ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING AND AMENDING, AMENDING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal NR 673.05 (2) (c); to renumber and amend NR 673.60 (1); to amend NR 660.10 (133) (c) and (134) (b) 1., 661.0009 (intro.) and (4), 664.0001 (7) (k) 3., 665.0001 (3) (n) 3., 673.01 (1) (c), 673.03 (2) (b), 673.09 (6), (9) and (12) (b) 1., 673.13 (3) (b) 3. and 4., 673.14 (4) (b), 673.32 (2) (d), 673.33 (3) (b) 3. and 4., 673.34 (4) (b), and 673.60 (2); to create NR 660.10 (3o) and (133) (e), 661.0009 (4) (a), (b), (c), (Note 2) and (5), 664.0001 (7) (k) 5., 665.0001 (3) (n) 5., 668.01 (6) (e), 670.001 (3) (b) 8. e., 673.01 (1) (e) and (3), 673.06, 673.09 (1d) and (11) (e), 673.13 (5), 673.14 (6), 673.33 (5), 673.34 (6), and 673.60 (1) (a), (1) (b), (1) (c), and (3) relating to modifying and expanding universal waste management regulations and affecting small business. |
WA-12-21
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: Sections 227.14 (1m), 289.06, 289.24, 289.30, 289.41, 289.46 and 289.67, Stats., ch. 291, Stats., and s. 299.53, Stats. 2. Statutory Authority: Sections 227.11 (2) (a), 227.14 (1m), 287.03 (1) (a), 289.05, 289.06, 289.21, 289.24, 289.30, 289.31, 289.33, 289.41, 289.43, 289.61, 289.63, 291.001, 291.05 and 291.07, Stats. 3. Explanation of Agency Authority: The proposed rules and revisions would replace and update current state rules that comprehensively regulate the generation, transportation, recycling, treatment, storage and disposal of hazardous and universal wastes. As authorized by s. 227.14 (1m), Stats., the format of the proposed rules is similar to the federal regulations published in the code of federal regulations by the EPA under the federal Resource Conservation and Recovery Act (RCRA). When the Wisconsin legislature passed the Hazardous Waste Management Act in 1977 it set out a declaration of policy in what is now s. 291.001, Stats., regarding hazardous waste management. It found that hazardous wastes, when mismanaged, pose a substantial danger to the environment and public health and safety. To provide for proper management of hazardous waste within the state, the legislature called upon the department to develop and administer a regulatory program that met nine specific objectives. Section 227.11 (2) (a), Stats., provides that a state agency “may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute,” subject to certain restrictions. Section 287.03 (1) (a), Stats., directs the department to promulgate rules to implement the Solid Waste Reduction, Recovery and Recycling program pursuant to ch. 287, Stats. Sections 289.05 and 289.06, Stats., direct the department to promulgate rules establishing solid waste management standards. Pursuant to ss. 291.05 and 291.07, Stats., the department is required to promulgate rules for the implementation of the resource conservation and recovery act and the methods of treatment or disposal of particular hazardous wastes. Section 291.001, Stats., calls for a program that: (1) Relies upon private industry or local units of government to provide hazardous waste management services, (2) Requires the transportation, storage, treatment and disposal of hazardous wastes to be performed only by licensed operators, (3) Requires generators of hazardous waste to use operators licensed to transport, treat, store or dispose of hazardous wastes, (4) Does not interfere with, control or regulate the manufacturing processes that generate hazardous wastes, (5) Ensures the maintenance of adequate records on, and the reporting of, the disposition of all hazardous wastes either generated in or entering this state, (6) Encourages to the extent feasible, the reuse, recycling or reduction of hazardous wastes, (7) Provides adequate care and protection of disposal facilities after the facilities cease to accept hazardous wastes, (8) Provides members of the public and units of local government an opportunity to review and comment upon the construction, operation and long-term care of hazardous waste management facilities, and (9) Meets the minimum requirements of RCRA. In furtherance of these stated objectives, the legislature adopted a number of statutes setting out general and specific hazardous waste rulemaking authority. Section 291.05, Stats., for instance, requires the department to adopt by rule EPA’s criteria for identifying the characteristics of hazardous waste, and to adopt EPA’s lists of hazardous wastes and hazardous constituents, with limited exceptions. Rules governing hazardous waste transportation are also mandated, as are rules governing specific aspects of hazardous waste generation, treatment, storage and disposal, corrective action, licensing, closure, long term care, and license and plan review and approval fees. Since hazardous wastes are a subset of solid wastes, rulemaking authority in various sections of ch. 289, Stats., is also relied upon by the department, in particular authority relating to hazardous waste facility location, design, construction, operation, maintenance, closure, long-term care, negotiation and arbitration, financial responsibility and licensing and recycling. 