10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The proposed rule is not expected to have an impact on small businesses because the entities affected are municipalities and counties.
The proposed rule would likely have a minimal, positive economic impact for municipalities and counties. It is intended to be largely self-implementing. The rule would incorporate all requirements for the dredge disposal process, making steps transparent for municipalities that need to dispose of dredged material. This transparency will reduce costs and time for municipalities, counties, or their contractors when preparing and submitting documents for department review.
Rulemaking is required under Act 93. The department currently has existing review processes for these types of projects that also do not require licensing of a facility. Existing administrative rule, s. NR 500.08 (3) (a), Wis. Adm. Code, currently provides a limited exemption for the disposal of non-hazardous dredged material from Lake Michigan and Lake Superior. Under s. NR 500.08 (3) (a), a disposal facility/location is exempt from licensing and plan review requirements if the total disposed is less than 3,000 cubic yards of dredged material and complies with the performance standards specified in s. NR 504.04 (4), Wis. Adm. Code. Dredged material disposal from the Great Lakes that exceeds the 3,000 cubic yard limit is often regulated under a low-hazard waste exemption authorized under s. 289.43 (8) (b), Wis. Stats. 11. Effect on Small Business (initial regulatory flexibility analysis):
The proposed rule is not expected to have an impact on small businesses because the entities affected are municipalities and counties.
12. Agency Contact Person: Kate Strom Hiorns, Solid Waste Section Chief, Bureau of Waste & Materials Management; PO Box 7921, Madison, WI 53707-7921; Phone: 608-294-8663
13. Place where comments are to be submitted and deadline for submission:
A public comment period on the draft rule occurred from January 30, 2023 to March 21, 2023, with a public hearing on March 14, 2023.
RULE TEXT
Section 1 NR 500.08 (3) (a) is amended to read:
NR 500.08 (3) (a) Facilities Except as provided under s. NR 500.08 (3m), facilities for the disposal of nonhazardous dredged material consisting of less than 3000 cubic yards from Lake Michigan, Lake Superior, the Wisconsin river, the Sheboygan river, the Milwaukee river, the Brule and Menominee rivers, the Fox river, the Mississippi river, or from any inland lakes or ponds treated with arsenicals provided the facility complies with the performance standards specified in s. NR 504.04 (4). Section 2 NR 500.08 (3m) is created to read:
NR 500.08 (3m) Exemption for material dredged from the Great Lakes. A facility for the exclusive disposal of material dredged by a municipality or county or a contractor for a municipality or county from Lake Michigan, Lake Superior, or bays or harbors adjacent to Lake Michigan or Lake Superior is exempt from the licensing and plan review requirements under chs. NR 500 to 538, except for appropriate fees under ch. NR 520, Table 3, if established and operated in accordance with all of the following requirements: (a) The department determines that the dredging and disposal will have a demonstrable economic public benefit, as defined under s. 281.36 (1) (am), Stats. (b) The department determines that the cumulative adverse environmental impact of the dredging and disposal is insignificant and will not injure public rights or interests, cause environmental pollution, as defined under s. 299.01 (4), Stats., or result in material injury to the rights of any riparian owner. To make this determination, the disposal facility shall comply with the performance standards under s. NR 504.04 (4) and may not accept hazardous waste, contaminated sediment from a site regulated under chs. NR 700 through 799, or sediment with polychlorinated biphenyls regulated under 40 CFR 761. (c) Except for a disposal facility created for the purpose of beach nourishment to add, replenish, or prevent erosion of beach material, the disposal facility is located at least 100 feet from any wetland or critical habitat area and is outside a floodplain. Beach nourishment may only be conducted above the ordinary high water mark on a public beach that has already been noticeably disturbed by human activities such as the construction of a parking lot, public swimming area, or other improvement and that has no unique ecological value.
(d) The disposal facility is located at least 100 feet from any water supply well.
(e) The owner of the disposal facility accepts dredged material for not more than 10 years or in an amount not to exceed 35,000 cubic yards, whichever occurs first, in accordance with all of the following:
1. The start of the 10-year maximum active period of the disposal facility begins upon initial disposal of dredged material onsite.
