bureau for Remediation and Redevelopment Tracking System" or “BRRTS". The program also maintains an internet accessible version of this database, called “BRRTS on the Web", or “BOTW". “BOTW" includes information on properties where a hazardous substance discharge has or may have taken place. The program also maintains a web-based mapping system called “Remediation and Redevelopment Sites Map" or “RRSM", that allows users to view information from the BRRTS database using a geographic information system (GIS) application. Both these applications may be found at
https://dnr.wisconsin.gov/topic/Brownfields/WRRD.html.
NR 700.03(12)
(12) “Department-funded response action" means a response action undertaken by the department using the authority of s.
292.11,
292.31 or
292.41, Stats., which is funded in whole or in part by appropriations in s.
20.370 (2) or
20.866 (2), Stats.
NR 700.03 Note
Note: Under s.
292.01 (3), Stats., “discharge" means, but is not limited to, “spilling, leaking, pumping, pouring, emitting, emptying or dumping."
NR 700.03(14)
(14) “Dispose" or “disposal" means the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid or hazardous waste into or on any land or water in a manner which may permit the waste to be emitted into the air, to be discharged into any waters of the state or otherwise to enter the environment.
NR 700.03(15)
(15) “Emergency" means a situation which requires an immediate response to address an imminent threat to public health, safety, or welfare or the environment.
NR 700.03 Note
Note: Section
NR 140.05 (7) defines “enforcement standard" to mean “a numerical value expressing the concentration of a substance in groundwater which is adopted under s.
160.07, Stats., and s.
NR 140.10 or s.
160.09, Stats., and s.
NR 140.12."
NR 700.03 Note
Note: Under s.
292.01 (3m), Stats., “engineering control" means an “action designed and implemented to contain contamination or to minimize the spread of contamination, including a cap, soil cover, or in-place stabilization, but not including a sediment cover."
NR 700.03(18)
(18) “Environment" means any plant, animal, natural resource, surface water (including underlying sediments and wetlands), groundwater, drinking water supply, land surface and subsurface strata, and ambient air within the state of Wisconsin or under the jurisdiction of the state of Wisconsin.
NR 700.03 Note
Note: Section
291.01 (4), Stats., defines “environmental pollution" to mean “the contamination or rendering unclean or impure the air, land or waters of the state, or making the same injurious to public health, harmful for commercial or recreational use, or deleterious to fish, bird, animal or plant life."
NR 700.03(20)
(20) “Environmental standards" mean those cleanup standards, performance standards, standards of control and other substantive and procedural requirements, criteria or limitations promulgated as a regulation or rule under or pursuant to federal environmental or state environmental or facility citing laws that specifically address a hazardous substance, pollutant, remedial action, location or other circumstances found at a site or facility.
NR 700.03 Note
Note: Under s.
289.01 (3), Stats., “approved facility" means “a solid or hazardous waste disposal facility with an approved plan of operation under s.
289.30 or a solid waste disposal facility initially licensed within 3 years prior to May 21, 1978, whose owner successfully applies, within 2 years after May 21, 1978, for a determination by the department that the facility's design and plan of operation comply substantially with the requirements necessary for plan approval under s.
289.30." Under s.
292.01 (1m), Stats., “approved mining facility" is defined by reference to the definition of approved mining facility in s.
289.01 (4), Stats., and also includes a mining waste site as defined in s.
295.41 (31), Stats. “Approved mining facility" as defined in s.
289.01 (4) means “an approved facility which is part of a mining site, as defined under s.
293.01 (12), used for the disposal of solid waste resulting from mining, as defined under s.
293.01 (9), or prospecting, as defined under s.
293.01 (18)." Chapter
293, Stats., applies to nonferrous metallic mining. “Mining waste site" as defined under s.
295.41 (31), Stats., means any land or appurtenances thereto used for the storage or disposal of ferrous mining waste. Subch.
III of ch. 295, Stats., applies to ferrous metallic mining. “Nonapproved facility" as defined in s.
289.01 (24), Stats., means “a licensed solid or hazardous waste disposal facility which is not an approved facility."
NR 700.03(22)
(22) “Free product" means a discharged hazardous substance or environmental pollution that is present in the environment as a floating or sinking non-aqueous phase liquid.
NR 700.03 Note
Note: Section
160.01 (4), Stats., defines “groundwater" to mean “any waters of the state, as defined in s.
281.01 (18), Stats., occurring in a saturated subsurface geological formation of rock or soil." See “waters of the state" definition in sub. (67).
NR 700.03(24)
(24) “Groundwater quality standards" mean site-specific standards developed pursuant to ch.
NR 140 and groundwater quality standards adopted by the department in ch.
NR 140, including enforcement standards, preventive action limits, indicator parameters and alternative concentration levels.
NR 700.03 Note
Note: Section
299.01 (6), Stats., defines “hazardous substance" to mean “any substance or combination of substances including any waste of a solid, semisolid, liquid or gaseous form which may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or which may pose a substantial present or potential hazard to human health or the environment because of its quantity, concentration or physical, chemical or infectious characteristics. This term includes, but is not limited to, substances which are toxic, corrosive, flammable, irritants, strong sensitizers or explosives as determined by the department."
NR 700.03 Note
Note: Section
291.01 (7), Stats., defines “hazardous waste" to mean any “solid waste identified by the department as hazardous under s.
291.05" Federal laws and rules may have broader or different definitions than the state does. If so, federal hazardous waste laws must be complied with, in addition to state laws.
NR 700.03(27)
(27) “High groundwater level" means the higher of the elevation to which the soil is saturated and observed as a free water surface in an unlined hole, or the elevation to which the soil has been seasonally or periodically saturated as indicated by soil color patterns throughout the soil profile.
