Wisconsin Administrative Code
Department of Natural Resources
NR 100-199 - Environmental Protection General
Chapter NR 140 - Groundwater Quality
Subchapter III - Evaluation and Response Procedures
Section NR 140.28 - Exemptions

Universal Citation: WI Admin Code ยง NR 140.28

Current through August 26, 2024

(1) APPLICABILITY.

(a) The department may not approve a proposed facility, practice or activity at a location where a preventive action limit or enforcement standard adopted under s. NR 140.10 or has been 140.12 attained or exceeded unless an exemption has been granted under this section.

(b) For an existing facility, practice or activity, a response is required under s. NR 140.24(2) or 140.26(2) when a preventive action limit or an enforcement standard has been attained or exceeded at a point of standards application unless an exemption has been granted under this section or the criteria of s. NR 140.24(5) (a) or (b) are met.

(c) For an existing facility, practice or activity that has taken or is taking a response under s. NR 140.24(2) or 140.26(2), a continued response is required unless a substance no longer attains or exceeds a preventive action limit or an exemption has been granted under this section.

(d) If a substance or remedial material is to be infiltrated or injected into groundwater at a concentration which attains or exceeds a preventive action limit, or at any concentration for a substance or remedial material for which a groundwater quality standard has not been established under this chapter, a temporary exemption is required under sub. (5).

(2) CRITERIA FOR GRANTING EXEMPTIONS WHERE THE BACKGROUND CONCENTRATION IS BELOW THE PREVENTIVE ACTION LIMIT.

(a) The department may grant an exemption under this section to a facility, practice or activity which is regulated by the department in an area where the background concentration of nitrate or a substance of public welfare concern is below the preventive action limit if the facility, practice or activity is designed and implemented to achieve the lowest possible concentration for that substance which is technically and economically feasible and the existing or anticipated increase in the concentration of that substance does not present a threat to public health or welfare.

(b) The department may grant an exemption under this section to a facility, practice or activity which is regulated by the department in an area where the background concentration of a substance of public health concern, other than nitrate, is below the preventive action limit for that substance if all of the following occur:
1. The measured or anticipated increase in the concentration of the substance will be minimized to the extent technically and economically feasible.

2. Compliance with the preventive action limit is either not technically or economically feasible.

3. The enforcement standard for that substance will not be attained or exceeded at the point of standards application.

4. Any existing or projected increase in the concentration of the substance above the background concentration does not present a threat to public health or welfare.

Note: An exemption may be considered under this subsection even if monitoring data indicates no detectable background concentration of the substance.

(3) CRITERIA FOR GRANTING EXEMPTIONS WHERE THE BACKGROUND CONCENTRATION IS ABOVE A PREVENTIVE ACTION LIMIT.

(a) The department may grant an exemption under this section to a facility, practice or activity which is regulated by the department in an area where the background concentration of nitrate or a substance of public welfare concern attains or exceeds the preventive action limit if the facility, practice or activity is designed to achieve the lowest possible concentration for that substance which is technically and economically feasible and the existing or anticipated increase in the concentration of the substance does not present a threat to public health or welfare.

(b) The department may grant an exemption under this section to a facility, practice or activity which is regulated by the department in an area where the background concentration of a substance of public health concern, other than nitrate, attains or exceeds a preventive action limit for that substance:
1. If the facility, practice or activity has not caused and will not cause the further release of that substance into the environment; or

2. If the background concentration of the substance does not exceed the enforcement standard for that substance, the facility, practice or activity has not caused and will not cause the concentration of the substance to exceed the enforcement standard for that substance at a point of standards application and the facility, practice or activity is designed to achieve the lowest possible concentration of that substance which is technically and economically feasible.

(4) CRITERIA FOR GRANTING EXEMPTIONS WHERE THE BACKGROUND CONCENTRATION IS ABOVE AN ENFORCEMENT STANDARD.

(a) The department may grant an exemption under this section to a facility, practice or activity which is regulated by the department in an area where the background concentration of nitrate or a substance of public welfare concern attains or exceeds an enforcement standard if the facility, practice or activity is designed to achieve the lowest possible concentration for that substance which is technically and economically feasible and the existing or anticipated increase in the concentration of the substance does not present a threat to public health or welfare.

(b) The department may grant an exemption under this section to a facility, practice or activity which is regulated by the department in an area where the background concentration of a substance of public health concern, other than nitrate, attains or exceeds the enforcement standard for that substance if:
1. The facility has not caused and will not cause the further release of that substance into the environment; or

2.
a. The facility is designed to achieve the lowest possible concentration of that substance which is technically and economically feasible; and

b. The existing or anticipated increase in the concentration of the substance has not caused or will not cause an increased threat to public health or welfare; and

c. The existing or anticipated incremental increase in the concentration of the substance by itself, has not exceeded or will not exceed the preventive action limit.

(c) The department shall take action under s. NR 140.26 if it determines that the increase in the concentration of the substance causes an increased threat to public health or welfare or it determines that the incremental increase in the concentration of the substance, by itself, exceeds the preventive action limit.

(5) CRITERIA FOR GRANTING A TEMPORARY EXEMPTION WHERE INFILTRATION OR INJECTION IS UTILIZED FOR A REMEDIAL ACTION.

