This proposed rule, which is intended to be largely self-implementing, incorporates requirements in Act 93, provides sediment sampling and analysis requirements, and outlines additional information to guide streamlined applications for dredged material disposal facility proposals.
Section 289.43 (8) (d), Wis. Stats., provides a new exemption from certain solid waste facility licensing requirements for the disposal of dredged material that is conducted by municipalities and counties and is from Lake Michigan or Lake Superior. Under Act 93, dredged material – already defined in s. NR 500.03 (71), Wis. Adm. Code, as any solid waste removed from the bed of any surface water – can be disposed of in a solid waste facility that has not obtained an operator’s license or approved plan of operation if the department determines that all of the following requirements are satisfied:
The material is dredged by a municipality or county, or a contractor of a municipality or county.
The material is dredged from Lake Michigan, Lake Superior, or bays or harbors of those lakes.
The dredging and disposal will have a demonstrable economic public benefit, defined under s. 281.36 (1) (am), Wis. Stats., to mean an economic benefit to the community or region that is measurable, such as increased access to natural resources, local spending by the proposed project, employment, or community investment.
The cumulative adverse environmental impact of the dredging is insignificant and will not injure public rights or interests, cause environmental pollution, or result in material injury to the rights of any riparian owner.
The disposal facility is in compliance with performance standards established by the department by rule.
The disposal facility will accept dredged material for a period not to exceed 10 years or in an amount not to exceed 35,000 cubic yards in total, whichever occurs first. However, the exemption may be voided if there is a material adverse change in the contamination in the dredged material that would be disposed of at the facility, or if there is a material change in the intended use of the dredged material.
The disposal facility is not located within 100 feet of any wetland or critical habitat area or within a floodplain, unless the project is for beach nourishment 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.
The disposal facility is not located within 100 feet of any water supply well.
The disposal facility will confine the disposal area to as limited a geographic area as is practicable.
The disposal facility and application are in compliance with any other conditions established by the department by rule.Statutes also require a municipality, county, or contractor to submit an application to the department at least 60 days prior to beginning the disposal and specify that the department may not review the application until the department determines it is complete. An application may address the disposal of dredged material from a single dredging location at multiple disposal sites. The application is considered approved if the department does not provide a written objection to the application within 30 days of a complete application submittal.
This proposed rule also:
Specifies that a disposal facility boundary must be determined at the time of application. This boundary is used when determining distance from wetlands, floodplains, water supply wells, separation to groundwater, or other locational and performance standards.
Specifies that the disposal facility waste boundary must be separated from seasonal high groundwater by a minimum depth of 3 feet. This is the same minimum distance used for projects involving the beneficial use of high-volume industrial materials under ch. NR 538, Wis. Adm. Code.
Identifies disposal facility performance standards as those listed in s. NR 504.04 (4), Wis. Adm. Code, and prevents disposal facilities created under this exemption from accepting hazardous waste, contaminated waste from a remediation site, or polychlorinated biphenyl (PCB) waste that would already be regulated under federal rules.
Describes how to determine the maximum 10-year exemption period for the dredge disposal facility and associated tracking and notification procedures.
Describes requirements for tracking dredge disposal amounts at a facility in order to prevent disposing of more than 35,000 cubic yards at that site.
Defines requirements for covering and seeding the disposal facility after dredge disposal activity is complete.
References requirements regarding storm water run-off pollution prevention control requirements at the disposal facility.
Identifies the information required to make an application complete.
Describes recordkeeping and reporting requirements for the disposal facility.
Describes requirements when a project is for beach nourishment above the ordinary high water mark on a public beach that has already been noticeably disturbed by human activities.
Identifies dredged material sampling and analysis requirements prior to disposal to determine environmental impact, using as a guide the existing ch. NR 347, Wis. Adm. Code, “Sediment Sampling and Analysis, Monitoring Protocol and Disposal Criteria for Dredging Projects.” 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
In general, disposal of solid waste in Wisconsin must be as protective as federal land disposal requirements in the Resource Conservation and Recovery Act (RCRA), contained in title 40 of the Code of Federal Regulations. 40 CFR Part 257 Subpart A of RCRA includes criteria for classification of solid waste disposal facilities and practices. The proposed rule complies with the federal criteria. 7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope:
The department did not hold a preliminary public hearing on the scope statement.
8. Comparison with Similar Rules in Adjacent States:
Michigan regulates dredging action within the Great Lakes and inland lakes and streams. Permits are required for dredging and sediment testing may be required under certain circumstances as part of the permit application review. Sediment testing results are used as one avenue to determine whether a proposed project will result in an unacceptable negative impact on aquatic resources, related either to the mobilization of contaminants to a new location or by exposing wildlife (including fish and other aquatic life) to contaminants previously buried.
Under Michigan rules, “dredgings” are exempt from regulation as solid wastes if they are approved by the department for disposal under issuance of a permit authorizing the disposal and dredgings of more than 300 cubic yards that are removed from an area of concern, are evaluated for contamination, and are managed. To evaluate dredgings for contamination, the material is analyzed for PCBs, polynuclear aromatic hydrocarbons, and other metals, or, instead of analyses, there is a demonstration that the particle sizes of the dredgings are such that 95% or more of the particles will be retained on a No. 200 sieve.
