4. Related Statutes or Rules: Chapters 287, 289, 291, 292, and 299, Stats., and chs. NR 2, 140, 141, 149, 500 to 538, 662 to 670, 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 EPA in the following Federal Register, to the extent allowed by state law:
Modernizing Ignitable Liquids Determinations, July 7, 2020 (85 FR 40594)
This rule updates the flash point test methods from 1978, 1979, and 1980 (required for determining if a liquid waste is an ignitable hazardous waste) to include current ASTM International (ASTM) standards. The rule will also define the term “aqueous” as “50% water by weight.” Included in the rule are updates to correct cross references to U.S. Department of Transportation (DOT) regulations and to remove obsolete information in the ignitability regulation. Finally, the rule contains alternatives to the use of mercury thermometers in the air sampling and stack emissions methods 0010, 0011, 0020, 0023A, and 0051 in SW-846. (Relaxation; EPA Checklist 243).
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: The rule revisions incorporate new RCRA hazardous waste regulations as promulgated on July 7, 2020, and adopted by EPA effective September 8, 2020, and clarify definitions and DOT language in the current rules.
The EPA directs states to comply with federal RCRA hazardous waste regulations, and Wisconsin state statutes direct the department to adopt and administer rules that are at least as stringent as the EPA’s RCRA regulations. The rule would capture promulgated federal hazardous waste regulations within state administrative rules and would enable the department to retain EPA authorization to administer the federal hazardous waste program in Wisconsin.
The current ignitability test method required in state rules refers to outdated standards and utilizes instrumentation that is no longer readily commercially available. For example, the standards require the use of mercury thermometers, which are becoming more difficult to acquire and calibrate due to their use and availability being phased out for environmental, health, and safety concerns. The adoption of the Modernizing Ignitable Liquid Determinations final federal rule would expand existing allowable test methods while retaining the current allowable procedures to provide entities increased flexibility.
The exclusion for specific aqueous alcohols from regulation as ignitable hazardous waste has been in place at the federal and state levels to allow some waste streams, such as latex paints and alcoholic beverages, to fall outside of RCRA regulation. These waste streams have low flash points but are unable to sustain combustion. The proposed rule change defines “aqueous” as “50% water by weight” and narrows the types of alcohol that would qualify as a hazardous waste, thereby potentially reducing the applicability of these requirements to certain entities. This rule would have no effect on the applicability of the discharge prohibitions presented in the Clean Water Act (CWA) national pretreatment standards for existing and new sources of pollution.
The EPA updates to the ignitability regulations correct cross references to DOT regulations and remove obsolete information. Specifically, the proposed rule change would modify the criteria for ignitable compressed gases and oxidizers to adhere more closely to the corresponding definitions in the DOT Hazardous Materials Regulations.
The rule revisions to incorporate both new and revised federal regulations as adopted by EPA will allow the department to maintain federal authorization of the hazardous waste program for these rules and to maintain program primacy. The proposed rule revisions are intended to meet the requirements of RCRA.
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 an equivalent to this rule and include these regulations as part of their respective EPA authorized programs. The status of rulemaking in each state is found below. Iowa does not have RCRA hazardous waste program authorization from EPA. Instead, EPA’s Region 7 office administers and enforces the RCRA hazardous waste management requirements in Iowa.
Minnesota, Michigan, and Illinois have not adopted the Modernizing Ignitable Liquid Rule.
Summary of neighboring states | Iowa | Illinois | Michigan | Minnesota |
Rule Change - Date | Adopted | EPA Authorized | Adopted | EPA Authorized | Adopted | EPA Authorized | Adopted | EPA Authorized |
Modernizing Ignitable Liquids Determinations, July 7, 2020. Checklist 243 | N/A | N/A | N | N | N | N | N | N |
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The proposed rules will maintain consistency with federal rules and allow RCRA program authorization by the EPA. Currently 15 states have adopted the Modernizing Ignitable Liquids Determinations rule. The updated language will ease regulatory requirements and provide alternate methods and equipment for making ignitable waste determinations, clarify the definition of aqueous solutions and ensure consistency with DOT requirements. The department solicited comments from businesses interested in the Modernizing Ignitable Liquids Determination as part of the development of this rule.