4. Related Statutes or Rules: Chapters 287, 291, 292, and 299, Stats., and chs. NR 2, 140, 141, 500 to 538, 662, 673, 700 to 754 and 812, Wis. Adm. Code. 5. Plain Language Analysis: The rule incorporates into state law changes made to federal hazardous waste regulations by the U.S. Environmental Protection Agency in the following Federal Register, to the extent allowed by state law:
Increasing Recycling: Adding Aerosol Cans to the Universal Waste Regulations, December 9, 2019 (84 FR 67202)
Summary: This rule adds hazardous waste aerosol cans to the universal waste program under the federal RCRA regulations. Aerosol cans are used for dispensing a wide array of products including paints, solvents, pesticides, and personal care products and frequently contain flammable propellants such as propane or butane which can cause the aerosol can to demonstrate the hazardous characteristic for ignitability (s. NR 661.0021, Wis. Adm. Code), may contain materials that exhibit hazardous characteristics (subch. C of NR 661), or may, when discarded, constitute a P- or U-listed hazardous waste if it contains a commercial chemical product found at ss. NR 661.0033 (5) and (6). In 1995, EPA promulgated the Universal Waste Rule (60 FR 25492, May 11, 1995) to establish a streamlined hazardous waste management system for widely generated hazardous wastes as a way to encourage environmentally sound collection and proper management of those wastes. The universal waste regulations in ch. NR 673 are a set of alternative hazardous waste management standards that operate in lieu of regulation under NR 660 through 670.
Under the Universal Waste Rule, destination facilities are those facilities that treat, store, dispose of, or recycle universal wastes. Universal waste destination facilities are subject to all currently applicable requirements for hazardous waste treatment, storage, and disposal facilities (TSDFs) and must receive a RCRA license for such activities. Destination facilities that recycle universal waste and that do not store that universal waste prior to recycling in accordance with s. NR 661.0006 (3) (b) may be exempt from There are eight factors to consider in evaluating whether a waste is appropriate for designation as a universal waste. These factors, found under s. NR 673.81, Wis. Adm. Code, are to be used to determine whether regulating a particular hazardous waste under the streamlined standards would improve overall management of the waste. As the EPA noted in the preamble to the final Universal Waste Rule (60 FR 25513), not every factor must be met for a waste to be appropriately regulated as a universal waste. However, consideration should result in a conclusion that regulating a particular hazardous waste under ch. NR 673 will improve waste management. The EPA added aerosol cans as a universal waste because this waste meets the factors that describe hazardous waste appropriate for management under the streamlined universal waste requirements. The eight factors and an explanation on how aerosol cans meet the universal waste requirements are summarized below:
1. The waste or category of waste, as generated by a wide variety of generators, is listed in subch. D of ch. NR 661 or, if not listed, a proportion of the waste stream exhibits one or more characteristics of hazardous waste identified in subch. C of ch. NR 661. Aerosol cans frequently demonstrate the hazardous characteristic for ignitability due to the nature of the propellant used. In addition, the contents (propellant or product) may also exhibit another hazardous characteristic and may also be a P- or U- commercial chemical product listed waste. 2. The waste or category of waste is not exclusive to a specific industry or group of industries and is commonly generated by a wide variety of types of establishments. EPA has documented in the Federal Register (84 FR 67202) that large and small quantity generators managing hazardous waste aerosol cans can be found in 20 different industries including over 25,000 industrial facilities. Thus, aerosol cans are commonly generated by a wide variety of types of establishments, including retail and commercial businesses, office complexes, very small quantity generators, small businesses, government organizations, as well as large industrial facilities.
3. The waste or category of waste is generated by a large number of generators (e.g., more than 1,000 nationally) and is frequently generated in relatively small quantities by each generator. As documented in the EPA Federal Register, more than 25,000 large and small quantity generators manage hazardous waste
aerosol cans. Quantities generated vary depending on the type of generator and the situations associated with generation. The amount of waste remaining in a full aerosol can differs from the amount remaining in a can that is nearly empty. Data from the EPA show that in 2017, LQGs generated an average of 1.6 tons per year each of aerosol cans (approximately 3,600 cans).
4. Systems to be used for collecting the waste or category of waste (including packaging, marking and labeling practices) would ensure close stewardship of the waste. The baseline universal waste
requirements of notification, labeling, training, and response to releases found in ch. NR 673 and the final specific requirements for management of aerosol cans in ss. NR 673.13 and 673.33, are designed to ensure close stewardship of the hazardous waste aerosol cans. 5. The risk posed by the waste or category of waste during accumulation and transport is relatively low compared to other hazardous wastes, and specific management standards proposed or referenced by the petitioner (e.g., waste management requirements appropriate to be added to ss. NR 673.13, 673.33 and 673.52 or applicable U.S. department of transportation requirements) would be protective of human health and the environment during accumulation and transport. Aerosol cans are designed to contain the products they hold during periods of storage and transportation as they move from the manufacturer to the retailer, and ultimately to the final customer. Because of their design, hazardous waste aerosol cans present a relatively low risk compared to other types of hazardous waste that are not contained
under normal management conditions and the risk posed by intact waste aerosol cans during storage and
transport is similar to the risk posed by intact product aerosol cans. In addition, the ignitability risk posed during accumulation and transport is addressed by standards set by local fire codes, the Office of Safety and Health Administration, and the Department of Transportation. These standards include requirements for outer packaging, can design, and general pressure conditions. The EPA has determined that the requirements of the universal waste program are effective in mitigating risks posed by hazardous
waste aerosol cans. Specifically, the requirements for handlers to accumulate aerosol cans in a container that is structurally sound and compatible with the contents of the aerosol cans will ensure safe management and transport. In addition, the universal waste program requires proper training for employees when handling universal waste, responding to releases, and shipment in accordance with DOT regulations. These requirements will make the risks posed during accumulation and transport low.
Additionally, the final specific requirements for management of aerosol cans that are punctured and drained at the handler address the ignitability risk and are designed to help prevent releases. According to the EPA, the specific aerosol can universal waste management standards address the risks posed by hazardous waste aerosol cans.
6. Regulation of the waste or category of waste will increase the likelihood that the waste will be diverted from non-hazardous waste management systems (e.g., the municipal waste stream, non-hazardous industrial or commercial waste stream, municipal sewer or stormwater systems) to recycling, treatment or disposal in compliance with ch. 291, Stats., and chs. NR 660 to 670, Wis. Adm. Code. Managing hazardous waste aerosol cans under the universal waste program is expected to increase the number of these items collected and to increase the number of aerosol cans being diverted from the non-hazardous waste stream into the hazardous waste stream because it would allow generators, especially those that generate this waste sporadically, to send it to a central consolidation point. Under the Universal Waste Rule, a handler of universal waste can send the universal waste to another handler, where it can be consolidated into a larger shipment for transport to a destination facility. Therefore, it will be more economical to send hazardous waste aerosol cans for recovery and recycling of metal. This rule will increase proper disposal of hazardous waste, making it less likely that aerosol cans will be sent for improper disposal in municipal landfills or municipal incinerators. In addition, because the universal waste regulations make aerosol can collection programs more economical, hazardous waste aerosol cans that might otherwise be sent to a municipal landfill under a VSQG or household hazardous waste exemption will be more easily collected and consolidated for hazardous waste disposal. 7. Regulation of the waste or category of waste under this chapter will improve implementation of and compliance with the hazardous waste regulatory program. The addition of aerosol cans as universal waste
will improve compliance with the hazardous waste regulations. In particular, handlers of hazardous waste
aerosol cans who are infrequent generators of hazardous waste and who might otherwise be unfamiliar with the more complex hazardous waste requirements but who generate hazardous waste aerosol cans, will be able to easily send this waste for proper management.
8. Other factors as may be appropriate. The 8 factors are designed to determine whether regulating a particular hazardous waste under the streamlined requirements for universal waste would improve the overall management of the waste. EPA considered states’ experience of already managing aerosol cans under state universal waste programs. Five states had adopted aerosol cans into their universal waste programs when EPA was determining if aerosol cans should be added as a federal universal waste. Those states’ experiences with management of aerosol cans under their universal waste programs provided a useful source of information to inform EPA’s judgment on whether to add aerosol cans to the national universal waste program. Information supplied to EPA from officials in those five states indicated that their addition of aerosol cans as universal waste improved the implementation of the hazardous waste program. According to the EPA, State officials from both California and Colorado stated that their aerosol can universal waste programs had been in effect since 2002 and they had not identified any problems with enforcing compliance with the standards. This information weighed in favor of concluding that management of aerosol cans under the Federal universal waste regulations would likely be successful.
Adding aerosol cans to the Universal Waste program in Wisconsin will benefit the wide variety of establishments generating and managing hazardous waste aerosol cans, including the retail sector, by providing a clear, protective system for managing discarded aerosol cans, easing regulatory burdens, promoting the collection and recycling of these cans, and encouraging the development of municipal and commercial programs to reduce the quantity of these wastes going to municipal solid waste landfills or combustors. Additionally, this rule includes clarifications to the requirements for universal waste destination facilities. (EPA Checklist 242).
In addition to adding aerosol cans to Wisconsin’s Universal Waste program, the proposed rule includes clarifying language on the management of intentionally broken or crushed lamps, including the management of hazardous waste residues. This language is aligned with federal requirements and is anticipated to be little to no impact on affected entities.
This rule will also clarify and provide consistency in requirements for universal waste receiving and recycling facilities.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: The rule revisions incorporate new RCRA universal waste regulations as promulgated on December 9, 2019, and adopted by EPA effective February 7, 2020, and clarify language to the current rule regarding the intentional crushing of universal waste lamps and the requirements for destination facilities.
The new rules will include the addition of aerosol cans as a universal waste in Wisconsin, which will be equivalent to federal regulations. This federal rule is optional for states to adopt but provides alternate methods for managing a hazardous waste stream by recycling instead of disposal. The streamlined universal waste regulations are expected to ease regulatory burdens on facilities that generate hazardous waste aerosol cans. To the extent possible, the department intends to adopt the content and format of the federal regulations, to ensure equivalency.
7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope: The department held an online preliminary public hearing on the statement of scope on October 6, 2022, at 2:00 p.m. Ninety-six people registered for the hearing and 73 members of the public attended the hearing.
There were no comments in support or opposition.
8. Comparison with Similar Rules in Adjacent States: Minnesota, Illinois, and Michigan have state-managed hazardous waste programs. In that capacity, these states are working to promulgate these rules and include these regulations as part of their EPA-authorized program. The status of this process in each state is found below.
