8. Comparison with Similar Rules in Adjacent States:
States have the option to seek approval from the EPA of a state CCR permit program that contains rules at least as protective as the federal rule. If a state chooses not to create its own permit program or to create a partial program, regulatory authority will continue under the EPA for all or a portion of CCR disposal activity.
Illinois will be seeking approval for a state permit program for CCR surface impoundments only, not landfills.
Iowa is undecided if or when it will seek approval for a state permit program.
Michigan is seeking approval for both surface impoundments and landfills and submitted an application to EPA in April 2020 for permit program approval.
Minnesota will not be seeking permit program approval.
Other states in EPA Region 5 are doing the following: Ohio is in the preliminary stages of rulemaking and will be seeking approval for both surface impoundments and landfills. Indiana recently indicated to EPA that it would be seeking approval for both surface impoundments and landfills.9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The proposed rule would include federal requirements from 40 CFR 257, Subpart D in order for Wisconsin to seek approval from EPA for a state CCR permit program for CCR landfills. This regulatory approach was chosen so that CCR landfill operators may apply one set of rules and interact with one regulatory agency. CCR landfills were regulated under Wisconsin law prior to the creation of the federal CCR rule in 2015. In coordination with all stakeholders and under review by the EPA, these rules were developed to ensure Wisconsin rules applied to CCR landfills are as protective as the federal rules. The DNR will continue to inspect CCR landfills and, under this rule, incorporate all requirements that meet nationwide landfill management standards for protection of human health and the environment. CCR materials contain contaminants like mercury, cadmium and arsenic. Without proper management, these contaminants can pollute waterways, groundwater, drinking water, and the air. By creating Wisconsin rules that are as protective as the federal rule, the DNR will continue to address risks from improper disposal of CCR.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: The proposed rule will affect four electric utility companies that are CCR landfill owners and operators. There are approximately 18 existing and new CCR landfill units under federal regulation, which when combined represent six solid waste landfill facilities under Wisconsin regulation. None of the electric utility companies meet the definition of a small business under s. 227.114(1), Wis. Stats.
11. Effect on Small Business (initial regulatory flexibility analysis):
The rule is not likely to have an impact on small businesses. CCR landfills are operated by electric utilities that do not meet the definition of a small business under s. 227.114(1), Wis. Stats. The proposed rule would modify Wisconsin regulations to incorporate requirements of the federal rule into Wisconsin’s existing rules to allow Wisconsin to apply for a CCR state permit program. Most of the changes in the proposed rule have already been implemented by the federal government and facilities have already complied with the federal rule. Any additional requirements as a result of the proposed rule are procedural requirements for initial permitting or related to the consolidation of state and federal requirements. Any additional cost as a result of this proposed rule will be related to a facility’s plan preparation for initial permitting and DNR review of plans or annual reports.
12. Agency Contact Person: Valerie Joosten, Department of Natural Resources, Northeast Region Headquarters, 2984 Shawano Ave., Green Bay, WI 54313; Valerie.Joosten@wisconsin.gov; (920) 366-4158 13. Place where comments are to be submitted and deadline for submission:
A public comment period for the rule occurred from October 4 to November 4, 2021, with a public hearing held on October 28, 2021.
The consent of the Attorney General will be requested for the incorporation by reference of alternative design requirements. Under the proposed rule, requests for alternative designs for CCR landfills must include a demonstration that the alternative design meets the federal requirements located under 40 CFR part 257 Subpart D dated April 17, 2015. RULE TEXT
Section 1 NR 500.02 (1) is renumbered NR 500.02 (1) (a) and amended to read:
NR 500.02 Applicability. (1) (a) Except as provided under par. (b) and except as otherwise provided, this chapter governs all solid waste facilities as defined in under s. 289.01 (35), Stats., except hazardous including all CCR landfills and expansions. (b) This chapter does not govern any of the following:
1. Hazardous waste facilities as defined in under s. 291.01 (8), Stats., and regulated under chs. NR 660 to 679; metallic. 2. Metallic mining operations for nonferrous minerals as defined in under s. 293.01 (9), Stats., and regulated under ch. NR 182; and metallic. 3. Metallic mining operations for ferrous minerals as defined in under s. 295.41 (26), Stats., including mining wastes and mining waste sites as defined in under s. 295.41 (30) and (31), Stats., and regulated under subch. III of ch. 295, Stats. Section 2 NR 500.03 (2m), (19m), (26b), (26f), (26k), (26p), (26s), (26w), (26y), (60m), (76m) are created to read:
NR 500.03 (2m) “Active portion” means that part of a CCR landfill that has received or is receiving CCR or non-CCR waste and that has not completed closure in accordance with ch. NR 506. (19m) “Beneficial use of CCR” means the utilization of a solid waste or an industrial by-product in a “productive manner,” which has the meaning given in s. NR 538.03 (10). (26b) “CCR” means coal combustion residuals, including fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated from burning coal for the purpose of generating electricity by electric utilities and independent power producers.
