GROUNDWATER PROTECTION STANDARDS
Duties of department.
Identification of groundwater contamination; categories.
Establishment of enforcement standards; substances of public health concern.
Establishment of enforcement standards; substances of public welfare concern.
Methodology to establish enforcement standard.
Establishment of preventive action limits.
Collection of information.
Regulatory agency; review of existing regulations; design and management criteria.
Adoption of rules for regulatory responses for groundwater contamination.
Implementation of responses for specific sites; preventive action limits.
Implementation of responses for specific sites; enforcement standards.
Exceptions for private on-site wastewater treatment systems.
Exceptions for aquifer storage and recovery systems.
Substances in groundwater; monitoring.
Petitioning for rule making.
Common law and liability.
No mandatory well repair as a condition for testing.
Cooperation with American Indian tribes and bands.
Groundwater coordinating council.
Ch. 160 Cross-reference
See also ch. NR 140
, Wis. adm. code.
The legislature recognizes that prior to May 11, 1984, most groundwater regulatory programs were not based on numerical standards. The legislature intends, by the creation of this chapter, to minimize the concentration of polluting substances in groundwater through the use of numerical standards in all groundwater regulatory programs. The numerical standards, upon adoption, will become criteria for the protection of public health and welfare, to be achieved in groundwater regulatory programs concerning the substances for which standards are adopted. To this end, the legislature intends that:
This chapter will establish an administrative process which will produce numerical standards, comprised of enforcement standards and preventive action limits, for substances in groundwater. As more specifically provided in this chapter, administrative procedures also provide for minimizing the concentration of substances in groundwater.
The enforcement standards and preventive action limits will be adopted under the authority of this chapter, independent of any regulatory programs concerning the substances for which enforcement standards and preventive action limits are adopted.
This chapter supplements the regulatory authority elsewhere in the statutes, whether the regulatory programs exist under current statutes on May 11, 1984, or are created after that date. Regulatory agencies will continue to exercise the powers and duties in those regulatory programs, consistent with the enforcement standards and preventive action limits for substances in groundwater under this chapter. This chapter provides guidelines and procedures for the exercise of regulatory authority which is established elsewhere in the statutes, and does not create independent regulatory authority.
In order to comply with this chapter, a regulatory agency is not required to adopt a particular type of regulation; regulatory agencies are free to establish any type of regulation which assures that regulated facilities and activities will not cause the concentration of a substance in groundwater affected by the facilities or activities to exceed the enforcement standards and preventive action limits under this chapter at a point of standards application. A regulatory agency may adopt regulations which establish specific design and management criteria for regulated facilities and activities, if the regulations will ensure that the regulated facilities and activities will not cause the concentration of a substance in groundwater affected by the facilities or activities to exceed the enforcement standards and preventive action limits under this chapter at a point of standards application.
The enforcement standards and preventive action limits adopted under this chapter provide adequate safeguards for public health and welfare. However, this chapter does not prevent regulatory agencies from adopting regulations under regulatory authority elsewhere in the statutes based on the best currently available technology for regulated activities and practices which ensure a greater degree of groundwater protection.
Where necessary to comply with federal statutes or regulations, the department of natural resources may adopt rules in regulatory programs administered by it which are more stringent than the enforcement standards and preventive action limits adopted under this chapter.
A regulatory agency may take any actions within the context of regulatory programs established in statutes outside of this chapter, if those actions are necessary to protect public health and welfare or prevent a significant damaging effect on groundwater or surface water quality for present or future consumptive or nonconsumptive uses, whether or not an enforcement standard and preventive action limit for a substance has been adopted under this chapter. Nothing in this chapter requires the department of health services or the department of natural resources to establish an enforcement standard for a substance if a federal number or state drinking water standard has not been adopted for the substance and if there is not sufficient scientific information to establish the standard.
Preventive action limits shall serve as a means to inform regulatory agencies of potential groundwater contamination problems, to establish the level of groundwater contamination at which regulatory agencies are required to commence efforts to control the contamination and to provide a basis for design and management practice criteria in administrative rules. A preventive action limit is not intended to be an absolute standard at which remedial action is always required.
See also ch. NR 140
, Wis. adm. code.
The promulgation of rules that prescribe the use of risk-based methodologies to respond to petroleum contamination in soil and groundwater would violate ch. 160. OAG 3-99
As used in this chapter, unless the context requires otherwise:
“Department," when used without qualification, means the department of natural resources.
