Current through Register 1531, September 27, 2024
(1)
General.
(a) No
dredging shall be permitted unless appropriate and practicable steps have been
taken which will first avoid, and if avoidance is not possible then minimize,
or if neither avoidance or minimization are possible, then mitigate, potential
adverse impacts to land under water or ocean, intertidal zone and special
aquatic sites. No dredging shall be permitted if there is a practicable
alternative that would have less impact on the aquatic ecosystem. However, no
such dredging may be permitted which will have any adverse effect on specified
habitat sites of Rare Species unless the work is subject to a Conservation and
Management Permit or Determination of No Take issued by the Division of
Fisheries and Wildlife. An applicant shall be presumed to be taking appropriate
and practicable steps to avoid and minimize potential adverse impacts to the
aquatic ecosystem as a result of dredging proposed in connection with the
construction, repair, replacement or expansion of a stream crossing provided
that:
1.The applicant demonstrates to the
satisfaction of the Department that he or she has developed and will implement
an operation and maintenance plan to ensure that the crossing will function as
designed;
2.If the project includes
the construction of a new non-tidal crossing, the applicant demonstrates to the
satisfaction of the Department that the crossing complies with the
Massachusetts Stream Crossing Standards;
3.If the project includes the construction of
a new tidal crossing, the applicant demonstrates to the satisfaction of the
Department that the project is designed in a manner that does not restrict
tidal flow over the full natural tidal range;
4.If the project includes work on an existing
non-tidal crossing, the applicant demonstrates to the satisfaction of the
Department that the crossing complies with the Massachusetts Stream Crossing
Standards to the maximum extent practicable; and
5.If the project includes work on an existing
tidal crossing that restricts tidal flow, the applicant demonstrates to the
satisfaction of the Department that tidal restriction will be eliminated to the
maximum extent practicable.
This presumption may be overcome by credible evidence from a
competent source that compliance with all applicable criteria set forth in 314
CMR 9.07(1)(a) is not practicable.
(b) All applications, except for maintenance
projects, shall include a comprehensive analysis of practicable alternatives as
defined in 314 CMR 9.07(1)(a). The scope of alternatives to be considered shall
be commensurate with the scale and purpose of the proposed activity, the
impacts of the proposed activity, and the classification, designation and
existing uses of the affected wetlands and waters in the Surface Water Quality
Standards at
314 CMR 4.00: Massachusetts
Surface Water Quality Standards. The scope of the alternatives analysis for
dredging in association with an Ecological Restoration Project shall include
the following:
1. ny time of year
restrictions or other conditions recommended by the Division of Marine
Fisheries for coastal waters and the Division of Fisheries and Wildlife for
inland waters;
2. the condition of
existing waters and wetlands proposed for restoration including evidence of the
extent and severity of the impairment(s) that reduce the capacity of waters and
wetlands to sustain their designated uses;
3. the magnitude and significance of the
benefits of the Ecological Restoration Project in improving the capacity of the
affected waters and wetlands to protect and sustain their designated uses;
and
4. the magnitude and
significance of the impacts of the Ecological Restoration Project on waters and
wetlands that may be affected by the Ecological Restoration Project and the
extent to which the applicant will:
a. avoid
adverse impacts to wetlands and waters that can be avoided without impeding the
achievement of the project's ecological restoration goals;
b. minimize adverse impacts to wetlands and
waters that are necessary to the achievement of the project's ecological
restoration goals; and
c. utilize
best management practices such as erosion and siltation controls and proper
construction sequencing to avoid and minimize adverse construction impacts to
wetlands and waters and their designated uses
(c) Dredging and dredged material management
shall be conducted in a manner that ensures the protection of human health,
public safety, public welfare and the environment. Dredging for an Ecological
Restoration Project shall be conducted in a manner that will not reduce or
alter the habitat functions of the affected waters and wetlands of the
Commonwealth.
(d) Applications
submitted to the Department shall meet the criteria and performance standards
of 314 CMR 9.07. If the project submitted by the applicant does not meet a
particular provision of 314 CMR 9.07 and criteria of
314 CMR 4.00: Massachusetts
Surface Water Quality Standards, the applicant shall demonstrate to the
Department's satisfaction that the project will provide an equivalent level of
environmental protection.
(e)
Dredged material shall not be disposed if a feasible alternative exists that
involves the reuse, recycling, or contaminant destruction and/or
detoxification. An evaluation of whether such an alternative is feasible shall
consider:
1.the volume and physical
characteristics of the dredged material;
2.the levels of oil and/or hazardous
materials present within the dredged material;
3.the relative public health and
environmental impacts of management alternatives; and
4.the relative costs of management
alternatives.
(f) The
Department may consider any additional information including but not limited to
that submitted under MEPA or NEPA on impacts from the dredging activity,
management of the dredged material, the alternatives available for reuse or
disposal techniques, alternative sites for the various management activities,
or information related to other Department programs.
(g) Dredged material management activities or
facilities subject to the 401 Water Quality Certification, shall comply with
the provisions of
314 CMR 9.00 and the
conditions of the 401 Water Quality Certification. The Certification does not
relieve the proponent of the obligation to comply with all other applicable
federal, state and local statutes and regulations including without limitation
the antidegradation provisions of
314 CMR
4.04(3): Protection of
Outstanding Resource Waters.
(h)
Dredged material, including sediment, placed on or in the land at an upland
location is subject to the release notification requirements and thresholds of
310
CMR 40.0300: Notification of Releases and
Threats of Release of Oil and Hazardous Materials; Identification and Listing
of Oil and Hazardous Materials and 40.1600: Massachusetts Oil and Hazardous
Material List for soil, unless such placement is in accordance with the
provisions of
310
CMR 40.0317(10) and 314 CMR
9.07(4), (6), (9), (10), or (11).
(i) No dredging is permitted for the
impoundment or detention of stormwater for purposes of controlling
sedimentation or other pollutant attenuation. Dredging may be permitted to
manage stormwater for flood control purposes only where there is no practicable
alternative and provided that best management practices are implemented to
prevent sedimentation or other pollution. No dredging is permitted for the
impoundment or detention of stormwater in Outstanding Resource
Waters.
(j) No dredging shall be
permitted in the rare circumstances where the activity meets the criteria for
evaluation but will result in substantial adverse impacts to the physical,
chemical, or biological integrity of waters of the Commonwealth.