2. The owner of the disposal facility shall submit the dates of initial and all subsequent disposal of dredged material in the disposal facility, sample analytical data collected for each source location under par. (n), and the volume of dredged material during each disposal event to the department within 30 days of each disposal event.
3. The owner of the disposal facility shall submit a new application prior to any changes in facility location, boundaries, or design, or changes in the intended use of the dredged material.
4. There is not a material adverse change in the contamination of the dredged material that would be disposed of at the facility and there is not a material change in the intended use of the dredged material.
(f) The owner of the disposal facility shall confine the disposal area to as limited a geographic area as is practicable and maintain a minimum separation distance of 1,300 feet from any other disposal facility approved under this subsection.
(g) The owner of the disposal facility shall maintain records of the description and volume of all material disposed of at the facility and dates of all disposal events. These records shall be maintained and made accessible to department staff upon request for 15 years after the initial disposal of dredged material in the facility.
(h) The owner of the disposal facility shall determine the contaminant characteristics of the dredged material prior to disposal by conducting sampling and analysis as required under par. (n).
(i) Except for a disposal facility created for the purpose of beach nourishment to add, replenish, or prevent erosion of beach material, the owner of the disposal facility shall maintain a minimum separation distance of 3 feet between the dredged material and the seasonal high groundwater table at the time of placement.
(j) Except for a disposal facility created for the purpose of beach nourishment to add, replenish, or prevent erosion of beach material or unless the dredged material is used as fill underneath an impermeable structure or surface, the owner of the disposal facility shall place final cover over the waste within 90 days after the 10-year period under par. (e) or attainment of 35,000 cubic yards in volume, whichever is first, in accordance with all of the following:
1. The cover shall consist of a minimum of one foot of native soil that includes a minimum of 6 inches of topsoil to support vegetation. The proposed vegetation shall be appropriate for the type and quality of topsoil, be compatible with both native vegetation and the final use, and be capable of providing stability and preventing erosion of the cover soils and dredged material.
2. Final vegetated slopes may not be steeper than a 3:1 horizontal to vertical incline.
(k) Except for a disposal facility created for the purpose of beach nourishment to add, replenish, or prevent erosion of beach material, the disposal facility shall be operated and maintained to minimize dust, minimize off-site tracking of soil or dredged material, and manage storm water runoff as required under chs. NR 151 and 216. An interim cover capable of preventing erosion, windblown dust, and direct contact with the dredged material shall be placed over the dredged material in any areas that do not have final cover and are anticipated to be inactive for more than 90 days. (L) At least 60 days prior to beginning disposal under this exemption the municipality or county or the contractor for the municipality or county shall submit an application on a form provided by the department requesting an exemption under this section. At a minimum, the form shall include all of the following information:
1. Address or location by quarter – quarter section of the disposal site or sites.
2. Name, address, and contact information of the primary contacts including the proposed disposal facility owner and any consultants.
3. Name of the person accepting the dredged material.
4. Map or aerial image showing the disposal location or locations.
5. Coordinates for the center of the disposal location or locations.
6. Dates when dredged material is first to be received at the disposal location or locations.
7. Approximate total volume of material to be disposed, description of the dredged material, and description of source location.
8. Intended uses of the dredged material.
9. Documentation of all other local, state, or federal approvals received for the dredging and disposal.
10. The available laboratory analytical data for samples collected from the dredged material to determine environmental impact in accordance with par. (n).
11. An explanation of how each of the requirements in pars. (a) to (k) and (o) will be met.
12. Submittal of the appropriate fees under ch. NR 520, Table 3. Note: An application form for requesting an exemption under this section may be obtained from the Department of Natural Resources, Waste and Materials Management Program, 101 S. Webster Street, P.O. Box 7921, Madison, WI 53707−7921, DNRWasteManagement@wisconsin.gov. (m) If the application under par. (L) is not complete or any of the requirements are not met, the department shall issue a written objection to the application with an explanation. If the department does not provide a written objection to the application within 30 days of receipt of application and fees by the department, the applicant may proceed under this exemption. After an objection, an applicant may resubmit a revised application that addresses the explanation for objection by the department.
(n) The applicant shall take samples and analyze the dredged material prior to disposal in accordance with all of the following:
1. Sampling, sample handling, and sample analysis to demonstrate compliance with this section shall be performed in accordance with methods from applicable sources enumerated under ch. NR 149. 3. If previous sampling data or other available information indicate the possibility of contamination by chemicals not listed in Table 3, the department may require analysis for those chemicals.
