Section NR 722.09 - Selection of a remedial action(1) GENERAL. An option from the range of technically feasible options shall be selected based on the results of the evaluation conducted pursuant to s. NR 722.07, in compliance with this section. If an option's cost, including all the costs listed in s. NR 722.07(4) (b), is excessive with respect to what is being technically achieved by the option relative to other available options, responsible parties may choose not to select it.(2)ENVIRONMENTAL LAWS AND STANDARDS. Responsible parties shall select a remedial action or combination of remedial actions that achieve restoration of the environment to the extent practicable, minimize the harmful effects from the contamination on the air, lands and waters of the state and comply with all applicable state and federal public health and environmental laws and environmental standards. Environmental laws and standards include:(a)Soils. Contaminated soil shall be restored in compliance with the requirements of ch. NR 720. Note: Chapter NR 720 provides for residual contaminant levels or performance standards. If residual contaminant levels are used instead of performance standards they must be determined in accordance with the requirements set forth in ch. NR 720. A performance standard maintains a condition that is protective of human health, safety and welfare and the environment. Use of a performance standard will involve land use restrictions, maintenance agreements, long-term monitoring or a combination of these.
(b)Groundwater. Contaminated groundwater shall be restored in accordance with all of the following requirements: 1. For substances that are listed in ch. NR 140, the groundwater restoration goal is the preventive action limit. The preventive action limits shall be achieved to the extent technically and economically feasible, pursuant to ss. NR 140.24 and 140.26, unless a PAL exemption is granted pursuant to s. NR 140.28.2. For substances which do not have an established standard in ch. NR 140, the department may take or require the responsible parties to conduct any necessary actions, such as developing site-specific environmental standards in cooperation with the department of health services, to protect public health, safety, or welfare or to prevent a significant damaging effect on groundwater or surface water quality for present or future consumptive or non-consumptive uses.(c)Surface water and wetlands.1. Discharges to surface waters or wetlands may not result in a surface water quality standard contained in chs. NR 102 to 106 being exceeded and may not exceed effluent limitations established by the department based on "best available control technology currently available" or, where appropriate, "best available control technology economically achievable," in accordance with ch. NR 220.2. For substances that do not have established criteria in ss. NR 102.14 and 105.05 to 105.09, discharges to surface waters or wetlands may not exceed site-specific water quality criteria established by the department pursuant to the general standards of ss. NR 102.04(1) (d) and 103.03(2) (d). Note: The water quality standards contained in chs. NR 102 to 106 are comprised of water quality criteria for the prevention of adverse tastes and odors in fish and drinking water (s. NR 102.14), acute and chronic toxicity to aquatic life (ss. NR 105.05 and 105.06, respectively), adverse effects to wild and domestic animals (s. NR 105.07), human threshold and cancer effects (ss. NR 105.08 and 105.09, respectively) and designated uses of the surface waters based on their classification and water quality standards and criteria for wetlands. Chapter NR 220 provides that for those point sources identified in s. NR 220.21(1), the department shall establish effluent limitations that are achievable by the application of the "best practicable control technology currently available" or, where appropriate, the "best available control technology economically achievable", as required in s. NR 220.21(2).
3. At sites or facilities in, or in close proximity to, surface water bodies or wetlands, active remedial actions shall be taken to prevent or minimize, to the extent practicable, potential and actual hazardous substance discharges and environmental pollution that may attain or exceed surface water or wetland criteria established in accordance with chs. NR 102 to 106.(d)Discharges to the air. All emissions to the air shall comply with applicable requirements in ch. 285, Stats., chs. NR 400 to 499, and any other applicable federal or state environmental laws. In addition, for those sites or facilities where a discharge of volatile hazardous substances has occurred, the vapor intrusion pathway shall be evaluated to determine the likelihood of those substances entering the breathing space of a structure. Air contaminated from vapor intrusion shall be restored in accordance with the following requirements: 1. At sites or facilities where vapors have migrated from the source of contamination, active remedial actions shall be taken to limit or prevent, to the extent practicable, potential and actual hazardous substance discharges and environmental pollution that may attain or exceed vapor action levels.2. The department may take or require the responsible parties to conduct any necessary actions, such as developing site-specific environmental standards in cooperation with the department of health services, to protect public health, safety, or welfare or to prevent a significant damaging effect on indoor air quality for present or future use.(e)Hazardous and solid waste.1. Any waste, debris or waste stream generated by the remedial action shall be managed in compliance with all applicable state and federal laws and regulations. Contaminated debris, at a minimum, shall be addressed to minimize the harmful effects to protect health, safety, and welfare and the environment.2. Management of materials contaminated with polychlorinated biphenyls (PCBs) shall comply with the requirements of ch. NR 157 and TSCA, if applicable.(2m)SUSTAINABLE REMEDIAL ACTION. Once the remedial action has been selected, the responsible party shall evaluate all of the following criteria, as appropriate for the selected remedial action: (a) Total energy use and the potential to use renewable energy.(b) The generation of air pollutants, including particulate matter and greenhouse gas emissions.(c) Water use and the impacts to water resources.(d) The future land use and enhancement of ecosystems, including minimizing unnecessary soil and habitat disturbance and destruction.(e) Reducing, reusing, and recycling materials and wastes, including investigative or sampling wastes.(f) Optimizing sustainable management practices during long-term care and stewardship. Note: Tradeoffs will exist when evaluating these criteria and responsible parties need to balance both the benefits and risks to human health and the environment when selecting and implementing the best overall approach. Additional information can be obtained from U.S. EPA at: http://www.clu-in.org/greenremediation/.
(3)ADDITIONAL STANDARDS OF PERFORMANCE. Each remedial action or combinations of actions shall protect public health, safety and welfare and the environment from all contaminated media, routes of exposure and contamination at the site or facility. Responsible parties shall presume that a remedial action option or combination of options is protective if it meets the criteria in sub. (2), unless the responsible party or the department determines that compliance with applicable public health and environmental laws, including environmental standards, is not protective of public health, safety, or welfare or the environment due to multiple pathways of exposure or synergistic effects of contamination. At sites or facilities where there may be synergistic effects of contamination, multiple pathways of exposure or both that pose an unacceptable threat to public health, safety or welfare or the environment, responsible parties shall attain more stringent, facility or site-specific numeric standards to ensure that public health, safety and welfare and the environment are protected. In such a situation, the department may require that the responsible parties develop a site-specific numeric or performance standard, or both, that is protective of public health, safety and welfare and the environment for the specific media, migration or exposure pathways and contamination.(4)LANDFILL DISPOSAL OF UNTREATED CONTAMINATED UNCONSOLIDATED MATERIAL. Responsible parties may only select landfill disposal for untreated contaminated unconsolidated material if such disposal is in compliance with chs. NR 500 to 538, the landfill's approved plan of operation and both of the following requirements: (a)Use of untreated contaminated unconsolidated material.1. Except as provided in subd. 2., untreated contaminated unconsolidated material may only be accepted by the landfill operator for use as daily cover in accordance with s. NR 514.04(6), if the volume of untreated contaminated unconsolidated material that is proposed to be used as daily cover does not exceed the landfill's net daily cover needs nor 12.5% of the annual volume of waste received by the landfill, or for use in the construction of soil structures within the fill area when approved for that specific use by the department, unless otherwise specifically provided in the landfill's individual license and approved plan of operation.2. Untreated contaminated unconsolidated material that is not usable as daily cover or for soil structures and for which there is no technically and economically feasible treatment alternative may be disposed of in a landfill only with prior written approval from the department, unless otherwise specifically provided in the landfill's individual license and approved plan of operation.(b)Volume limitations.1. Except as provided in subd. 2. or 3., the volume of untreated contaminated unconsolidated material from a single site or facility that is proposed for landfill disposal may not exceed 250 cubic yards as measured in situ.2. Except as provided in subd. 3., volumes of untreated contaminated unconsolidated material that exceed 250 cubic yards may be disposed of in a licensed landfill with a department-approved composite liner, or a liner that is equivalent to a composite liner in terms of environmental protection as determined by the department.3. Volumes of untreated contaminated unconsolidated material that exceed 2000 cubic yards may be disposed of in a landfill only if prior written approval is obtained from the department after the department has reviewed a remedial action options report.(5)CONTINUING OBLIGATIONS. All legal and administrative mechanisms that establish property-specific responsibilities shall be selected consistent with the provisions of ch. 292, Stats., ch. NR 726, and this chapter, and are protective of public health, safety, and welfare and the environment.Wis. Admin. Code Department of Natural Resources NR 722.09
Cr. Register, April, 1995, No. 472, eff. 5-1-95; CR 01-129: am. (2) (a), Register July 2002 No. 559, eff. 8-1-02; correction in (4) (intro.) made under s. 13.92(4) (b) 7, Stats., Register February 2010 No. 650; CR 12-023: am. (2) (b) 1., 2., renum. (2) (d) to (2) (d) (intro.) and am., cr. (2) (d) 1., 2., am. (2) (e) 2., cr. (2m), am. (4) (a) 1, (b) 3., r. and recr. (5) Register October 2013 No. 694, eff. 11-1-13. Material contaminated with polychlorinated biphenyls (PCBs) must be managed in accordance with the requirements of chs. NR 700 to 754. EPA has independent authority to regulate material contaminated with PCBs under TSCA. The department and EPA have entered into a memorandum of understanding that specifies how responsibility for government oversight at sites with PCB contamination will be determined. The memorandum of agreement can be found at: http://dnr.wi.gov/files/pdf/pubs/rr/rr786.pdf.