Chapter NR 756

Chapter NR 756

FINANCIAL RESPONSIBILITY AT CONTAMINATED SEDIMENT SITES WITH
ENGINEERING CONTROLS

NR 756.01   Purpose.

NR 756.02   Applicability.

NR 756.03   Definitions.

NR 756.04   Plan and compliance schedule; financial responsibility; fees.

NR 756.05   Responsibility at contaminated sediment sites; access.

NR 756.06   Methods of providing proof of financial responsibility.

NR 756.07   Cost estimates.

NR 756.08   Calculating the amount of the proof of financial responsibility.

NR 756.09   Changing methods of proof of financial responsibility.

NR 756.10   Adjustment of financial responsibility.

NR 756.11   Access and default.

NR 756.12   Authorization to release funds.

NR 756.13   Bankruptcy or receivership notification.

NR 756.14   Compliance.

NR 756.01 NR 756.01 Purpose. The purpose of this chapter is to establish planning, compliance, and financial responsibility requirements for sites or facilities with contaminated sediment that rely on an engineering control to protect public health, safety, welfare, and the environment from the contaminated sediment. This chapter is adopted under s. 227.11 (2), Stats., and ch. 292, Stats.

NR 756.01 History History: EmR2032: emerg. cr., eff. 9-8-20; CR 20-038: cr. Register September 2021 No. 789, eff. 10-1-21; correction made under s. 35.17, Stats., Register September 2021 No. 789.

NR 756.02 NR 756.02 Applicability. Except as otherwise provided, this chapter applies to all sites or facilities where a person who is required to take action under ch. 292, Stats., with respect to contaminated sediment, takes an interim or remedial action that includes the use of an engineering control to address the contaminated sediment.

NR 756.02 History History: EmR2032: emerg. cr., eff. 9-8-20; CR 20-038: cr. Register September 2021 No. 789, eff. 10-1-21.

NR 756.03 NR 756.03 Definitions. In this chapter:

NR 756.03(1) (1) “Contaminated sediment engineering control” means an engineering control used to address contaminated sediment.

NR 756.03(2) (2) “Event” means an occurrence that may affect the completion of the goals established in the plan and compliance schedule that are induced by either weather, or the combination of human activity and weather, including significant flood events, increased flow rates, anthropogenic induced scour, an increase in event frequency, or other events having a deleterious effect on the protectiveness of the contaminated sediment remedy.

NR 756.03(3) (3) “Person required to submit proof” means a person that is required to submit proof of financial responsibility under s. NR 756.04 (1) (d), including a person that has assumed responsibility under s. 292.12 (5m) (am), Stats.

NR 756.03(4) (4) “Proof period” means the amount of time for which proof of responsibility requirements are applicable.

NR 756.03(5) (5) “Proof method” means a mechanism for providing proof of financial responsibility under s. NR 756.06.

NR 756.03(6) (6) “Third-party action” means activities that may affect the completion of the goals established in a plan and compliance schedule or that have a deleterious effect on the protectiveness of the contaminated sediment remedy that are taken by persons other than the person required to submit a plan and compliance schedule or proof of responsibility under this chapter.

NR 756.03 History History: EmR2032: emerg. cr., eff. 9-8-20; CR 20-038: cr. Register September 2021 No. 789, eff. 10-1-21; correction in (3) made under s. 13.92 (4) (b) 7., Stats., Register September 2021 No. 789.

NR 756.04 NR 756.04 Plan and compliance schedule; financial responsibility; fees.

NR 756.04(1) (1) General. As a condition of approving an interim action, a remedial action, or of granting case closure, the department may require a person who is required to take action under ch. 292, Stats., with respect to contaminated sediment, and who takes action that includes the use of a contaminated sediment engineering control, to do any of the following:

NR 756.04(1)(a) (a) Maintain any contaminated sediment engineering controls on the site or facility.

NR 756.04(1)(b) (b) Investigate the extent of residual contamination and perform any necessary remedial action if a structural impediment is removed that had prevented a complete investigation or remedial action at the site.

NR 756.04(1)(c) (c) Submit a plan and compliance schedule for satisfying the requirements under pars. (a) and (b) to the department for approval.

NR 756.04(1)(d) (d) Submit proof of financial responsibility sufficient to pay the costs of complying with the plan and compliance schedule under par. (c) to the department for approval.

NR 756.04(2) (2) Plan and compliance schedule and proof of financial responsibility.

