USEPA Remedial Project Manager (2117) Minnesota Pollution … · 2019. 7. 15. · Leah Evis uly 12,...

Dr. Leah Evison July 12, 2013 USEPA Remedial Project Manager (2117) Minnesota Pollution Control Agency 520 Lafayette Road St. Paul, Minnesota 55155 RE: Institutional Control Implementation and Assurance Plan Revision 1 Burnham Canal Superfund Alternative Site, Milwaukee, Wisconsin Miller Compressing Company USEPA ID – WIN000510222 Dear Ms. Evison: On behalf of Miller Compressing Company (Miller), Natural Resource Technology, Inc. (NRT) is submitting the enclosed Institutional Control Implementation and Assurance Plan (ICIAP) Revision 1 to address the June 6, 2013 comments issued by USEPA as follows:

1. Section 2 intro paragraph: Please add language from the ROD which describes the required ICs and their intended purpose, for example, the following: The ROD indicates that the selected remedy includes a component “Implement ICs, including zoning restrictions, deed restrictions, and the use of fences and signs to preserve the integrity of the remedy” (p. 2). The ROD’s description of the selected soil remedy for the paved area indicates that “ICs will be implemented to ensure that the land is restricted to industrial or commercial use and the existing cover remains in place” (p. 14). The ROD’s description of the selected sediment remedy indicates that “ICs will be implemented to ensure that the sand cover remains in place and is not disturbed” (p. 17).

Response: Section 2 intro paragraph updated as requested.

2. Section 2.2.1 GIS Registry: Please include additional details about the Registry, e.g., copies of the applicable Wisconsin statutes, including information explaining that the requirements apply to current and future property owners.

Response: Details on the GIS Registry was added to Section 2.2.1 as requested. Publication PUB-RR-819 explains property owner legal requirements under s. 292.12, Wis. Stats, regarding continuing obligations, as summarized in the report.

3. Section 2.2.2 Subaqueous Sediment Cap: Please move the statement about dredging restrictions from the previous section to here and describe and add a citation for the Wisconsin Chapter 30 requirements that restrict dredging. Please also add language to indicate that currently efforts are underway at WDNR to modify the GIS registry to include sediments and that if they are successful, that the Burnham Canal sediments will be added to the registry.

Response: Section 2.2.2 updated to include Wisconsin Chapter 30 citation, and a discussion about GIS applicability to sediments was added as requested.

4. Section 2.2.3 Paved and Unpaved Upland Areas: Please add draft specifics that will be submitted to the GIS Registry, including the types of use limitations. Please add details concerning the current zoning of the property (e.g, map and copy of the zoning ordinance).

234 W. Florida Street, Fifth Floor Milwaukee, Wisconsin 53204

(P) 414.837.3607 (F) 414.837.3608 Environmental consultants

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Institutional Control Implementationand Assurance Plan Revision 1 Burnham Canal Superfund Alternative SiteMilwaukee, Milwaukee County, WisconsinEPA ID: WIN000510222 Project No: 2117 July 12, 3013

INSTITUTIONAL CONTROL IMPLEMENTATION AND ASSURANCE PLAN

REVISION 1

BURNHAM CANAL SUPERFUND ALTERNATIVE SITE MILWAUKEE, MILWAUKEE COUNTY, WISCONSIN

EPA ID: WIN000510222

NRT Project No. 2117

Prepared For:

Miller Compressing Company 1640 West Bruce Street

Milwaukee, Wisconsin 53204

Prepared By:

Natural Resource Technology, Inc. 234 W. Florida Street, Fifth Floor


July 12, 2013

_____________________________ ________________________________ Ryan J. Baeten, PE Richard G. Fox Environmental Engineer Principal Scientist

Environmental consultants

234 W. Florida Street, Fifth Floor


(P) 414.837.3607

(F) 414.837.3608

WWW.NATURALRT.COM

2117 ICIAP Burnham Canal Rev 1 130712 i

TABLE OF CONTENTS

1 INTRODUCTION AND SITE DESCRIPTION ......................................................................................... 1 1.1 Purpose and Scope ...................................................................................................................... 1 1.2 Site Description ............................................................................................................................ 1

2 KEY ELEMENTS FOR INSTITUTIONAL CONTROLS .......................................................................... 3 2.1 Institutional Control Elements during the Remedial Action .......................................................... 3 2.2 Institutional Control Elements following the Remedial Action ...................................................... 4

2.2.1 GIS Registry ................................................................................................................... 4 2.2.2 Subaqueous Sediment Cap in Burnham Canal ............................................................. 5 2.2.3 Paved and Unpaved Upland Areas ............................................................................... 5