(26f) “CCR fugitive dust” means solid airborne particulate matter that contains or is derived from CCR, emitted from any source other than a stack or chimney.
(26k) (a) “CCR landfill” means a landfill that receives CCR, including nonmetallic mining sites under s. 295.11 (6), Stats., that receive CCR, and any area of land or excavation that receives CCR, including sand and gravel pits and quarries that receive CCR, CCR piles, and any practice that does not meet the definition of a beneficial use of CCR under s. NR 500.03 (19m). (b) “CCR landfill” does not include a CCR surface impoundment or municipal solid waste landfill that receives CCR.
(26p) (a) “CCR pile” means any non-containerized accumulation of solid, nonflowing CCR that is placed on the land.
(b) “CCR pile” does not include CCR that is stored for beneficial use of CCR or beneficially used under ch. NR 538. (26s) “CCR surface impoundment” means a natural topographic depression, man-made excavation, or diked area that is designed to hold an accumulation of CCR and liquids, and the unit treats, stores or disposes of CCR.
(26w) (a) “CCR unit” means any CCR landfill, CCR surface impoundment, lateral expansion of a CCR landfill, or a combination of more than one of these units.
(b) “CCR unit” includes both new and existing units, unless otherwise specified.
(26y) “CCR well” means a designated well installed at a CCR landfill whose location and depth have been approved by the department specifically for monitoring purposes under Subtitle D.
(60m) “Destruction or adverse modification” means a direct or indirect alteration of critical habitat that appreciably diminishes the likelihood of the survival and recovery of threatened or endangered species using that habitat.
(76m) (a) “Existing CCR landfill” means a CCR landfill that receives CCR both before and after October 19, 2015.
(b) “Existing CCR landfill” includes a CCR landfill for which construction commenced prior to October 19, 2015, and which receives CCR on or after October 19, 2015, where all of the following occurred:
1. The landfill owner or operator obtained all federal, state, and local approvals or permits to begin physical construction.
2. The landfill had a continuous on-site, physical construction program that began prior to October 19, 2015.
Section 3 NR 500.03 (96) is amended to read:
NR 500.03 (96) “Groundwater” means any waters of the state, as defined in s. 280.01(2) 281.01 (18), Stats., occurring in a saturated subsurface geological formation of rock or soil. Section 4 NR 500.03 (106m), (121m), (152m), (189m), (197) (Note), (246m), (254g), and (254r) are created to read:
(106m) “Hydraulic conductivity” means the rate at which water can move through a permeable medium and is also called the coefficient of permeability.
(121m) “Lateral expansion of a CCR landfill” means a horizontal expansion of the waste boundaries of an existing CCR landfill made after October 19, 2015.
(152m) (a) “New CCR landfill” means a CCR landfill or lateral expansion of a CCR landfill that first receives CCR after October 19, 2015.
(b) “New CCR landfill” includes a CCR landfill or lateral expansion of a CCR landfill that commences construction after October 19, 2015, where all of the following occurred:
1. The landfill owner or operator obtained all federal, state, and local approvals or permits to begin physical construction.
2. The landfill had a continuous on-site, physical construction program that began after October 19, 2015.
(189m) “Recognized and generally accepted good engineering practices” means engineering maintenance or operation activities based on established codes, widely accepted standards, published technical reports, or a practice widely recommended throughout the industry. Such practices generally detail approved ways to perform specific engineering, inspection, or mechanical integrity activities.
(197) Note: See EPA Publication SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Chapter 9 (https://www.epa.gov/hw-sw846) dated September 1986 for a discussion and examples of representative samples. (246m) “Uppermost aquifer” means the geologic formation nearest the natural ground surface of a CCR landfill capable of yielding usable quantities of groundwater to wells or springs, as well as lower aquifers that are hydraulically interconnected with the uppermost aquifer within a CCR landfill’s property boundary, as measured at a point nearest to the natural ground surface to which the aquifer rises during the wet season.
(254g) “Washout” means the carrying away of solid waste by waters of a regional flood.