(a) General. In lieu of an exemption granted in compliance with the criteria in subs. (2) to (4), the department may grant a temporary exemption if the criteria in this subsection are complied with. This exemption applies to the owner or operator of a facility, practice or activity that is undertaking a remedial action that: includes the infiltration or injection of contaminated groundwater or remedial material, has been approved by the department, and will comply with the applicable response objectives under s. NR 140.24 or within a 140.26 reasonable period of time. The owner or operator of the facility, practice or activity may submit a temporary exemption request to the department at the same time or after the department has approved the remedial action.

(b) Exemption request. The owner or operator of the facility, practice or activity shall submit a request for a temporary exemption to the department. As part of the request, the applicant shall indicate how the exemption prerequisites under par. (c) and applicable remedial design, operational and monitoring criteria under par. (d) will be met.

Note: For most remedial actions, a microcosm or treatability study, or other bench scale or pilot scale study will be required by the department prior to consideration of an exemption for the full-scale remedial action under this section. If a pilot scale study is deemed necessary before an exemption for a full-scale remedial action can be granted, a separate temporary exemption issued under this section is required before the pilot scale study can begin.

(c) Exemption prerequisites. As part of the temporary exemption request, the owner or operator shall demonstrate to the satisfaction of the department that all of the following requirements will be met:
1. The remedial action for restoring contaminated soil or groundwater, and any infiltrated or injected contaminated water and remedial material, shall achieve the applicable response objectives required by s. NR 140.24(2) or 140.26(2) within a reasonable period of time.

2. The type, concentration and volume of substances or remedial material to be infiltrated or injected shall be minimized to the extent that is necessary for restoration of the contaminated soil or groundwater and be approved by the department prior to use.

3. Any infiltration or injection of contaminated water or remedial material into soil or groundwater will not significantly increase the threat to public health or welfare.

4. No uncontaminated or contaminated water, substance or remedial material will be infiltrated or injected into an area where a floating non-aqueous phase liquid is present in the contaminated soil or groundwater.

5. There will be no expansion of soil or groundwater contamination, or migration of any infiltrated or injected contaminated water or remedial material, beyond the edges of previously contaminated areas, except that infiltration or injection into previously uncontaminated areas may be allowed if the department determines that expansion into adjacent, previously uncontaminated areas is necessary for the restoration of the contaminated soil or groundwater, and the requirements of subd. 1. will be met.

6. All necessary federal, state and local licenses, permits and other approvals are obtained and all applicable environmental protection requirements will be complied with.

Note: The issuance of a wastewater discharge permit by the department is required prior to the infiltration or injection of substances or remedial material into unsaturated soil or groundwater for discharges, as defined by s. 283.01(4), Stats. A wastewater discharge permit establishes the effluent or injection limits for substances or remedial material which may be infiltrated or injected into unsaturated soil or groundwater. A temporary exemption granted under this subsection applies to substances or remedial material which may enter groundwater or may be detected at a point of standards applications; it does not apply to substances or remedial material infiltrated or injected into unsaturated soil.

(d) Remedial action design, operation and monitoring criteria. In addition to providing information on how the requirements under par. (c) will be met, the application shall specify the following information where applicable.
1. The remedial action design, operation and soil and groundwater monitoring procedures to insure compliance with the requirements under par. (c) and applicable criteria under this paragraph.

2. The level of pre-treatment for contaminated groundwater prior to reinfiltration or reinjection.

3. The types and concentrations of substances or remedial material being proposed for infiltration or injection.

4. The volume and rate of infiltration or injection of contaminated groundwater or remedial material.

5. The location where the contaminated groundwater or remedial material will be infiltrated or injected.

(e)Granting an exemption. The department may only grant a temporary exemption under this subsection at the same time or after the department has approved the remedial action. When the department grants an exemption under this subsection, it shall follow the exemption procedures included in sub. (6) and shall require the owner or operator of the facility, practice or activity to comply with the requirements and criteria in pars. (c) and (d). The temporary exemption shall also include:
1. The expiration date of the temporary exemption. The expiration date shall be selected to achieve the applicable response objectives required by s. NR 140.24(2) or 140.26(2) within a reasonable period of time, not to exceed 5 years from the effective date of the exemption. The temporary exemption may be reissued following a department review of information documenting the performance of the remedial action and a successful demonstration that reissuance of the exemption is necessary to achieve the response objectives required by s. NR 140.24(2) or 140.26(2).necessary relating to the temporary exemption.

(f) Responses to exemption violations. If the department determines that the conditions or requirements specified in the temporary exemption are not being met, the department may:
1. Require that the owner or operator of the facility, practice or activity revise the remedial action design, operation or monitoring procedures in accordance with par. (d). All revisions shall comply with the requirements established under pars. (c) and (e) and may require approval from the department prior to implementation.

2. Revoke the exemption and require implementation of an alternate remedial action to restore soil or groundwater quality.

(6),EXEMPTION PROCEDURES. If the department grants an exemption under this section for a substance or a remedial material, it shall specify:

(a) The substance or remedial material to which the exemption applies;

(b) The terms and conditions of the exemption, which may include an alternative concentration limit, under which the department may seek a response under s. NR 140.24 or relating 140.26 to the substance or remedial material; and

(c) Any other conditions relating to the exemption.

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