“Enforcement standard" means a numerical value expressing the concentration of a substance in groundwater which is adopted under ss. 160.07
“Federal number" means a numerical expression of the concentration of a substance in water, established as:
A drinking water standard or maximum contaminant level, by the federal environmental protection agency;
A suggested no-adverse-response level, by the federal environmental protection agency; or
For oncogenic substances, a concentration based on a risk level determination by the federal environmental protection agency or a concentration based on a probability of risk model determined by the national academy of sciences.
“Groundwater" means 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.
“Point of standards application" means the specific location, depth or distance from a facility, activity or practice at which the concentration of a substance in groundwater is measured for purposes of determining whether a preventive action limit or an enforcement standard has been attained or exceeded.
“Preventive action limit" means a numerical value expressing the concentration of a substance in groundwater which is adopted under s. 160.15
“Property boundary" means 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.
“Regulatory agency" means the department of agriculture, trade and consumer protection, the department of safety and professional services, the department of transportation, the department of natural resources and other state agencies which regulate activities, facilities or practices which are related to substances which have been detected in or have a reasonable probability of entering the groundwater resources of the state.
“Substance" means any solid, liquid, semisolid, dissolved solid or gaseous material, naturally occurring or man-made chemical, parameter for measurement of water quality or biological organism which, in its original form, or as a metabolite or a degradation or waste product, may decrease the quality of groundwater.
Duties of department.
The department shall exercise both the responsibilities assigned specifically to it under this chapter as well as those assigned generally to the department as a regulatory agency.
History: 1983 a. 410
See also ch. NR 140
, Wis. adm. code.
Identification of groundwater contamination; categories. 160.05(1)(1)
Each regulatory agency shall submit to the department a list of those substances which are related to facilities, activities and practices within its authority to regulate and which are detected in or have a reasonable probability of entering the groundwater resources of the state.
Any person may petition a regulatory agency to add a substance to or delete a substance from the list submitted to the department under sub. (1)
. The petition shall clearly and concisely state all of the following:
The name of the substance which is proposed to be added or removed from the list.
The regulatory authority of the regulatory agency over the facility, activity or practice which is the source of the substance.
The reasons for believing the substance exists in or has a reasonable probability of entering the groundwater or the reasons for believing the substance should be removed from the list.
Within a reasonable period of time after the receipt of a petition a regulatory agency shall either deny the petition in writing or submit the name of the substance to the department under sub. (1)
. If the regulatory agency denies the petition, it shall give notice of the denial promptly to the person who filed the petition, including a statement of its reasons for the denial.
(3) Establish categories.
Within 60 days following receipt of a name of a substance under sub. (1)
, the department shall place the substance into one of the following categories:
Category 1, if the substance is detected in groundwater in concentrations in excess of a federal number for that substance.
Category 2, if the substance is detected in groundwater and is of public health or welfare concern but:
Is not detected in concentrations in excess of a federal number; or
Category 3, if the substance has a reasonable probability of being detected in groundwater and is of public health or welfare concern.
(4) Ranking within categories.
The department shall rank each substance within its category. The department shall give highest rankings to those substances which pose the greatest risks to the health or welfare of persons in the state, taking into consideration, among other things, the following characteristics:
(5) Revision of substance lists.
The department shall revise, as necessary, the ranking of substances within categories to include additional substances as they are reported, to reflect a change in the status of a substance which requires that it be placed in a different category or to remove from the list substances which are not shown to involve public health or welfare concerns or which do not have a reasonable probability of entering the groundwater.
The department shall designate which of the substances in each category are of public health concern and which are of public welfare concern.
In determining whether a substance is of public health concern, the department shall take into account the degree to which the substance may:
Cause or contribute to an increase in illness or incapacity, whether chronic or acute;
Pose a substantial present or potential hazard to human health because of its physical, chemical or infectious characteristics; or
Cause or contribute to other adverse human health effects or changes of a chronic or subchronic nature even if not associated with illness or incapacity.
In determining whether a substance is of public health concern, the department may consider other effects not specified under par. (b)
if those effects are reasonably related to public health.
In determining whether a substance is of public welfare concern, the department shall take into account whether the substance may:
Influence the aesthetic suitability of water for human use;
Influence the suitability of water for uses other than human drinking water; or
Have a substantial adverse effect on plant life or animal life.