(254r) “Waste boundary” means a vertical surface located at the hydraulically downgradient limit of a CCR unit and extends down into the uppermost aquifer.
Section 5 NR 500.035 is created to read:
NR 500.035 CCR landfill requirements. (1) The CCR landfill requirements included in chs. NR 500 to 538 apply to an owner or operator of a new or existing CCR landfill, including any lateral expansion of a new or existing CCR landfill that disposes or otherwise engages in solid waste management of CCR generated from the combustion of coal at electric utilities and independent power producers. An electric utility or independent power producer is in operation if it is generating electricity that is provided to electric power transmission systems or to electric power distribution systems on or after October 19, 2015. Unless otherwise provided in chs. NR 500 to 538, these requirements also apply to any disposal unit that is not a CCR surface impoundment located off-site of the electric utility or independent power producer. An off-site disposal facility is in operation if it is accepting or managing CCR on or after October 19, 2015. The CCR landfill requirements in chs. NR 500 to 538 also apply to any CCR disposal practice that does not meet the definition of a beneficial use of CCR. (2) The CCR landfill requirements included in chs. NR 500 to 538 do not apply to any of the following: (a) A CCR landfill that ceased receiving CCR prior to October 19, 2015.
(b) An electric utility or independent power producer that has ceased producing electricity prior to October 19, 2015.
(c) Any waste, including fly ash, bottom ash, boiler slag, and flue gas desulfurization materials, generated at a facility that is not part of an electric utility or independent power producer, such as a manufacturing facility, university, or hospital.
(d) Fly ash, bottom ash, boiler slag, and flue gas desulfurization materials, generated primarily from the combustion of fuels and fossil fuels other than coal, for the purpose of generating electricity unless the fuel burned consists of more than 50 percent coal on a total heat input or mass input basis, whichever results in the greater mass feed rate of coal.
(e) A practice that meets the definition of a beneficial use of CCR.
(f) CCR placement at active or abandoned underground or surface coal mines.
(g) A municipal solid waste landfill that receives CCR.
(h) A CCR surface impoundment.
(3) Compliance with the CCR landfill requirements in chs. NR 500 to 538 does not affect the need for the owner or operator of a CCR landfill or lateral expansion of a CCR landfill to comply with all other applicable federal, state, tribal, or local laws or other requirements. Section 6 NR 500.05 (intro.) is amended to read:
NR 500.05 General submittal requirements. Unless otherwise specified, all submittals for review and approval of any initial site report, feasibility report, plan of operation site investigation report, remedial action options report, construction documentation report, or closure plan, or any modifications to those plans, shall include all of the following:
Section 7 NR 500.08 (4) is amended to read:
NR 500.08 (4) Exemptions from solid waste rules. Exemptions from the requirements of chs. NR 500 to 538 may be granted in writing by the department in special cases except as otherwise provided. A person may apply for an exemption by providing the department with a written request along with the appropriate documentation which that demonstrates that the proposal will not cause environmental pollution as defined in under s. 299.01 (4), Stats. The department shall take into account such factors as the population of the area being served, the amount of waste being generated, the geologic and hydrogeologic conditions at the facility, the design of the facility, the operational history of the facility, the physical and chemical characteristics of the waste, and any other information which that may be appropriate. The department shall review and make a written determination on the exemption request within 65 business days after receipt of a complete request and the appropriate review fee under ch. NR 520 unless a different time period is provided by law. An exemption may not be granted if it will result in noncompliance with the minimum federal requirements under Subtitle D. Section 8 NR 504.02 (1) is renumbered NR 504.02 (1) (a) and amended to read:
NR 504.02 Applicability. (1) (a) Except as provided in par. (b) and except as otherwise provided, this chapter governs all landfills as defined in under s. 289.01 (20), Stats., except landspreading including all CCR landfills and expansions. (b) This chapter does not govern any of the following:
1. Landspreading facilities regulated under ch. NR 518, small demolition waste landfills regulated under ch. NR 503, hazardous waste facilities as defined in under s. 291.01 (8), Stats., and regulated under chs. NR 660 to 679; metallic. 2. Metallic mining operations for nonferrous minerals as defined in under s. 293.01 (9), Stats., and regulated under ch. NR 182; and metallic. 3. Metallic mining operations for ferrous minerals as defined in under s. 295.41 (26), Stats., including mining wastes and mining waste sites as defined in under s. 295.41 (30) and (31), Stats., and regulated under subch. III of ch. 295, Stats. Section 9 NR 504.10 (intro.) is amended to read:
