Section 140.24. Responses when a preventive action limit is attained or exceeded.

 

(1)   Notification and assessment. If the concentration of a substance, including indicator parameters, in groundwater attains or exceeds a preventive action limit at a point of standards application as described in s. NR 140.22 (2) :

(a) The owner or operator of the facility, practice or activity shall notify the department in writing when monitoring data is submitted that a preventive action limit has been attained or exceeded in accordance with any deadlines in applicable statutes, rules, permits or plan approvals. Where no deadlines are imposed, the owner or operator shall notify the department as soon as practical after the results are received. When the results of any private well sampling attain or exceed a preventive action limit, the owner or operator of the facility, practice or activity shall notify the department within 10 days after the results are received. The notification shall provide a preliminary analysis of the cause and significance of the concentration.

(b) Upon receipt of the notice under par. (a) , the department shall evaluate the information and, if further information is required to make the assessment under par. (c) , direct the owner or operator to prepare and submit a report by a specified deadline. The report shall assess the cause and significance of the increased concentration based on a consideration of the factors identified in par. (c) and shall propose a response to meet the objectives of sub. (2) .

(c) The department shall assess the cause and significance of the concentration of the substance in determining the appropriate response to meet the objectives of sub. (2) . In addition to all other relevant information, the department shall consider the information submitted under par. (b) and the following factors where applicable:

1. Background water quality.

a. The department shall compare background water quality data and monitoring data from wells downgradient of the facility, practice or activity to determine if downgradient water quality is adversely affected. If the background water quality at a facility, practice or activity is not known or is inadequately defined, the department may require additional sampling of existing wells, or installation and sampling of additional wells, or both.

b. Except for substances which are carcinogenic, teratogenic or mutagenic in humans, before requiring a response at a site where the background concentration of a substance is determined to be equal to or greater than the preventive action limit, the department shall determine that the proposed remedial action will protect or substantially improve groundwater quality notwithstanding the background concentrations of naturally occurring substances.

2. Reliability of sampling data. As part of its review of the quality of the sampling data, the department shall evaluate the sampling procedures, precision and accuracy of the analytical test, size of the data set, and the quality control and quality assurance procedures used. If there is insufficient information to evaluate the reliability of the sampling data, the department may require additional samples or other changes in the monitoring program at the facility, practice or activity.

3. Public health, welfare and environmental effects of the substance. The department shall consider the public health, welfare and environmental effects of the substance, including but not limited to its mobility in the subsurface, environmental fate, the risks considered when the standard was adopted and whether it is carcinogenic, mutagenic, teratogenic or has interactive effects with other substances.

4. Probability that a preventive action limit or an enforcement standard may be attained or exceeded outside the design management zone. In evaluating the probability that a preventive action limit or an enforcement standard may be attained or exceeded outside the design management zone, the department shall consider, at a minimum, geologic conditions, groundwater flow rate and direction, contaminant mobility in the subsurface and environmental fate.

5. Performance of the facility, practice or activity. The department shall consider whether the facility, practice or activity is performing as designed in accordance with the design requirements in s. NR 140.22 (1) . The department shall consider the type, age and size of the facility, practice or activity; the type of design, if applicable; the operational history; and other factors related to performance of the facility, practice or activity as appropriate.

6. Location of the monitoring point. The department shall consider the location of the monitoring point in relation to the facility, practice or activity and the design management zone in assessing the appropriate response.

7. Other known or suspected sources of the substance in the area. If other known or suspected sources are present in the vicinity of a facility, practice or activity of concern, the department shall evaluate the probability of contributions from other sources of the substance. The department shall consider, at a minimum, the number, size, type and age of nearby sources; the groundwater flow patterns; and the substances involved.

8. Hydrogeologic conditions. The department shall consider the geologic and groundwater conditions, including but not limited to the nature, thickness and permeability of the unconsolidated materials; the nature and permeability of bedrock; the depth to the water table; groundwater flow gradients, both vertical and horizontal; the position of the facility, practice or activity within the groundwater flow system; and the present and potential groundwater use in the vicinity of the facility, practice or activity at which an exceedance occurs. If there is insufficient hydrogeologic information, the department may require additional information.

9. Extent of groundwater contamination. The department shall consider the current and anticipated future extent of groundwater contamination in 3 dimensions. If water supplies are affected or threatened, the department shall evaluate the existing effects and potential risks of the substance on the potable water supplies. If the extent of contamination is not known, the department may require further documentation of the extent of contamination.