NR 756.04(2)(a) (a) Requirements; plan and compliance schedule. The responsible party shall provide to the department a design report meeting the requirements under s. NR 724.09, along with a plan and compliance schedule that identifies the scheduled actions that will lead to the completion of any applicable requirements under sub. (1) (a) and (b) for the purposes of meeting the requirements under ch. 292, Stats. Unless otherwise directed by the department, a person required to submit a plan and compliance schedule shall include all of the following in the plan and compliance schedule:

NR 756.04(2)(a)1. 1. Scheduled actions that will be taken to attain the goals established under sub. (1) (a) and (b), and dates for completion of these actions. These actions may include items required under ss. NR 724.13, 724.15, and 724.17, as applicable, and any other actions directed by the department in writing. Verification of sufficient legal access to conduct all scheduled actions shall be included.

NR 756.04(2)(a)2. 2. An engineering analysis certified by a licensed professional engineer, as defined under s. NR 712.03. The analysis shall include the duration and ongoing efficacy of any engineering controls or structural impediments and assessment of the vulnerability of any engineering controls or structural impediments to any events or third-party actions that may occur and affect completion of the goals established in the plan and compliance schedule.

NR 756.04(2)(a)3. 3. Inspection and reporting criteria that include an inspection schedule. The inspection schedule shall require an inspection and a report at least every 5 years. The inspection report shall provide an engineering analysis of the current conditions of the engineering control or structural impediment with respect to ongoing efficacy, vulnerabilities, events or actions identified under subd. 2. The inspection report shall be certified by a licensed professional engineer, as defined under s. NR 712.03. Report conclusions shall include identification of issues, recommendations and follow-up actions, and a determination of whether the remedy is protective of human health and the environment.

NR 756.04(2)(a)4. 4. Any access agreements needed to secure legal access for the department to the enter property to determine compliance with this chapter and any plan and compliance schedule required under this chapter.

NR 756.04(2)(b) (b) Requirements; financial responsibility. Unless otherwise directed by the department, a person required to submit proof, as required under this chapter, shall submit proof for all of the following:

NR 756.04(2)(b)1. 1. The costs of planned engineering control monitoring, maintenance, inspections, and repair for each year of the proof period.

NR 756.04(2)(b)2. 2. The costs of any additional engineering control monitoring, maintenance, inspections, and repair that may be needed following any events or third-party actions that may occur during the proof period, including investigation and remediation following a failed engineering control.

NR 756.04(2)(b)3. 3. The costs of inspection, investigation of the extent of residual contamination, and the performance of any necessary response actions following the removal of a structural impediment that had prevented a complete investigation or remedial action at the site at the time of the approval of the plan.

NR 756.04(2)(b)4. 4. The costs of any additional investigation and remediation necessary if the building or other structural impediment is removed pursuant to any events or third-party actions that may occur during the proof period.

NR 756.04(3) (3) Length of requirements.

NR 756.04(3)(a) (a) Proof period. Except as otherwise approved by the department, a person required to submit proof shall maintain proof of financial responsibility for the proof period for each applicable financial responsibility requirement under sub. (2) (b).

NR 756.04(3)(b) (b) Establishing the initial proof period. A person that is required to submit a plan and compliance schedule and proof of financial responsibility under this chapter shall submit to the department, as part of the plan and compliance schedule, a proposed initial proof period for each applicable financial responsibility requirement under sub. (2) (b). The proposed initial proof period is subject to approval by the department as part of the plan and compliance schedule and is subject to extension under par. (c).

NR 756.04(3)(c) (c) Extension of plan and compliance schedule and proof period. The department may, in writing, extend the plan and compliance schedule and the proof period for any applicable financial responsibility requirement until the department determines that the actions under sub. (1) (a) and (b) are no longer applicable and necessary to protect human health and the environment.

NR 756.04 Note Note: The actions under s. NR 756.04 (1) (a) and (b) are no longer applicable and necessary if the engineering control is no longer needed and the structural impediment is removed, and any remaining contamination is investigated and remediated.

NR 756.04 Note Note: Under s. NR 756.07 (2), a person that is required to maintain proof of financial responsibility is required to seek review of the length of the proof period from the department prior to submitting an adjustment to the cost estimate. Under s. NR 756.12 (3), a person that is required to maintain proof of financial responsibility is required to seek review of the length of the proof period from the department prior to submitting an application for a reduction in the amount of required financial responsibility.

NR 756.04(4) (4) Submittal. The department may require a person subject to requirements under sub. (1) to submit the plan and compliance schedule and proof of financial responsibility simultaneously with the plans, reports, and specifications required under ss. NR 708.15, 708.17, and 722.13, and chs. NR 724 and 726.

NR 756.04(5) (5) Department response. When reviewing a plan for approval, the department may elect to do any of the following in regard to the entire plan or a part of the plan:

NR 756.04(5)(a) (a) Deny a request for approval.

NR 756.04(5)(b) (b) Request that additional information be supplied as part of the plan and compliance schedule.

NR 756.04(5)(c) (c) Require adjustments to actions, timeframes, and analyses presented in the plan and compliance schedule.

NR 756.04(5)(d) (d) Approve the plan and compliance schedule.