Minnesota may require a State Disposal System (SDS) permit for storing, treating, disposing of, or reusing dredged materials on land in Minnesota if the material was dredged from navigational channels, harbors, docks and marinas, and similar projects in certain areas, and for volumes greater than 3,000 cubic yards that will be stored or reused. Dredged material is assigned a “management level” based on sediment characterization (analyzing the type and level of pollutants), which dictates its appropriate disposition.
Illinois has determined that dredged material is classified as clean construction or demolition debris per Section 3.160 (b) of the Illinois Environmental Protection Act. Therefore, if the material does not exceed the Maximum Allowable Concentration (MAC) Table on its website, which is based on risk-based data on human health and the environment, it is unregulated. This “unregulated” status means that dredge material is allowed to be placed in open waters of Lake Michigan, assuming placement location meets certain requirements (depth and bed material similarity). If the material sampling exceeds the MAC table, it is considered a special waste and must either be disposed of at a permitted site, such as a landfill or confined disposal facility, or possibly reused for fill at a clean-up site or beneficially reused depending on level of contamination and reuse type. The U.S. Army Corps of Engineers conducts most deep-water disposal for dredging on Lake Michigan. Iowa does not border the Great Lakes, but is an adjacent state that does have inland and Mississippi River dredging projects. Iowa cannot require any testing of dredged material if there is no reason to believe that it is contaminated, but the end user(s) may ask for testing to substantiate non-contamination claims. The dredgings must pass the paint filter test (no free liquids) before they could be considered a solid waste and subject to regulatory oversight.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
Dredging projects primarily consist of three steps. The first is to remove sediment from a waterbody using either mechanical or hydraulic methods. The second step is to process the dredged material, including dewatering and transportation from the removal site to a location for use or disposal. The third step is placement of the dredged material. Permits or regulatory approvals from the department may be required at each of these three steps. In order to conduct a successful dredging project, while minimizing the impact of dredging on the environment, the quality and quantity of sediment to be removed needs to be assessed to ensure that all dredging activities meet permit or regulatory requirements.
Contamination is caused by a chemical substance or substances, either organic or inorganic, which are present in sediments or surface waters above levels that naturally occur in the environment. To evaluate contamination, it is necessary to understand the normal or background levels in sediment for the project area. Background for inorganics (metals) is the concentration of metals that originate from the natural soil types and the geochemical components of the watershed. Background for natural organic compounds would generally be those compounds that originate from vegetative or animal matter that are deposited on the bottoms of lakes, streams, and wetlands. Organic chemicals manufactured by humans and released to the environment generally do not have counterparts found in nature and therefore any levels found in environmental media would be considered potential contamination. Many manufactured organic compounds may be found universally at low levels in sediments, especially in urban areas.
Contaminants at elevated levels in sediment have the potential to cause adverse environmental impacts during and after a dredging operation. Chapter NR 347, Wis. Adm. Code, related to dredged material sampling and analysis requirements, provides a guide for collection of sampling and analytical information. The code requirements are premised on the need to obtain adequate information to characterize the quality of sediments within the proposed project area. These data are used to identify if there are any potential environmental concerns that may arise during the dredging, processing, and disposal of those sediments. Additionally, ch. NR 347, Wis. Adm. Code, allows the department to increase, decrease or waive sampling requirements as appropriate to the project conditions. For a non-exempt project involving the disposal of dredged material at an upland non-landfill disposal facility, the department may require samples be taken from the proposed disposal site and analyzed for parameters found elevated in samples from sediments in the project area (s. NR 347.06 (3) (c), Wis. Adm. Code). Great Lakes beach nourishment disposal sites have additional sampling and analytical requirements, as well as grain-size analysis between dredge material and the beach (ss. NR 347.06 (3) (d) and 347.07 (4), Wis. Adm. Code). Most dredge projects meet the solid waste codified exemption criteria in s. NR 500.08 (3), Wis. Adm. Code. In these cases – similar to the projects to which this rulemaking would apply – material disposal is not subject to licensing and plan review by the department’s Waste and Materials Management Program. However, there are waterway restrictions, volume restrictions, and performance standards outlined in s. NR 504.04 (4), Wis. Adm. Code, that must be met. The applicant must determine compliance with the exemption criteria and provide that information to the department. If exempt, the ch. 30, Wis. Stats., dredging permit will include a finding that the exemption criteria have been met. If the project is not eligible for exemption under s. NR 500.08 (3), Wis. Adm. Code, the material must be disposed of in a department approved disposal facility such as a landfill or dredged material disposal facility. The department may approve of a dredged material disposal facility or other non-landfill disposal of select dredged material through a low-hazard grant of exemption in accordance with s. 289.43 (8) (b), Wis. Stats. Unlike projects that would meet the exemption in this rulemaking, a low-hazard grant of exemption requires a more detailed review of proposed plans for the disposal site, a public meeting, and usually contains conditions of approval. 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.