NR 700.03(28)
(28) “Immediate action" means a response action that is taken within a short period of time after the discharge of a hazardous substance occurs, or after the discovery of a hazardous substance discharge or environmental pollution, to halt the discharge, contain or remove discharged hazardous substances or remove contaminated environmental media, in order to restore the environment to the extent practicable and to minimize the harmful effects of the discharge to air, lands and waters of the state and to eliminate any imminent threat to public health, safety, or welfare that may exist. This term includes both emergency and non-emergency immediate actions.
NR 700.03 Note
Note: Examples of immediate actions may be found in s.
NR 708.05 (4). If further action will be required after a non-emergency response action is taken, that action would meet the definition of “interim action" in s.
NR 700.03 (29). The principal distinction between a non-emergency, immediate action and an interim action is that a site investigation will generally be required in conjunction with an interim action, but not with a non-emergency immediate action. In addition, interim actions will be closed out using the criteria in ch.
NR 726, not the “no further action" criteria in s.
NR 708.09 which apply at the completion of an immediate action.
NR 700.03(28m)
(28m) “Industrial land use" means the utilization of a parcel of real estate for manufacturing operations that use machinery and mechanical power to produce products or services, including electrical power, or for a service business that provides storage facilities, product distribution or maintenance or repair services for machinery.
NR 700.03 Note
Note: Examples of industrial land uses include manufacturing and assembly plants; warehouses; scrap salvage operations; foundries and forging plants; metal pressing, stamping and spinning plants; electroplating facilities; tanneries; chemical processing facilities; electrical generating plants and electrical substations; slaughter houses and meat processing plants; fertilizer and pesticide packaging plants; bottling plants; wholesale bulk fuel storage and distribution facilities; railroad yards; and businesses that sell and repair motor vehicles, recreational vehicles, transportation containers or construction machinery and equipment.
NR 700.03(29)
(29) “Interim action" means a response action taken to contain or stabilize a discharge of a hazardous substance, in order to minimize any threats to public health, safety, or welfare or the environment, while other response actions are being taken or planned for the site or facility.
NR 700.03 Note
Note: Examples of interim actions may be found in s.
NR 708.11. “Interim action"does not include emergency or non-emergency immediate actions. An interim action is followed by subsequent response actions at the site or facility, unless the department determines in compliance with the requirements of ch.
NR 726, that no further response action is necessary after a site investigation has been conducted.
NR 700.03(30)
(30) “Interim action options report" means a report which identifies and evaluates various interim action options with the goal of selecting an option which meets the environmental standards for the interim action being undertaken.
NR 700.03 Note
Note: Section
NR 149.03 (41) defines “limit of detection" or “LOD" to mean “the lowest concentration or amount of analyte that can be identified, measured, and reported with confidence that the concentration is not a false positive value." For department purposes, the LOD approximates the method detection limit (MDL) and is determined by the method cited in s.
NR 149.03 (46) (MDL). See sub. (33m) for MDL.
NR 700.03 Note
Note: Section
NR 149.03 (42) defines “limit of quantitation" or “LOQ" to mean “the lowest concentration or amount of an analyte for which quantitative results can be obtained."
NR 700.03(31)
(31) “Long-term monitoring" means systematic evaluation of the selected remedial or interim action option through collection and inspection of soil data, groundwater data, surface water data, sediment data, and other relevant data.
NR 700.03(32)
(32) “Management of a hazardous substance" means the treatment, storage or disposal, including recycling, of a hazardous substance.
NR 700.03(33)
(33) “Media" means air, surface water, groundwater, sediments and land surface and subsurface strata, including soil.
NR 700.03 Note
Note: Section
NR 149.03 (46) defines the “method detection limit" to mean “the minimum concentration of an analyte that can be measured and reported with 99% confidence that the stated concentration is greater than zero, determined from analyses of a set of samples containing the analyte in a given matrix. The method detection limit is generated according to the protocol specified in
40 CFR 136, Appendix B."
NR 700.03(34)
(34) “Migration pathway" means natural geologic features or cultural features, including but not limited to water mains, sewage laterals, drain tiles and road beds, which allow the movement of a hazardous substance or environmental pollution in liquid, solid, dissolved or vapor phase.
NR 700.03(34m)
(34m) “Minority business" means a business certified by the department of safety and professional services pursuant to s.
16.287 (2), Stats.
NR 700.03(35)
(35) “Municipal population" means the number of people residing in the municipality according to the most recent department of administration estimates.
NR 700.03 Note
Note: Section
292.01 (11), Stats., defines “municipality" to mean, “any city, town, village, county, county utility district, town sanitary district, public inland lake protection and rehabilitation district, or metropolitan sewage district."
NR 700.03(37)
(37) “National priorities list" means the list, compiled by the U.S. environmental protection agency (EPA) pursuant to section 105 (8) (b) of CERCLA, of hazardous substance releases in the United States that are priorities for investigation and remedial action.
NR 700.03(38m)
(38m) “Natural attenuation'' means the reduction in the concentration and mass of a substance and its breakdown products in groundwater, due to naturally occurring physical, chemical, and biological processes without human intervention or enhancement. These processes include, but are not limited to, dispersion, diffusion, sorption and retardation, and degradation processes such as biodegradation, abiotic degradation and radioactive decay.
NR 700.03(39)
(39) “Naturally occurring background" means the quality of individual media in the vicinity of a discharge of a hazardous substance or environmental pollution that has not been affected by a hazardous substance discharge or environmental pollution.
NR 700.03(39m)
(39m) “Non-residential setting" means a setting other than a residential setting, used for commercial or industrial purposes.
NR 700.03(40)
(40) “Operation and maintenance" means measures designed to monitor, operate and maintain the effectiveness of response actions.