(k) Except as otherwise provided in 314 CMR
9.07(1)(k)1. through 5., no dredging shall be permitted in Outstanding Resource
Waters. Dredging may be permitted in Outstanding Resource Waters, in
association with the activities specified in 314 CMR 9.07(1)(k)1. through 5.
provided that the Department determines that the dredging and dredged materials
management may be permitted in accordance with 314 CMR 9.07(1)(a) through (j).
1.Projects conducted or approved by public or
private water suppliers in the performance of their responsibilities and duties
in compliance with applicable laws to protect the quality of the water in the
watersheds, or to maintain, operate and improve the waterworks
system;
2.Ecological Restoration
Projects;
3.Maintenance, repair,
replacement or reconstruction but not substantial enlargement of existing and
lawfully located structures or facilities including buildings, roads, railways,
utilities and coastal engineering structures;
4.Maintenance dredging necessary to support
or enhance existing water-dependent uses; and
5.Improvement dredging necessary to support
or enhance the enlargement of structures or facilities for water-dependent
uses, but only in the following limited circumstances:
a.in an Outstanding Resource Water that is
designated for purposes other than public water supply; or
b.in an Outstanding Resource Water located
within an Area of Critical Environmental Concern if there is a resource
management plan for the ACEC that has been adopted by the municipality and
approved by the Secretary, and the Department determines that the dredging is
consistent with that plan.
(2)
Sampling and Analysis
Requirements. The applicant shall submit the results of all
relevant sampling with the application, unless an alternative schedule is
specifically authorized by the Department in writing. As part of sampling and
analysis, the applicant shall perform a "due diligence" review to determine the
potential for the sediment proposed to be dredged to have concentrations of oil
or hazardous materials, as defined in 310 CMR 40.0000: Massachusetts
Contingency Plan. Such a review may include, but is not limited to, an analysis
of records of the local Board of Health, Fire Department, and/or Department of
Public Works, the Department's Bureau of Waste Site Cleanup, knowledge of
historic land uses, information on prior dredging projects and discharges of
pollutants in the project area watershed. Sampling that was conducted in
accordance with the MCP as a part of site assessment activities or a remedial
action shall be supplemented as necessary to comply with 314 CMR 9.07.
Supplemental sampling, if necessary, shall be submitted with the application as
results or as a sampling plan.
Applicants for dredging projects proposing unconfined open
water disposal shall comply with the sampling, testing, and evaluation
requirements and procedures of the U.S. Army Corps of Engineers and U.S.
Environmental Protection Agency. A copy of the Determination of Suitability for
unconfined disposal shall be provided to the Department.
Unless a project is specifically exempted by the Department
from the requirement for chemical analyses, sampling and analysis for upland
reuse or disposal of dredged material, as set out in 314 CMR 9.07(2)(a), shall
be carried out as follows:
(a) No
chemical testing shall be required if the sediment to be dredged contains less
than 10% by weight of particles passing the No. 200 U.S. Standard Series
Testing Sieve (nominal opening 0.0029 inches), and if the required "due
diligence" review demonstrates, to the Department's satisfaction, that the area
is unlikely to contain anthropogenic concentrations of oil or hazardous
materials.
(b) In all other
instances, chemical and physical testing shall be conducted and the information
provided in writing to the Department. When characterizing dredged material,
the applicant shall:
1.Consider available
analytical information from prior dredging projects conducted at, or locations
proximal to, the area proposed to be dredged.
2.Select sampling locations in a manner that
ensures that representative information is obtained about the volume, potential
contamination, grain-size distribution and total organic carbon of the sediment
to be dredged.
3.Evaluate and
delineate areas of potentially elevated contamination, based on proximity to
outfalls, tributaries, industrial discharges or sources, boat-maintenance
activities or historical spills of oil or hazardous materials. In such areas,
samples shall not be composited but analyzed separately.
4.For projects up to 10,000 cubic yards, one
core for every 1000 cubic yards of dredged material shall be collected. Up to
three cores may be composited to create a single sample, provided:
a.The grain-size distribution and likelihood
of contamination are similar based on depositional characteristics, spill
history, and location of point source discharges;
b.Cores are composited from the same reach;
and
c.Samples collected for
analysis of volatile compounds are obtained from an individual core and not
composited from multiple cores.
For all projects, a minimum of two representative samples shall
be characterized physically and chemically.
5.For projects over 10,000 cubic yards and
Ecological Restoration Projects involving over 100 cubic yards or dredging in
an Outstanding Resource Water, the applicant shall develop a project-specific
sampling and analysis plan, taking into account the likely requirement for the
alternative(s) being considered for management of the dredged materials. This
plan shall be submitted in draft form to the Department for review and comment
as part of the pre-application process.
6.At a minimum, sediment shall be analyzed
for the following parameters unless specifically exempted by the Department:
Parameter1
|
Reporting Limit mg/kg (dry weight) - unless otherwise
noted2
|
Asenic
|
0.5
|
Cadmium
|
0.1
|
Chromium
|
1.0
|
Copper
|
1.0
|
Lead
|
1.0
|
Mercury
|
0.02
|
Nickel
|
1.0
|
Zinc
|
1.0
|
Folycyclic Aromatic Hydrocarbons (PAHs)
|
0.02
|
Folychlorinated Biphenyls (PCBs)-by NOAA Summation of
Congeners
|
0.01
|
Extractable Petroleum Hydrocarbons
3
|
25
|
Volatile Organic Compounds
(VOC)4
|
0.1
|
Total Organic Carbon
|
0.1%
|
Percent Water
|
1.0%
|
Toxicity Characteristic Leaching
Procedure5
|
As applicable
|
Grain Size Distribution - wet sieve (ASTM
D422)
|
Sieve Nos. 4, 10, 40, 60, 200
|
1 The applicant shall use the
results of the due diligence review to determine whether additional parameters
should also be analyzed.
2 If one or more of the Reporting
Limits could not be met; the applicant shall include a discussion of the
reason(s) for the inability to achieve the reporting limit (e.g., matrix
interference.
3 Current method for the
determination of Extractable Petroleum Hydrocarbons (EPH) MADEP January
1998
4 Required for sediment to be reused
or disposed of in the upland environment unless the due diligence review
indicates that VOC contamination is unlikely to be present.
5 Required to be performed when
sediment is to be managed in the upland environment and if the total
concentrations of metals or organic compounds are equal to or greater than the
theoretical concentration at which TCLP criteria may be exceeded: As > 100
mg/kg, Cd > 20 mg/kg, Cr> 100 mg/kg, Pb> 100 mg/kg, Hg > 4
mg/kg.
7.The Department may
allow or require, at its discretion, analyses for additional parameters not
listed in 314 CMR 9.07(2)(b)6. when dredging is proposed to be performed in
areas where current or historic uses indicate that such contaminants are likely
to be present.
8.The chemical
analyses of sediment, included as part of an application for dredging, shall
have been performed within three years of the date of submission of the
application.
9.At the Department's
discretion, the project proponent for an aquatic disposal facility may be
required to perform a biological assessment of the dredged materials to
determine whether there is the potential for the inadvertent transfer of an
"invasive species" from the dredging area to the disposal
location.
(3)
Dredging Performance Standards. Dredging shall be
planned and conducted to minimize short-term, long-term, and cumulative impacts
on the aquatic ecosystem and to provide protection to human health.
(a) The resuspension of silt, clay, oil and
grease and other fine particulate matter shall be minimized to protect aquatic
life and other existing and designated uses of waters of the
Commonwealth.
(b) Improvement
dredging activities shall minimize and, to the maximum extent possible, avoid
affecting areas of ecological importance including but not limited to vegetated
wetlands, shellfish habitat, spawning habitat, Rare Species Habitat, salt
marsh, intertidal zone, riffles and pools, and vegetated shallows.
(c) Where feasible, a minimum of 25-feet
shall remain unaltered between the edge of vegetated wetlands, salt marsh or
vegetated shallows, and waterward edge of the top of the slope of the dredging
area.
(d) Dredging shall not be
undertaken during migration, spawning or juvenile development periods of
finfish, shellfish, crustaceans or merostomatans in locations where such
organisms may be affected, except as specifically approved by the Department.
Restricted time periods for dredging, or in-water sediment management, will be
established by the Department after consultation with Massachusetts Division of
Marine Fisheries or Division of Fisheries and Wildlife. Any applicant proposing
to dredge during the recommended restricted time period must demonstrate to the
Department's satisfaction that measures to minimize impacts (e.g., dredging in
the dry, the use of silt curtains, etc.) will be sufficient to avoid adverse
affects to the species of concern. The Department may consider use of a mixing
zone to achieve compliance with Surface Water Quality Standards. Any mixing
zone shall be as small as feasible, and site-specific conditions, including,
but not limited to depth, currents, and the presence of fisheries and other
resources, will determine the mixing zone for any specific project. Within the
mixing zone the minimum criteria for chronic toxicity may be exceeded, but the
minimum criteria for acute toxicity shall not be exceeded. All water quality
criteria apply at the boundary of the mixing zone. The Department may prohibit
use of a mixing zone as it deems necessary to provide a reasonable margin of
safety for critical uses of waters, e.g., public water supply intakes,
shellfish harvesting areas in Class SA and SB waters, wildlife sanctuaries,
Rare Species Habitat and/or in Areas of Critical Environmental Concern
(ACEC).
(e) In evaluating the
potential effects of suspension of contaminated sediment on aquatic organisms,
the Department may compare the bulk sediment chemistry with recognized
guideline values (e.g., Long et al. (1995), Ingersoll et al. (2000), etc.). The
Department reserves the right to request additional sampling and analyses to
evaluate the effects of suspension of contaminated sediment on aquatic
organisms and/or water quality.
(4)
Intermediate
Facilities. Placement of dredged material at an intermediate
facility shall be governed by the 401 Water Quality Certification under 314 CMR
9.07(4) unless waived in writing by the Department. The Department may impose
specific conditions to ensure that activities at these facilities are conducted
in compliance with 314 CMR 9.07(4):
(a)
Dredged material shall be placed in a secure manner to minimize exposure to
humans and the environment, and activities shall be carried out in a manner
that does not create a nuisance or a threat to public health or the
environment.
(b) All activities
shall minimize runoff and soil loss through erosion. Any runoff or erosion that
does occur shall be remediated and corrective action and/or additional controls
shall be immediately implemented to prevent future occurrences. If other
permits or approvals are required to conduct the remediation and/or corrective
action, then those must be obtained.
(c) Unless approved by the Department,
dredged material contaminated above RCS-1 criteria, as defined in
310 CMR
40.0933: Identification of Applicable Soil
Categories and 40.1600: Massachusetts Oil and Hazardous Material List, which is
stored for more than 24 hours at the site shall be placed in watertight
containers or entirely on a base composed of an impermeable material. The
dredged material shall be immediately covered with the same material or other
suitable material so as to minimize the infiltration of precipitation,
volatilization of contaminants, and erosion. Any cover material used shall be
properly secured and possess the necessary physical strength to resist tearing
by the wind. Any failure of materials or procedures used in the base layer or
cover layer shall be immediately repaired, replaced, or re-secured so as to
minimize precipitation infiltration, volatilization, and erosion or runoff of
the dredged material.
(d) An
Intermediate Facility shall not be located:
1.within a Current Drinking Water Source Area
or a Potential Drinking Water Source Area as defined in
310 CMR
40.0006: Terminology, Definitions and
Acronyms;
2.within a 500 foot
radius of a Private Water Supply Well as defined in
310 CMR
40.0006: Terminology, Definitions and
Acronyms;
3.less than 1/4 mile
upgradient of a surface drinking water supply as defined by groundwater flow or
surface water drainage;
4.less that
250 feet downgradient of a surface drinking water supply as defined by
groundwater flow or surface water drainage;
5.within 500 feet of a health care facility,
prison, elementary school, middle school or high school or children's
pre-school, licensed day care center, senior center or youth center, excluding
equipment storage or maintenance structures;
6.where traffic impacts from the facility
operation would constitute an unacceptable impact to the public, taking into
consideration the following factors:
a.traffic
congestion,
b.pedestrian and
vehicular safety,
c.road
configurations,
d.alternate
routes,
e.vehicle emissions,
and
f.other environmental impacts
related to traffic.
7.where it would have a permanent adverse
impact on Rare Species Habitat listed by the Natural Heritage and Endangered
Species Program of the Division of Fisheries and Wildlife, an Ecologically
Significant Natural Community as documented in writing by the Natural Heritage
and Endangered Species Program, the wildlife habitat of any state Wildlife
Management Area, or an ACEC;
8.in a
location where the anticipated emissions from facility operations would not
meet required state and federal air quality standards or criteria or the
Department determines that it would otherwise constitute an unacceptable risk
to the public health, safety or the environment, taking into consideration;
a.the concentration and dispersion of
emissions,
b.the number and
proximity of sensitive receptors, and
c.the attainment status of the
area.
(5)
Transportation.
(a) All dredged material, when transported
upon public roadways, shall have no free liquid as determined by the Paint
Filter Test or other suitably analogous methodology acceptable to the
Department and be covered to minimize fugitive dust (unless transported in
vehicles specifically designed to haul liquid materials).
(b) Truck tire and undercarriage washing (or
equally effective mitigation measures) shall be employed to minimize tracking
of sediment onto public roadways. Such activities shall be performed in a
manner that avoids siltation into wetland resources.
(c) Dredged material shall be transported
using a Dredged Material Tracking Form (DMTF) available from the Department.
The Dredged Material Tracking Form, or reproduction, shall accompany each
shipment of dredged material transported from the dredging site and shall be
retained by the entity to whom the 401 Certification is issued for a minimum of
five years from the date of transport. The Department reserves the right to
impose additional requirements on the transportation of dredged material if the
Department determines that such materials represent a hazard to health, safety,
public welfare or the environment. The DMTF shall contain the following
information:
1.the address or location of the
area dredged and the address of any Intermediate Facilities where the dredged
material was stockpiled, stored, treated and/or consolidated prior to
transport;
2.the name, address and
telephone number of the entity to whom the 401 Certification has been
issued;
3.the name and address of
the transporter;
4.the name and
address of the receiving facility or location;
5.the volume of dredged material that will be
shipped to the receiving facility;
6.the original dated signature of a Qualified
Environmental Professional attesting that the dredge material as characterized,
conforms with permitting and regulatory requirements for acceptance at the
receiving facility or location;
7.the original dated signature of an
authorized representative of the entity to whom the 401 Certification was
issued certifying the accuracy and completeness of the shipping
document;
8.upon completion of all
shipping activities, the original dated signature of a representative of the
receiving facility or location, attesting to the total volume or weight of
dredged material received by the facility or location; and
9.any other information determined necessary
by the Department.
(d)
Use of a Dredged Material Tracking Form shall not be required when the dredged
material requires shipment:
1.Using a
Hazardous Waste Manifest pursuant to 310 CMR 30.000: Hazardous Waste;
or
2.Using a Bill of Lading under
310 CMR
40.0030: Management Procedures for
Remediation Waste.
(e)
In the case where the dredged material is transported in whole, or in part, by
barge, a Barge Tracking Form (available from the Department) shall also be
required and shall be retained by the entity to which the 401 Certification is
issued for a minimum of five years.
(f) Any barge used shall be the best
reasonably available marine design and in good operating condition so that
minimal discharge of sediment or water occurs during transport to the
authorized disposal location(s). Deck barges shall not be used unless the barge
has been modified to provide for complete containment of the sediments and
written approval has been obtained from the Department.
(6)
Beach
Nourishment. All projects designed to nourish beach, dune or
near-shore areas of land under ocean, utilizing dredged-sediment as source
material, shall be carried out in accordance with the Best Management
Procedures for Beach or Dune Nourishment and any procedures developed by the
Massachusetts Office of Coastal Zone Management and in accordance with M.G.L.
c. 131, § 40 (the Wetland Protection Act) and relevant portions of
310 CMR
10.00: Wetlands Protection and M.G.L. c. 91 and
310 CMR
9.00: Waterways and M.G.L. c. 132A and
302 CMR
5.00: Ocean Sanctuaries. Right of public access shall
be provided for beach nourishment projects on private beaches where public
funds are utilized for the activities. Dredged material placed in accordance
with 314 CMR 9.07(6) shall not be a solid waste and is not subject to
310 CMR 16.00: Site
Assignment Regulations for Solid Waste Facilities and 19.000: Solid Waste
Management.
(7)
Unconfined Open Ocean Disposal. Applicants for
dredging projects proposing unconfined open water disposal at designated
disposal sites shall comply with sediment and water quality sampling,
biological testing, and evaluation according to the requirements and procedures
of the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency.
The Department may include specific conditions related to time-of-year disposal
restrictions to protect the Right Whale or other relevant requirements
consistent with the Massachusetts Clean Water Act or other state
statutes.
(8)
Confined
Disposal.
(a)
General.
1.Aquatic
disposal of dredged sediment that is unsuitable for open ocean disposal shall
include management techniques to isolate the sediment from the surrounding
environment thereby minimizing potential adverse impacts to the benthic and
pelagic communities. The principal methods to isolate the material are to cap
it with a layer of "clean" material (Confined Aquatic Disposal) or use of a
containment structure (Confined Disposal Facility). Capping may be required for
both interim and final controls.
2.In determining the acceptability of a site
for a confined disposal facility, the Department will consider all relevant
factors including, but not limited to: hydrology and hydrodynamics of the site,
existing sediment (physical and chemical quality) at and proximal to the site,
protection of marine and wetland resources, recreational activities and unique
site factors and conditions. No confined disposal facilities and/or confined
aquatic disposal cells shall be located in Special Aquatic Sites or Areas of
Critical Environmental Concern.
3.No confined disposal facilities and/or
confined aquatic disposal cells shall be permitted unless appropriate and
practicable steps have been taken which will first avoid, and if avoidance is
not possible then minimize, or if neither avoidance or minimization are
possible, then mitigate, potential adverse environmental impacts. No confined
disposal facilities or confined aquatic disposal cells shall be permitted if
there is a practicable alternative that would have less impact on the aquatic
ecosystem. An alternative is practicable if it is available and capable of
being implemented after taking into consideration; costs, existing technology
and logistics in light of overall project purposes, and is permittable under
existing federal and state statutes and regulation.
4.All applications proposing confined
disposal facilities and/or confined aquatic disposal cells shall include a
comprehensive analysis of practicable alternatives as defined in 314 CMR
9.07(1)(a). The scope of alternatives to be considered shall be commensurate
with the scale and purpose of the proposed activity, the impacts of the
proposed activity, and the classification, designation and existing uses of the
affected wetlands and waters in
314 CMR 4.00: Massachusetts
Surface Water Quality Standards.
5.The siting, operation and post-closure
maintenance of confined disposal facilities and/or confined aquatic disposal
cells shall be conducted in a manner that ensures the protection of human
health, public safety, public welfare and the environment.
(b)
Placement.
1.Sediment shall be placed into the facility
in a manner that minimizes the escape and release of sediment to the
environment. The Department may require water quality monitoring during
placement and/or disposal activities to demonstrate that the activities comply
with applicable water quality standards.
2.Sediment placement shall occur only during
specific periods of time authorized by the Department in writing to provide
maximum dilution but minimal dispersion and transport of fine contaminated
sediment during placement operations. If an alternative technology is approved
that allows the material to be placed directly in the disposal cell without
passing through the water column, disposal may occur at any time.
3.Adequate time shall be provided to allow
the sediment to properly consolidate prior to placement of the cap to minimize
the escape of sediment from confinement during cap placement. Unless
specifically approved by the Department in writing, capping of any cell shall
be completed within one month of the start of cap placement.
4.The applicant shall provide the Department
with a written schedule of activities related to initiation and completions of
the capping phase.
(c)
Confined Aquatic Disposal (CAD).
1.
Design Standards.
a.The applicant shall take vessel traffic
(e.g. passage of tugboats or deep draft vessels) into account during cell
filling to minimize entrainment of sediment from propeller-wash.
b.Unless specifically exempted by the
Department in writing or in regulations, the applicant shall use a water
quality model to assess compliance with water quality standards and to
determine if restrictions on volume or timing of disposal events are required
(e.g., tidal stage, tidal current, disposal volume, multiple disposal event
timing, and proximity in time to scheduled vessel passage).
c.If project sequencing allows, the most
contaminated material shall be placed at the bottom of cells to allow for the
greatest level of sequestering.
d.The disposal cell cap shall be constructed
and placed in a manner that minimizes disturbance of the dredged material in
the disposal cells and the Applicant shall provide the following:
i.Documentation of the placement of the
capping material including the amount and location of each load.
ii.Documentation of the paths of the disposal
vehicle to determine where the following load should be placed (if multiple
loads are required) to keep the cap thickness as even as possible until the
required thickness is achieved.
iii.Surveys of each capped cell to verify
that the required areal coverage and vertical thickness is achieved.
iv.Cap material shall be placed wet.
v.Tugs shall be used to move
deeper draft self-propelled vessels to minimize prop-wash effects.
vi.There shall be no mechanical disturbance
of the cap by a drag bar, clamshell bucket, barge spudding or other means,
unless approved by the Department.
vii. The applicant shall assure that at least
90% of the CAD surface area shall include a "clean layer" whose vertical
thickness contains at least 70% sand or other approved capping material. Layers
comprised of less than 70% sand will be considered a "zone of mixed material"
(interface layer) and will not be considered in the determination of capping
compliance.
2.
Monitoring.
a.If
subaqueous cells are utilized, bathymetric surveys shall be conducted prior to
cell excavation, after the cell is excavated and constructed, after the
disposal of dredged material, and after the cap is placed.
b.Baseline conditions of general water
quality, as well as specific contaminants determined to be in the dredged
material to be disposed of, shall be assessed prior to the start of any
dredging or dredged material placement activities.
c.Each disposal event shall be documented in
writing, including the date, time and source of dredged material; the time and
location of disposal (including high accuracy location coupled with orientation
of the disposal vessel); the equipment used to dredge and dispose of the
material; the weather and sea conditions; and personnel on duty. In addition,
an estimate of the volume of material disposed shall be provided. Detailed,
step-by-step requirements for filling cells shall be developed and
utilized.
d.The applicant shall
obtain cores from a statistically valid number of disposal cells one year and
five years after cells have been capped, selected according to a random
distribution among all cells, to evaluate the cap thickness and interface
layer, unless alternative times are specified by the Department, to determine
the long-term integrity and thickness of the cap material and overlying
sediment.
e.Recolonization of
benthic species on the surface of the cell shall be assessed against reference
site(s) one year after completion of the project, unless an alternative time is
specified by the Department. The results of the assessment shall be submitted
to the Department in writing within 30 days of it being
complete.
(d)
Confined Disposal Facilities (CDF).
1.
Design Standards.
a.The facility shall be designed and
constructed to allow for stormwater controls and material dewatering and the
applicant shall evaluate the need for leachate controls, including a liner
system.
i.Stormwater controls shall prevent
erosion, reduce the discharge of pollutants, and protect the physical integrity
of the facility. The controls shall be designed to prevent flow onto the active
portion of the facility and control the run-off from the active portion of the
facility for at least the water volume resulting from a 24hour and 25-year
storm. The Department may require evaluation of a different level storm event
due to the nature of the dredged material and/or potential discharge to
sensitive receptors (e.g., ORWs, ACECs).
ii.The operator shall provide sufficient
stormwater drainage controls and diversion structures to promote drainage from
the facility, minimize drainage onto the facility, and prevent ponding on or
adjacent to the CDF area. Stormwater drainage structures shall be designed,
constructed and maintained so as to ensure their integrity;
iii.In a situation where significant
settlement, ponding of water or erosion occurs during the operation, closure or
the post-closure period, the operator or owner shall immediately institute
corrective actions and mitigation. If other permits or approvals are required
to conduct the corrective action, then those must be obtained.
2.The operator shall
prevent the development of vermin, insects, dust, odors and other nuisance
conditions.
3.The operator of
facilities located in proximity to airports shall operate and maintain the
facility in a manner to ensure that the facility shall not pose a bird hazard
to aircraft.
4.The operator shall
provide sufficient fences or other barriers to prevent unauthorized access to
the facility.
(e) The
facility shall include a final cover system, which shall: minimize the
percolation of water through the final cover into the fill material, promote
proper drainage of precipitation, minimize erosion of the final cover,
facilitate the venting and control of gas (if applicable), ensure isolation of
the sediment from the environment, and accommodate settling and subsidence of
the facility so that the final cover system continues to operate as designed.
Unless authorized by the Department in writing, the final cover
system shall have a final top slope of not less than 5% and the final side
slopes no greater than three horizontal to one (3:1) vertical, and shall be
constructed:
1.so as to minimize
erosion of all layers of the final cover by using terraces or other appropriate
stormwater controls as set out in the Department Stormwater Management
Handbooks Volumes One and Two; and
2.so that the low permeability layer is
protected from the adverse affects of frost or freeze/thaw cycles;
and
3.to maintain slope
stability.
(f) The final
facility cap shall be designed and constructed: to remain impervious for the
expected life and post-closure period of the facility; have a minimum compacted
thickness of 18 inches; be compacted to minimize void spaces; to be capable of
supporting the weight imposed by the post-closure use without excessive
settling or causing or contributing to the failure of the low permeability
layer;and to be free of materials that, because of their physical, chemical or
biological characteristics, may cause or contribute to an increase in the
permeability of the low permeability layer or otherwise cause a failure of the
low permeability layer.
(g) An
operation and maintenance plan, subject to the Department's review and written
approval, shall be developed and implemented, including a narrative description
of operation and maintenance requirements or activities proposed to be
conducted during the life of the facility (including the post-closure period)
and a proposed schedule for regular inspections and maintenance of the
facility, including standard operating procedures.
(h) The owner or operator shall hire an
independent professional engineer, knowledgeable and experienced in matters of
containment structures, who shall oversee the installation and construction of
all components of the containment structures and certify in writing all design
and as-built plans for the facility.
(i)
Siting Criteria.
A CDF shall not be located:
1.within 500 feet
of an occupied residential dwelling, health care facility, prison, elementary
school, middle school or high school or children's pre-school, licensed day
care center, senior center or youth center, excluding equipment storage or
maintenance structures; unless the applicant shows a valid option to purchase
the business or facility within the restricted area, the exercise of which
shall be a condition of any Certification;
2.where traffic impacts from the facility
operation would constitute an unacceptable risk to the public, taking into
consideration the following factors
a.traffic
congestion,
b.pedestrian and
vehicular safety,
c.road
configurations,
d.alternate
routes,
e.vehicle emissions;
and
f.other environmental impacts
related to traffic.
3.where it would have an adverse impact on
Rare Species Habitat listed by the Natural Heritage and Endangered Species
Program of the Division of Fisheries and Wildlife, an Ecologically Significant
Natural Community as documented by the Natural Heritage and Endangered Species
Program or the wildlife habitat of any state Wildlife Management
Area.
4.in a location where the
anticipated emissions from facility operations would not meet required state
and federal air quality standards or criteria or the Department determines that
it would otherwise constitute an unacceptable risk to the public, taking into
consideration:
a.the concentration and
dispersion of emissions,
b.the
number and proximity of sensitive receptors, and
c.the attainment status of the
area.
(9)
Shoreline Placement and
Upland Material Reuse Under a 401 Certification. In accordance
with a 401 Certification pursuant to 314 CMR 9.07 the Department may permit:
(a) Shoreline Placement of dredged material
at a location proximal to the dredging activity that lies within the 100-year
floodplain or buffer zone as defined in
310 CMR
10.00: Wetlands Protection which ever is greater.
Proposals to reuse dredged material shall comply with the regulatory standards
of
310 CMR
10.00: Wetlands Protection and
310 CMR
9.00: Waterways. Material reuse may include, but is
not limited to, use as fill behind bulkheads, or to maintain or improve
existing filled areas.
(b) Upland
Placement of dredged material in any upland area as fill or for other reuse
activities, provided the concentrations of oil and hazardous material in the
dredged material are less than the S-1 soil standards applicable at the
receiving location as specified in
310 CMR
40.0975: Identification of Applicable Soil
Standards in Method 1, that the material is not otherwise a hazardous waste and
will not adversely affect an existing public or private potable water supply,
provided that:
1.The material is not reused
at a location(s) where:
a.the nature of the
contaminants (evaluated as chemical families such as metals, PAHs, petroleum
hydrocarbons, halogenated volatile organic compounds, halogenated pesticides,
PCBs, and dioxin-like compounds) in the dredged material is different than that
at the receiving location; and
b.the concentration(s) of oil and hazardous
materials in the soil at the receiving location are significantly lower than
the levels of those oil and hazardous materials present in the
material;
2.The material
is taken to a site within a designated port area as defined in
310 CMR
9.00: Waterways where practicable.
3.The material is dewatered prior to
transportation from the site of dredging and any Intermediate Facilities to the
reuse location;
4.The material is
managed, transported, and placed at the receiving location in compliance with
the requirements of 314 CMR 9.07;
5.The Department has not determined in
writing that either because of the nature of the proposed activity, the amount
of the material, and/or the characteristics of the material that the material
requires management as a solid waste subject to the provisions of
310 CMR 16.00: Site
Assignment Regulations for Solid Waste Facilities and/or 19.000: Solid Waste
Management; and
6.The applicant
provides the following information with the 401 Water Quality Certification
application;
a.for the property at which the
dredge material is proposed to be reused:
i.
the name and address of the owner of the property,
ii.the name and address of the person
proposing to reuse the material, if different than the owner of the property,
iii.the address of the property,
and
iv.a United States Geological
Survey Topographic Map showing the location of the property.
b.a description of the
proposed reuse for the material, including but not limited to, the volumes and
schedule for the activity;
c.a
physical and chemical characterization of the material and the soil at the
receiving location within and adjacent to the footprint of the proposed area
where the material is to be placed;
d.a statement of certification signed by the
applicant and the owner of the property at which the dredge material is
proposed for reuse that the reuse of the material complies with the provisions
of 314 CMR 9.07(9); and
e.Documentation that the Board of Health of
the community(ies) within which the property(ies) are located that the dredged
material is proposed for placement has been notified in writing of the
proposal.