3 INSTITUTIONAL CONTROL MAINTENANCE ELEMENTS .................................................................. 6 3.1 Paved and Unpaved Area Institutional Control Maintenance ...................................................... 6 3.2 Subaqueous Sediment Cap Institutional Control Maintenance ................................................... 7

4 INSTITUTIONAL CONTROL ENFORCEMENT ..................................................................................... 8 5 INSTITUTIONAL CONTROL MODIFICATION AND TERMINATION .................................................... 9 6 REFERENCES ...................................................................................................................................... 10

FIGURES

Figure 1 Site Layout and Vicinity Figure 2 Burnham Canal Zoning

Institutional Control Implementation and Assurance Plan Revision 1

July 12, 2013 1-Introduction and Site Description

Page 1 of 10

2117 ICIAP Burnham Canal Rev 1 130712

1 INTRODUCTION AND SITE DESCRIPTION

This document contains the Institutional Control Implementation and Assurance Plan (ICIAP) prepared on

behalf of Miller Compressing Company (Miller) for the remedial action (RA) to be performed at the

Burnham Canal Site (Site) in the Menomonee Valley, Milwaukee, Wisconsin (Figure 1). This ICIAP was

prepared pursuant to the Administrative Settlement Agreement and Order on Consent (AOC) for

Remedial Design (RD) dated June 5, 2012 for the Site as outlined in the Statement of Work (SOW).

The Burnham Canal was historically a federally authorized navigation channel dredged and maintained to

a depth of 21 feet below Lake Michigan Low Water Datum (556.5 feet IGLD 85 or 557.36 feet NVGD 29)

by the United States Army Corps of Engineers (USACE). The Canal was dredged regularly while it was

maintained by the USACE. In the mid-1980s, as industrial activities decreased in the Menomonee Valley,

dredging became less frequent. During this period, the west portion of the channel (from the 11th Street

Bridge to the west) was designated a non-navigable waterway for federal purposes (1986), allowing the

current 11th Street Bridge to be built, effectively blocking ship traffic from moving upstream. East of the

11th Street Bridge, the Canal remains a federally authorized navigation channel with no dredging taking

place since the fall of 1987. Both the eastern and western portions remain navigable waters for state

purposes.

1.1 Purpose and Scope

The purpose of this ICIAP is to address implementation and maintenance of land use limitations over

areas of the site with contamination that remains above cleanup standards (CS). Figure 1 shows the

three areas where residual contaminants remain after the remedy. These include the Canal, the Paved

Area, and the Unpaved Area.

1.2 Site Description

The Site includes the Canal proper from the West Bank to the 11th Street Bridge along with a small

upland portion on the west end. The upland portion of the Site is on Miller property. Burnham Canal is an

urban, terminal canal in the Milwaukee River system in an area that has been and continues to be

industrial. The Record of Decision (ROD) includes (i) excavation of near-shore areas followed by

installation of a cap; (ii) excavation of approximately 530 cubic yards of soil and sediment from the west

end of the Canal; and (iii) placement of a Subaqueous Sediment Cap (SSC) over the west end of the


July 12, 2013 1-Introduction and Site Description

Page 2 of 10


Canal up to the 11th Street Bridge. Both the near shore and the Canal portions of the remedy will leave

contamination in place above unrestricted use and unrestricted exposure (UU/UE) levels, necessitating

the need for appropriate Institutional Controls (ICs).


July 12, 2013 2-Key Elements for Institutional Controls

Page 3 of 10


2 KEY ELEMENTS FOR INSTITUTIONAL CONTROLS

The SOW to the AOC cites that institutional controls will include zoning restrictions, deed restrictions, and

the use of fences and signs, as appropriate, to preserve the integrity of the remedy. ICs will be required

during construction of the remedial action and after the remedial action is complete. The ROD’s

description of the selected soil remedy for the paved area indicates that “ICs will be implemented to

ensure that the land is restricted to industrial or commercial use and the existing cover remains in place”.

The ROD’s description of the selected sediment remedy indicates that “ICs will be implemented to ensure

that the sand cover remains in place and is not disturbed”.

The State of Wisconsin has elected not to adopt the Uniform Environmental Covenants Act (UECA). This

decision was based on the recommendations to the Department of Natural Resources by an expert

advisory committee. Consistent with the Committee’s recommendation, the state adopted 292.12,

Wis. Stats. as its mechanism for implementing ICs. This statute is uniformly applied throughout the state

and recognized as an effective IC by the Agency at other sites. Example sites where Section 292.12,

Wis. Stats. was applied include Stevens Point MGP and Campmarina MGP, both Superfund Alternatives

sites managed by EPA Region V. GIS based restrictions that meet the intent of the ROD will be placed on

the property.

2.1 Institutional Control Elements during the Remedial Action

Remedial action (RA) construction activities will require ICs to protect the public. Canal RA will include

removal of approximately 350 cubic yards of sediment from the west end of the Canal and applying a

SSC. Upland activities will include excavation of approximately 180 cubic yards soil and installation of a

granular soil cap protected with riprap. Material removed from the Canal will be handled on an upland

stabilization pad or stabilized within a barge prior to disposal at a landfill.

IC used during the RA include fencing to limit access to the upland areas, signs both around the upland

area and associated with the Canal, buoys that indicate on-water work, easements and notification to

property owners adjacent to the Canal, and notification to the US Coast Guard of on-water work.



Page 4 of 10


2.2 Institutional Control Elements following the Remedial Action

After completion of the RA the following IC elements are anticipated:

■ Restrictions limiting use to non-residential, using the Wisconsin GIS Registry

■ Inspection and maintenance of the Canal SSC

■ Inspection and maintenance of the paved, unpaved, and upland riprap areas

■ Site control for the upland areas using fencing and controlled entry points

2.2.1 GIS Registry

WDNR’s GIS Registry will be the primary mechanism for restricting land use and preventing disturbance

of the upland caps. Section 292.12 is the statutory provision that incorporates the GIS based

requirements (known in Wisconsin as "continuing obligations”). Additional information on continuing

obligations and the Wisconsin approach to ICs is further explained in Wisconsin Department of

Natural Resources publication -- PUB-RR-819 August 2012

(http://dnr.wi.gov/files/PDF/pubs/rr/RR819.pdf). As noted above, the GIS based approach resulted from

the recommendation of an expert study committee commissioned by the Department to

review alternatives for improving institutional controls. That expert panel rejected the UECA approach

because of its numerous limitations, implementation issues, and the lack of transparency of the UECA

method which relies on the property deed system. The GIS based approach is transparent to the public

and is accessible without delays and costs inherent in the UECA approach. Thus, the Department agreed

with the expert panel and concluded that the GIS method is a more effective and transparent method of

implementing ICs and as such provides greater environmental protection. As of June 4, 2006, the GIS

based approach became effective in Wisconsin and use of deed restrictions ceased.

Requirements, limitations, or conditions relating to a RA listed in the Wisconsin GIS database, maintained

under Section 292.12(3), are required to be met by all property owners under Wisconsin law. More

specifically, Section 292.12(5) makes these requirements, limitations, or conditions a specific obligation

that must be complied with by the property owner. A violation of Section 292.12 is enforceable by the

State of Wisconsin under Sections 292.93 and 292.99.

Under Section 292.12(5), any person who owns property that is listed on the GIS Registry “shall comply

with the requirements... without regard to when the person obtained or occupied the property.” Violations

of this provision are subject to penalties of up to $5,000 per day, each day a separate violation. See

292.99(1), Wis. Stats.

http://dnr.wi.gov/files/PDF/pubs/rr/RR819.pdf



Page 5 of 10


Appropriate notice letters will be sent to the affected property owners consistent with the procedures in

the soon to be promulgated final revisions to Ch. NR 700, Wisconsin Administrative Code. The GIS

restrictions will work in conjunction with the Ch.30 requirements to protect the cap. Under Ch.30, a permit

is required for any work/activities that would disturb the bed of the Canal.

2.2.2 Subaqueous Sediment Cap in Burnham Canal

Navigation into the western end of the Canal is limited to small vessels that are able to pass under the

low clearance afforded by the 11th Street fixed bridge. Any wake from such a vessel will be small and will

not cause a disturbance of the cap. In addition, any anchoring, if it occurs at all, will be limited.

The GIS restrictions in 292.12 include sediment, as it applies to "property" which in Wisconsin law applies

to the land under the water and especially in Burnham Canal as it is an artificial body of water. WDNR

recognizes that the term property applies to the land under the water and includes sediment.

Chapter 30.12 prohibits the placement of any material or any structure on the bed of a navigable

waterway without a permit. This provision prevents an owner from disturbing the cap by placing any

material or other items on the cap. Chapter 30.20 also requires a permit to remove any material from the

bed of any waterbody.

2.2.3 Paved and Unpaved Upland Areas

The paved and unpaved areas will be subject to periodic monitoring and inspection as described in the

Cap Operations Monitoring Maintenance Plan (COMMP).

Access to the upland will also be controlled. The site is active and Miller currently controls the perimeter

with fencing and access through gates. In addition, appropriate GIS restrictions will be placed, limiting the

use of the property.

Figure 2 shows the zoning around Burnham Canal.


July 12, 2013 3-Institutional Control Maintenance Elements

Page 6 of 10


3 INSTITUTIONAL CONTROL MAINTENANCE ELEMENTS

This section describes Miller Compressing’s responsibility for maintenance required to ensure that the ICs

remain as long as there are residuals above UU/UE on site. Long-term monitoring and maintenance is

required for the three caps that make up the Site. Long-term monitoring of the Paved Area, the Unpaved

Area, and the SSC is described in the COMMP. The GIS Registry is the main proprietary IC.

3.1 Paved and Unpaved Area Institutional Control Maintenance

Monitoring of the Paved Area will commence after completion of the RA construction activities per the

COMMP and in accordance with the existing Cap Maintenance and Hard Surfacing Plan approved by the

WDNR on September 1, 2009 (see COMMP for details). This will serve as the Soil Maintenance Plan

(SMP) that is referenced in the SOW of the AOC.

Monitoring of the Unpaved Area will commence after completion of RA construction will be performed

during the scheduled monitoring events for the SSC as described in the COMMP. The Paved Area

affected by the RA meets the requirements of the Cap Maintenance and Hard Surfacing Plan, and it will

be included in the annual inspection and maintenance activities. Unpaved area reviews will be performed

during the scheduled monitoring events for the Subaqueous Sediment Cap as described in COMMP.

The two IC elements for the Paved and Unpaved Areas are site control and land use restrictions. Site

access and control will be maintained, as Miller is an active facility. The Miller property is governed under

a Planned District Development agreement entered into with the City of Milwaukee. Land use is controlled

under this agreement. Currently, the property is approved to be used as a scrap facility. If significant

changes occur to the use of the property, the City must agree to the modification before the change can

go forward. The City of Milwaukee zoning ordinance is available

online: http://city.milwaukee.gov/ImageLibrary/Groups/ccClerk/Ordinances/Volume-2/CH295-sub9.pdf.

However, in the event that Miller is no longer active at the facility, the fencing and site restrictions will

remain until the ICs are terminated.

The GIS Registry is maintained by the state so maintenance is not required for this IC.

http://city.milwaukee.gov/ImageLibrary/Groups/ccClerk/Ordinances/Volume-2/CH295-sub9.pdf


July 12, 2013 3-Institutional Control Maintenance Elements

Page 7 of 10


3.2 Subaqueous Sediment Cap Institutional Control Maintenance

Post-construction monitoring events will be performed by pairing a bathymetric survey with core samples,

providing an overall assessment of the SSC and CSO apron integrity per the COMMP. In addition, there

will be an “initial storm event monitoring cycle” after the first 25 year, 24-hour storm event. These

monitoring events are to ensure the SSC remains in place,


July 12, 2013 4-Institutional Control Enforcement

Page 8 of 10


4 INSTITUTIONAL CONTROL ENFORCEMENT

The GIS Registry IC element will be under the control of the State of Wisconsin. Further enforcement of

IC elements is not anticipated by authorities.


July 12, 2013 5-Institutional Control Modification and Termination

Page 9 of 10


5 INSTITUTIONAL CONTROL MODIFICATION AND TERMINATION

ICs will maintained until it can be shown that UU/UE conditions are met or if there is a condition where the

caps are filled in to the extent that monitoring is not practical. Presently there is an agreement with

Milwaukee Metropolitan Sewerage District (MMSD) where the west end of the Burnham Canal will be

converted into a wetland. When this occurs Miller will petition the United States Environmental Protection

Agency (USEPA) for termination of the Canal ICs.

Upland ICs will be monitored as part of Miller’s regular operations.


July 12, 2013 6-References Page 10 of 10


6 REFERENCES

Natural Resource Technology, Inc. DRAFT - July 19, 2013. Cap Operations, Maintenance, and Monitoring Plan (COMMP) Revision 1, Burnham Canal Site, Milwaukee, Wisconsin.

US Environmental Protection Agency, June 2012, Administrative Settlement Agreement and Order on Consent for Remedial Design, CERCLA Docket V-W-12-C-004.

US Environmental Protection Agency, December 2012. Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites. OSWER 9355.0-89; EPA-540-R-09-001.

US Environmental Protection Agency, December 2012. Institutional Controls: A Guide to Preparing Institutional Control Implementation and Assurance Plans at Contaminated Sites. OSWER 9200.0-77; EPA-540-R-09-002.

FIGURES

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ZoningIndustrial - Mixed (IM)

Planned Development (PD)Industrial - Heavy (IH)

USEPA Remedial Project Manager (2117) Minnesota Pollution … · 2019. 7. 15. · Leah Evis uly 12,...

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Transcript of USEPA Remedial Project Manager (2117) Minnesota Pollution … · 2019. 7. 15. · Leah Evis uly 12,...