4. The laboratory analytical data for samples collected from the dredged material shall include tables summarizing the analytical data and copies of the laboratory analytical data sheets for all analyses, a map of the project area showing the specific locations of sediment sampling sites, and the name and address of the laboratory that performed the tests. All testing and quality control procedures shall be described and analytical methods, detection limits, and quantification limits shall be identified.
5. The applicant shall collect the appropriate number of samples from the dredged material capable of yielding data that accurately represent the contaminant characteristics of the material in accordance with all of the following:
a. Laboratory analytical data from the dredged material source location may not be more than 5 years old from the date of application submittal.
b. At a minimum, the applicant shall follow Table 1 sampling requirements if sampling is conducted prior to removal of the dredged material from its source.
c. At a minimum, the applicant shall follow Table 2 sampling requirements if sampling is conducted after removal of the dredged material from its source.
d. At a minimum, all samples shall be analyzed and reported as total concentration in milligrams/kilogram dry weight for the parameters listed in Table 3. Sample collection and evaluation shall be performed by or under the supervision of an environmental professional.
Note: As defined under s. NR 528.03 (7), “Environmental professional” means a professional engineer registered pursuant to s. 443.04, Stats., or a professional soil scientist, geologist or hydrologist licensed under ch. 470, Stats. Table 1
Sampling requirements when conducted prior to removal of the dredged material from its source
TOTAL VOLUME PLANNED FOR DISPOSAL IN CUBIC YARDS | MINIMUM NUMBER OF CORE SAMPLES1 |
1 At least one sample from each distinct layer or strata observed in each core of the material to be dredged, or if no strata formation exists, then at least 2 samples from each core shall be analyzed for the required chemicals and characteristics. Distinct layers or strata may be identified by differences in grain size, color, texture, and content such as organic matter, sands, and silts along the length of the core.
Table 2
Sampling requirements when conducted after removal of the dredged material from its source
TOTAL VOLUME PLANNED FOR DISPOSAL IN CUBIC YARDS | MINIMUM NUMBER OF SAMPLES |
Less Than 600 | 1 sample/200 cubic yards, Minimum of 2 samples |
Table 3
ANALYSES TO BE PERFORMED ON SAMPLES
ORGANICS | INORGANIC – METALS | OTHER INORGANICS |
Oil & Grease | Arsenic | Particle Size Analysis – Sieve and Hydrometer Analysis |
Dioxin for Lake Superior Projects | Barium | Ammonia-Nitrogen |
Chlordane | Cadmium | Nitrate + Nitrite |
Dichloro-diphenyl-trichloroethane (DDT) | Chromium (total) | Total Kjeldahl Nitrogen |
Dichlorodiphenyldichloroethane (DDD) | Copper | Total Phosphorus |
Dichlorodiphenyldichloroethylene (DDE) | Lead |
Polychlorinated Biphenyls (PCBs) (Total) | Manganese |
Total Organic Carbon | Mercury |
Polycyclic Aromatic Hydrocarbons (PAHs): Acenaphthlyene Acenapthene Anthracene Benzo (a) anthracene Benzo (a) pyrene Benzo (e) pyrene Benzo (b) fluoranthene Benzo (g,h,i) perylene Benzo (k) fluoranthene Chrysene Dibenzo(a,h)anthracene Fluoranthene Fluorene Indeno (1,2,3-cd) pyrene Naphthalene Phenanthrene Pyrene 2-Methylnapthalene | Nickel |
(o) The owner of a disposal facility created for the purpose of beach nourishment to add, replenish, or prevent erosion of beach material shall also comply with all of the following:
Section 3 NR 520 TABLE 3 Footnote (6) is amended to read:
NR 520 Table 3 Footnote (6) These fees apply to exemptions requested per under s. NR 500.08 (3m), (4), and (5). Section 4 Effective Date. This rule takes effect on the first day of the month following publication in the Wisconsin Administrative Register as provided in s. 227.22 (2) (intro.), Stats. Section 5 Board adoption. This rule was approved and adopted by the State of Wisconsin Natural Resources Board on August 9, 2023.