(c)
Reuse under a Dredged Material Reuse Decision at any upland area not authorized
under 314 CMR 9.07(9)(a) or (b), provided the applicant obtains a prior written
approval of dredged material reuse from the Department, which complies with the
following requirements and conditions:
1.Submittal and Criteria
Requirements. An application for a Dredged Material Reuse Decision
(DMRD) shall be submitted to the Department, and a copy of the application
shall be filed with the board of health of jurisdiction, unless the Department
determines in writing that the proposed use is not limited to a specific
location and therefore it is not practical to identify the board of health with
jurisdiction. The application shall contain at least the information indicated
in 314 CMR 9.07(9)(c)2.a. through h.; and the proposed reuse shall comply with
the criteria and requirements in 314 CMR 9.07(9)(c)3.a. and b.
2.
Application
Requirements. Each application shall contain at a minimum:
a.a description of the proposed
use;
b.chemical and physical
characterization of the dredged material as defined in 314 CMR
9.07(2);
c.the proposed method of
handling and utilization of the dredge material;
d.identification of the quantity, quality and
source of the material;
e.a
description of any risk management techniques being considered, including any
deed or other use limitations, location restrictions, best management practices
or engineering controls;
f.identification of the proposed location of
use, if applicable, or types of locations where the dredge material will be
used (e.g., highway rights-of-way, industrial zoned properties,
etc.);
g.a U.S.G.S. 7.5 minute
topographic map or smaller scale equivalent map clearly marking the locations
of the beneficial use activities; and
h.such additional information as the
Department deems necessary and appropriate to evaluate and permit the proposed
processing and dredge material reuse.
3.
Approval Criteria and
Requirements. Compliance with the Approval Criteria can be
achieved by demonstrating that release and exposure pathways are adequately
controlled through the use of risk management procedures (e.g. engineering
controls; use limitations, etc.) If adequate control of such pathways cannot be
demonstrated, a reuse specific assessment is required, as described in 314 CMR
9.07(9)(c)3.b.i. or ii. Compliance with the Criteria has been achieved if no
concentration of any hazardous material is greater than the Upper Concentration
Limit as described in
310 CMR
40.0996: Method 3 Upper Concentration Limits
and conditions specified in either 314 CMR 9.07(9)(c)3.b.i. or ii. are met:
a.The concentrations of oil and/or hazardous
materials are not significantly above background, as determined by a
statistically valid and appropriate background concentration sample data set of
Massachusetts soils or by a reuse location-specific determination of
background; or
b.No concentration
of oil and/or hazardous materials contained in, or likely to be released as a
result of the use of, the dredge material, as appropriate, exceeds acceptable
limits as demonstrated using one of the following approaches:
i.Numerical Standards
Approach. Oil and/or hazardous material concentrations may not
exceed applicable standards and guidelines as stipulated by DEP. If an
appropriate DEP standard or guideline does not exist for all constituents in
all relevant media, then a guideline may be proposed by the applicant developed
using protocols consistent with those used in the derivation of existing DEP
standards and guidelines for that medium. In addition to the standards and
guidelines, the applicant shall demonstrate that the reuse will not lead to
exceedances of
310 CMR
22.00: Drinking Water; 7.00: Air Pollution Control;
and 40.0970: Method 1 Risk Characterization applicable to the reuse location;
Massachusetts Surface Water Quality Standards at
314 CMR 4.00: Massachusetts
Surface Water Quality Standards and alterations of wetland resources areas in
violation of
310 CMR
10.00: Wetlands Protection.
ii.
Total Waste Reuse Risk
Approach. Using this approach, Total Waste Reuse cancer and
non-cancer risks shall be determined as follows:
- Total cancer risks and non-cancer risks shall be calculated
for all appropriate exposure pathways and receptors.
- The assessment shall be performed in a manner consistent with
scientifically acceptable risk assessment practices as detailed in guidance
published by the Department.
- A condition of no significant risk to human health has been
achieved if:
- No Exposure Point Concentration of any hazardous material is
greater than applicable public health or environmental standards; and,
- Total Waste Reuse Risk (the aggregate risk attributable to
oil and/or hazardous materials) results in excess lifetime cancer risk of less
than one-in-one hundred thousand and a noncancer cumulative hazard index of
less than one.
4.Public Safety and
Welfare. A level of no significant risk to public safety and
welfare exists or has been achieved if the use of the dredged material will not
pose a threat of physical harm or bodily injury to people and will not create
nuisance conditions, including, but not limited to, noxious odors and noise, in
the foreseeable future.
5.Environment. A
level of no significant risk of harm to the environment exists, or has been
achieved, if there is no indication of the potential for biologically
significant harm (at the subpopulation, community, or system-wide level),
either currently or for any foreseeable period of time, to environmental
receptors considering their potential exposures to the dredge
material.
6.
Property
Owner Notification. The Applicant shall prepare and record, when
required by this or other permit term or condition, a record in the Registry of
Deeds, Land Court, or other permanent record approved by the Department that
shall:
a.Provide notice to holders of any
interest(s) in a property or a portion thereof (including without limitation,
owners, lessees, tenants, mortgagee, and holders of easement rights) of the
existence and location of the dredge material at such property and the
conditions for continued beneficial use and ultimate disposal, if
applicable;
b.Outline management
options if removed, modified, or processed during its lifecycle to prevent
adverse impacts and significant risks to public health, safety and the
environment, including, but not limited to, nuisance conditions and public
welfare impacts; and,
c.Provide
reference to the Department DMRD application file by including the permit
application transmittal number and file location.
Dredged material, when managed in accordance with provisions
314 CMR 9.07(9) (a), (b) or (c), shall not be considered solid waste for the
purposes of
310 CMR 16.00: Site
Assignment Regulations for Solid Waste Facilities and 19.000: Solid Waste
Management and its management shall not be considered disposal, unless the
Department determines in writing that due to the chemical or physical
characteristics of the dredged material or the nature of the activity and/or
the amount of the material that the dredged material is a solid waste.
(10)
Management of Dredged
Material at Disposal Sites Pursuant to M.G.L. c. 21E and 310 CMR 40.0000:
Massachusetts Contingency Plan.
(a) The dredging, management, and placement
of dredged material generated at a disposal site at which response actions are
being conducted pursuant to 310 CMR 40.0000: Massachusetts Contingency Plan,
the Massachusetts Contingency Plan, shall be performed pursuant to the
provisions of 310 CMR 40.0000 and
314 CMR 9.00. A copy of the
remedial action plan under 310 CMR 40.0000, e.g., Immediate Response Action
Plan, Release Abatement Measure Plan, Remediation Implementation Plan in which
the activity is being conducted and the appropriate transmittal form shall be
included with the application for the 401 Water Quality Certification, unless
specifically exempted by the Department in writing or in these
regulations.
(b) The dredging,
management at an Intermediate Facility, and placement at a Confined Disposal
Facility or Confined Aquatic Disposal Facility of dredged material generated at
a disposal site as part of a remedial action pursuant to 310 CMR 40.0000:
Massachusetts Contingency Plan shall also be subject to the provisions of
314 CMR 9.00 and a 401 Water
Quality Certification. In addition, dredged material generated at a disposal
site as part of remedial action under 310 CMR 40.0000 shall be managed in
accordance with 310 CMR 40.0000: Massachusetts Contingency Plan, including but
not limited to the provisions of
310 CMR
40.0030: Management Procedures for
Remediation Waste.
(c) Dredged
material containing oil and/or hazardous materials and that is not otherwise a
hazardous waste may be brought from another location to a disposal site and
utilized as part of a comprehensive remedial action pursuant to
310 CMR
40.0800: Comprehensive Response Actions,
provided that:
1.The material is dewatered
prior to transportation to the disposal site;
2.The material is not reused at a location
where:
a.the nature of the contaminants
(evaluated as chemical families such as metals, PAHs, petroleum hydrocarbons,
halogenated volatile organic compounds, halogenated pesticides, PCBs, and
dioxin-like compounds) in the dredged material is different than that at the
receiving location; and
b.the
concentration(s) of oil and hazardous materials in the soil at the receiving
location are significantly lower than the levels of those oil and hazardous
materials present in the material;
3.It has been demonstrated that it is not
feasible to reduce or approach the level of oil or hazardous material at the
site of reuse to background in accordance with 310 CMR 40.850: Phase III -
Identification, Evaluation and Selection of Comprehensive Remedial Action
Alternatives;
4.The reuse of the
material does not extend beyond the boundary of the area of contaminated soil
at the disposal site;
5.The reuse
of the material does not result in a condition of Significant Risk as defined
in 310 CMR 40.0000: Massachusetts Contingency Plan;
6.The material substitutes for a material
that is otherwise required for and integral to the remedial action at the
disposal site unless otherwise authorized by 314 CMR 9.07(c);
7.Unless otherwise approved by the Department
in writing, the remedial action is conducted under a Phase IV - Remedy
Implementation Plan developed pursuant to
310
CMR 40.0870: Phase IV - Implementation of the
Selected Remedial Action Alternative that provides for the use of the material
at the disposal site.
8.The
material is taken to a 21E site within a designated port area as defined in
310 CMR
9.00: Waterways where practicable.
(11)
Management of Dredged Material Under the Solid Waste Regulations
Pursuant to
310 CMR 16.00: Site
Assignment Regulations for Solid Waste Facilities and 19.000: Solid Waste
Management. Dredged material placed at upland locations other than
under 314 CMR 9.07(6), (9) and (10) shall be managed subject to provisions of
the Solid Waste Regulations at
310 CMR 16.00 and 19.000 and
relevant Guidelines and Policies.
(12)
Applicability of M.G.L.
c.21C and 310 CMR 30.000: Hazardous Waste. Dredged material when
temporarily stored at an intermediate facility pursuant to 314 CMR 9.07(4), or
when placed in confined disposal pursuant to 314 CMR 9.07(8) shall not be
subject to regulation as a hazardous waste under 310 CMR 30.000: Hazardous
Waste, provided it is managed in accordance with the following:
(a) the material is managed in accordance
with requirements established in a Clean Water Act (
33 U.S.C.
1344) § 401 certification, specifically
covering the intermediate facility or the confined disposal; and
(b) the material is managed in accordance
with requirements included in a permit issued under § 404 of the Clean
Water Act, specifically covering the intermediate facility or the confined
disposal;
(c) this exemption shall
not apply:
1.to any facility or activity that
is not subject to regulation under § 404 of the Clean Water Act;
2.to any facility or activity for which 401
certification requirements have been waived by the Department;
3.to any facility or activity regarding which
all 401 certification requirements established by the Department have not been
included in a 404 permit; or
4.if
the Department determines that compliance with some or all of the provisions of
310 CMR 30.000: Hazardous Waste is required.
(13)
Interstate
Management.
(a)
Dredged Material from Out-of-state Waters. An
applicant proposing to manage dredged material from out-of-state waters
pursuant to permits issued for Massachusetts facilities which are proposed to
handle dredged material shall file a notification on a form available from the
Department. Any out-of-state applicant proposing to dispose, manage, or use
dredged material in Massachusetts shall contact the Department to discuss the
project prior to the submittal of permit applications.
(b)
Dredged Material Going to
Out-of-state Management Facilities. An applicant proposing to use
or dispose of dredged material originating in Massachusetts at an out-of-state
location shall demonstrate to the Department that this alternative is approved
by the receiving State. Documentation shall include:
1.evidence that acceptance of the dredged
material by the facility complies with the requirements of the receiving state,
which may consist of either;
a.letter from the
appropriate regulatory agency of the receiving state approving receipt of the
dredged material, or
b.copies of
the relevant portions of the facility's permit;
2.evidence that the dredged material has been
characterized and meets the facility's acceptance criteria; and
3.written documentation that the receiving
facility has agreed to accept the dredged material.
(14)
Certification
Requirements. The Department may incorporate into its
Certification requirements and conditions for each milestone in the dredging
process, which shall be performed by the project proponent. Documentation of
the fulfillment of the requirements and conditions for each milestone (e.g.,
quality assurance/quality control plan, liner installation requirements, cap
construction) shall be prepared by a Qualified Environmental Professional and
submitted to the Department.
(15)
Post-closure Use. No person shall use a dredged
material placement facility site permitted under 310 CMR 9.07(9) for any
purpose other than that established in the 401 Certification after closure
without first obtaining Department approval.
(16)
Financial Responsibility for
Closure, Post-closure and Corrective Actions. The owner or
operator of a dredged material placement or disposal facility may be required
to establish or obtain, and continuously maintain, financial assurance that is
adequate to assure the Department that the owner or operator is at all times
financially capable of complying with the provisions of
314 CMR 9.00 governing the
closure of the facility and its post-closure maintenance.