10. Alternate responses. The department shall evaluate alternate responses, including consideration of the technical and economic feasibility of alternate responses from Table 5 or 6 or both, the practicality of stopping the further release of the substance and the risks and benefits of continued operation of the facility, practice or activity and the ability of a response to meet other applicable environmental protection laws.

(2)   Response objectives. Based on its evaluation of the report required under sub. (1) , and the assessment criteria of sub. (1) (c) , the department shall specify the responses to be implemented by the owner or operator of the facility, practice or activity designed to the extent technically and economically feasible to prevent any new releases of the substance from traveling beyond the design management zone or other applicable points of standards application described in s. NR 140.22 and restore contaminated groundwater within a reasonable period of time, considering the criteria specified in s. NR 722.07 . Both the source control and the groundwater restoration components of the response shall be designed and implemented to:

(a) Minimize the concentration of the substance in groundwater at the point of standards application where technically and economically feasible;

(b) Regain and maintain compliance with the preventive action limit. If the department determines that compliance with the preventive action limit is either not technically or economically feasible, the owner or operator shall achieve compliance with the lowest possible concentration which is technically and economically feasible; and

(c) Ensure that the enforcement standard is not attained or exceeded at the point of standards application.

(3)   Range of responses for indicator parameters. Except as otherwise provided in this subsection, the range of responses which the department may take or may require if a preventive action limit for an indicator parameter identified in Table 3 has been attained or exceeded, is one or more of the responses in items 1 to 4 in Table 5. The range of responses is one or more of the responses in items 1 to 6 of Table 5 in the event the department determines that:

(a) There is a threat to public health or welfare as a result of a preventive action limit for an indicator parameter being attained or exceeded; or

(b) The results demonstrate a significant design flaw or failure of the facility to contain substances, such that the facility can be expected to emit one or more of the substances on Table 1 or 2 in excess of a preventive action limit at a point of standards application.

(4)   Range of responses for substances of public health or welfare concern. The range of responses which the department may take or may require the owner or operator of a facility, practice or activity to take if a preventive action limit for a substance of health or welfare concern has been attained or exceeded are listed in Table 5. More than one response may be taken or required by the department. - See PDF for table

(5)   No action response criteria. For facilities, practices and activities with a design management zone specified in s. NR 140.22 (3) Table 4, the department may determine that no response is necessary and that an exemption under s. NR 140.28 is not required when either of the following conditions is met:

(a) The concentration of a substance within a design management zone is detected above the preventive action limit, the enforcement standard has not been attained or exceeded within the design management zone, and the department determines that there is no indication that the preventive action limit will be attained or exceeded at any point outside the design management zone, or

(b) The background concentration of a substance is greater than the preventive action limit, the anticipated or detected incremental increase in the concentration of a substance which results from a specific facility, practice or activity is not greater than the preventive action limit, and the anticipated or detected concentration is not greater than the enforcement standard either within or outside of the design management zone.

(6)   Prohibition and closure criteria. The department may not impose a prohibition on a practice or activity or require closure of a facility which produces the substance unless the department:

(a) Bases its decision upon reliable test data;

(b) Determines, to a reasonable certainty, by the greater weight of the credible evidence, that no other remedial action would prevent the violation of the enforcement standard at the point of standards application;

(c) Establishes the basis for the boundary and duration of the prohibition; and

(d) Ensures that any prohibition imposed shall be reasonably related in time and scope to maintaining compliance with the enforcement standard at the point of standards application.

History: Cr. Register, September, 1985, No. 357 , eff. 10-1-85; am. (5) (intro.) and (6) (intro.), Register, October, 1988, No. 394 , eff. 11-1-88; am. (1) (intro.), (a), (b), (c) (intro.), 5. and 10., (2) (intro.), and (5) (intro.), renum. (7) to be NR 104.02 (4), Register, January, 1992, No. 433 , eff. 2-1-92; am. (1) (intro.), (c) (intro.), (3) (intro.) and Table 5, Register, March, 1994, No. 459 , eff. 4-1-94; am. (1) (a), (5) (intro.), Register, August, 1995, No. 476 , eff. 9-1-95; am. (2) (intro.), (4) and Table 5, Register, October, 1996, No. 490 , eff. 11-1-96; am. (1) (a), Register, December, 1998, No. 516 , eff. 1-1-99.

Note

Section 292.11 (2) (a) , Stats., requires that the department be notified immediately of hazardous substance discharges. Microsoft Windows NT 6.1.7601 Service Pack 1 See s. NR 140.27 . Microsoft Windows NT 6.1.7601 Service Pack 1