Criteria for the Evaluation of Applications for Dredging and Dredged Material Management

(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. 9.07: continued 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. 9.07: continued (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. 9.07: continued 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. 9.07: continued 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 Arsenic 0.5 Cadmium 0.1 Chromium 1.0 Copper 1.0 Lead 1.0 Mercury 0.02 Nickel 1.0 Zinc 1.0 Polycyclic Aromatic Hydrocarbons (PAHs) 0.02 Polychlorinated 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 Procedure 5 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. 9.07: continued (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; 9.07: continued 3. less than ¼ 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; 9.07: continued 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. 9.07: continued 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. 9.07: continued 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 24­ hour 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. 9.07: continued (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. 9.07: continued (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: 9.07: continued 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 concentra­ tions 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. 9.07: continued - 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: 9.07: continued 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. 9.07: continued (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.