The proposed language will align with language in the Federal Register (85 FR 40594), making it easier for facilities to understand and comply with the requirements.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: The determination that these rules will have little or no impact on small businesses was reached through analysis of the reports created by EPA during the promulgation process at the federal level, and the evaluation of impacted state entities and business sectors. Each federal revision contains an economic impact assessment, fiscal estimate, and language discussing which sectors, businesses, and entities will be affected by the change. This information was published in the Federal Register on July 7, 2020 (85 FR 40594). While small businesses in Wisconsin will be subject to the hazardous waste regulations, this rule is considered a relaxation and clarification, and as such will have little to no adverse economic impacts on such businesses.
This rule increases flexibility in the regulations. Small businesses will have the option to follow the Modernizing Ignitable Liquid Determinations requirements instead of the more stringent hazardous waste regulations. Because the rule will allow alternate methods for ignitable determinations, the cost of replacing outdated equipment will be eliminated or reduced. It is anticipated that facilities will not be affected by the change in definition of aqueous waste and cross-referencing with DOT language because these rules do not create new requirements or change existing requirements.
11. Effect on Small Business (initial regulatory flexibility analysis): The proposed rule will have little to no impact and will most likely create a cost savings for small businesses. Laboratories performing flash point and ignitability tests will be able to use updated testing methods. The cost of replacing and repairing outdated instrumentation and equipment will be reduced. There are 16 certified and 2 registered laboratories with the state that are accredited for flashpoint testing, and 10 treatment, storage, and disposal facilities in Wisconsin that may potentially test ignitable waste streams to ensure proper waste determinations, which would be impacted by the rule.
There would be no fiscal impact of cross-referencing hazardous waste regulation language with DOT language.
Changing the definition of an aqueous waste will likely reduce the cost of disposing of alcohols as hazardous waste.
12. Agency Contact Person: Cathy Baerwald, Department of Natural Resources, Southeastern Region Headquarters, 1027 W. St. Paul Ave., Milwaukee, WI 53233-2641; Catherine.Baerwald@wisconsin.gov; (414) 333-6805 13. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or by email to:
Cathy Baerwald
Department of Natural Resources
Southeastern Region Headquarters
1027 W. St. Paul Ave.
Milwaukee, WI 53233-2641
(414) 333-6805
The consent of the Attorney General will be requested for the incorporation by reference of
— ASTM D8174-18 Standard Test Method for Finite Flash Point Determination of Liquid Wastes by Small Scale Closed Cup Tester, incorporated by reference for s. NR 661.0021 (1). This test method covers the procedure for a flash point test, within the range of –20 to 70 °C, of liquid wastes using a small-scale closed cup tester. This test method is not applicable for liquid waste that forms a surface film. — ASTM D8175-18, Standard Test Method for Finite Flash Point Determination of Liquid Wastes by Pensky-Martens Closed Cup Tester, incorporated by reference for s. NR 661.0021 (1). This test method covers the procedure for a finite flash point test, within the range of 20 to 70 °C, of liquid wastes using a manual or automated Pensky-Martens closed cup tester. This test method contains two procedures and is applicable to liquid waste, liquid phase(s) of multi-phase waste, liquid waste with suspended solids, or liquid waste that tends to form a surface film under test conditions. — ASTM E681-85, Standard Test Method for Concentration Limits of Flammability of Chemicals (Vapors and gases), incorporated by reference for s. NR 661.0021 (1). This test method is used to determine the upper and lower concentration limits of flammability for chemicals having sufficient vapor pressure to form flammable mixtures with air. — Method 1010B, December 2018, incorporated by reference for s. NR 661.0021. Method 1010B lists the Pensky-Martens flash point methods, which are ASTM Standards D93–79, D93–80, and D8175–18. — Method 1020C, December 2018, incorporated by reference for s. NR 661.0021. lists the Setaflash (small-scale) closed cup flash point methods, which are the ASTM Standards D3278–78 and D8174–18. ASTM D8174–18 is a test method to determine the flash point of liquid wastes using a small-scale (Setaflash) apparatus. ASTM D8175–18 is a test method used to determine the flash point of liquid wastes using a Pensky-Martens apparatus. — Method 0011, August 2018 and Update I, incorporated by reference for ch. NR 666 Appendix IX. Method 0011 is a method for collection of selected ketones and aldehydes from an emission source. — Method 0023A, August 2018 and Update II, incorporated by reference for s. NR 666.104 and ch. NR 666 Appendix IX. Method 0023A is a method for collection of polychlorinated dibenzo-p-dioxins and polychlorinated dibenzofuran from an emission source. — Method 0051,Revision 1, August 2018 , incorporated by reference for s. NR 666.107 and ch. NR 666 Appendix IX. Method 0051 is a method for collection of hydrogen chloride and chlorine in stack gas emission samples from hazardous waste incinerators and combustors. — Method 1330A, Extraction Procedure for Oily Wastes, dated July 1992 and in Update I, incorporation by reference approved for appendix IX to part 261.
— Method 9071B, n-Hexane Extractable Material (HEM) for Sludge, Sediment, and Solid Samples, dated April 1998 and in Update IIIA, incorporated by reference for ch. 661 Appendix IX. This method may be used to quantify low concentrations of oil and grease in soil, sediments, sludges, and other solid materials amenable to chemical drying and solvent extraction with n-hexane. Method 9071 employs n-hexane as the extraction solvent with Soxhlet extraction and the results of this method are termed “n-hexane extractable material (HEM).” “HEM” is used synonymously with “oil and grease. Method 9071 is suitable for extracting relatively non-volatile hydrocarbons, vegetable oils, animal fats, waxes, soaps, greases, biological lipids, and related materials and is not recommended for measuring materials that volatilize at temperatures below 85 degrees Celsius. Steel Tank Institute, “Standards for Dual Wall Underground Storage Tanks,” 2006, incorporated by reference for s. NR 661.0193 (4). These standard addresses underground double containment (atmospheric-type) vessels with built-in interstitial monitoring capability for the purpose of giving advance notice to avoid environmental contamination. — Method 1311, July 1992, and Update I, incorporated by reference for ss. NR 661.0024, 668.07, 668.40 and 661 Appendix IX. This method is used for assessing the presence of an ignitable liquid for wastes that do not yield a free liquid phase using Method 9095 (i.e., Paint Filter Liquids Test or PFLT). RULE TEXT+
Section 1 NR 660.11 (1) and (Note) are amended to read:
NR 660.11 (1) This section is adopted under ss. 227.21 (2) (b) and 291.05, Stats., to incorporate by reference testing, monitoring, and other technical standards, established by the federal government and technical societies and organizations, to which reference is made under chs. NR 660 to 670 679. Some materials Materials that are incorporated by reference under other references are hereby incorporated by reference and made a part of this subsection. Note: Copies of these materials are available for inspection in the offices office of the Department of Natural Resources, Madison, Wisconsin, the Legislative Reference Bureau, or may be obtained for personal use at the addresses noted.
Section 2 NR 660.11 (2), (3), (4), (5), (6) and (7) are repealed and recreated to read:
NR 660.11 (2) The following materials are available for purchase from the American Society for Testing and Materials, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428–2959, (877) 909-2786, www.astm.org.: (a) ASTM D93–79, Standard Test Methods for Flash Point by Pensky-Martens Closed Cup Tester, incorporated by reference for s. NR 661.0021. (b) ASTM D93–80, Standard Test Methods for Flash Point by Pensky-Martens Closed Cup Tester, incorporated by reference for s. NR 661.0021.
