CR 24-037 Rule Text

ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD

REPEALING, RENUMBERING AND AMENDING, AMENDING, REPEALING AND RECREATING AND CREATING RULES

The Wisconsin Natural Resources Board proposes an order to repeal NR 661.0001 (3) (L) (Note), 661.0011 (3) and 664.0013 (3) (b) (Note) ; to amend NR 660.01 (2) (f), 660.02 (4) (b), 660.07 (1), (2), (3), and (3) (Note), 660.10 (46) and (58) (Note), 660.20, 660.22, 660.40 (1) (intro.), 660.41 (intro.), 661.0001 (1) (a), and (3) (L), 661.0003 (1) (b) 1., 661.0024 (1), 661.0033 (6) Table, 662.010 (12) (b) (Note 1), 662.014 (1) (f) 3., 662.016 (2) (intro.), 662.017 (1) (g) 1. a., 662.020 (1) (a), 662.082 (5) (b), 662.200 (10), 662.212 (Intro.) and (5) (c), 662.213 (1) (a), 662.232 (1) (e) and (2) (d) (intro.) and 2. c., 663.12 (1), 663.13 (1) (f), 664.0001 (7) (c), 664.0072 (1) (c), 664 Subchapter F (title), 664.0090 (1) (b), 664.0097 (1) (a) (intro.), 664.0111 (3), 664.0143 (2) (g) and (h), 664.0151 (8) 14., (11) and (13) (a) Section 8 (c), 664.0221 (5) (b) 1. b., 664.0223 (2) (a), 664.0252 (2), 664.0301 (5) (b) 1. b., 664.0302 (2), 664.0304 (2) (a), 664.0314 (5) (b), 664.0573 (13) (b) and (c), 664.1030 (2) (c) and (3), 664.1080 (3), 664.1101 (2) (c) 3. and (4) (intro.), 664.1102 (1), 664 Appendix I Table 1, 665.0110 (2) (d), 665.0112 (2) (e) and (4) (d), 665.0140 (2) (intro.) and (b), 665.0194 (2) (a), 665.0221 (4) (b) 1. a. and b., 665.0224 (2) (a), 665.0259 (2) (a), 665.0301 (4) (b) 1. b., 665.0303 (2) (a), 665.0314 (6) (b), 665.1035 (2) (b) 1., 665.1084 (2) (c) 2. c., 665.1101 (2) (c) 3., 665 Appendix I Table 1 and Table 2 (b) 6. (d), 665 Appendix VI Table, 666.100 (2) (a), (3) (c), and (4) (c) 1. a., 666.102 (1) (b) 6., (5) (c) 1. e., (5) (f) 2. b. 2), and (5) (h) 3., 666.103 (2) (b) 5. b. 2), (e) 2. a., (3) (a) 1., 9., a., (d) 4. c. 1), and (7) (a) 1., 666.106 (4) (a), 666.109 (2) (intro.), 666.502 (8) (intro.) and (9) (b) 2. a. (intro.), 666.504 (2) (intro.) and (a), 666.505, 666.506 (2) (c) (intro.), 666.507 (2), 666.510 (3) (d) 5. (intro.), 666.903 (3) (a) and (7) (c), 666.904 (2) (a), 666.904 (5) (c), 666.905 (intro.), 666.905 (3) (c) (Note 1), 666 Appendix IV Table, 666 Appendix V Table, 668.04 (1) (c) (intro.), 668.07 (1) (d) Table 8., (3) (b), and (4) (b), 668.14 (2) and (3), 668.42 (1) Table 1, 668.45 (4) Table 1 B. 2. a., 668.48 Table, 668.50 (3), 670.001 (3), 670.018 (2) and (7), 670.041 (3), 670.042 (1) (b) and (2) (f) 1. (intro.), 670.050 (1), 670.235 (1) (b) (intro.) and (2) (b), 670 Appendix I Table L. 9. and O. 1., 679.10 (2) (b) (intro.), 679.11 (intro.) and Table 1, and 679.42 (3); to repeal and recreate NR 666.905 (1) (f); and to create NR 660.10 (73m), 661.0031 (1) Table (Note), 662.011 (4) (b) 3., 662.233 (Note), 664.0013 (2) (h) 2. (Note), 666.904 (2) (f), 666.905 (3) (c) (Note 2), and 679.01 (12) (Note) relating to technical corrections of state hazardous waste regulations and affecting small business.

WA-14-21

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, 291.07, 291.25, and 299.53, 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 U.S. Environmental Protection Agency (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 of Natural Resources (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 necessary 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 RCRA 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 utilize 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. Additionally, the licensing of treatment, storage and disposal facilities are regulated in s. 291.25, Stats. Finally, the department also relies in part on rulemaking authority in s. 299.53, Stats., to regulate used oil.

4. Related Statutes or Rules: Chapters 160, 287, 289, 292, and 299, Stats., and chs. NR 2, 140, 141, 500 to 538, 700 to 754, and 812, Wis. Adm. Code.

5. Plain Language Analysis: This rule incorporates technical corrections and clarifications in federal and Wisconsin code. Corrections consist of missing words and text in the code, typos and spelling misprints, and citation errors. Clarifications of existing rules will align Wisconsin language with federal code.

6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: This rule will correct errors in state regulations. The state technical corrections are not more stringent than federal regulation and consist of missing words and text in the code, typos and spelling misprints, and citation errors. Technical corrections impact chs. NR 600 to 679, Wis. Adm. Code. The rule will also capture federal technical corrections that EPA is aware of the need for and may propose in a future checklist and rule.

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: Many of the technical corrections were promulgated federally in 2006 and are listed in EPA Checklist 214. Iowa is not authorized to implement a hazardous waste program, and as a result they are not required to adopt these changes. Illinois and Michigan have adopted these corrections. Michigan has been authorized by the EPA to enforce the requirements and Illinois is not authorized for Checklist 214. Minnesota has not adopted the technical corrections in this checklist. The remaining corrections and clarifications are errors found in federal and in Wisconsin code.

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 ensure RCRA program authorization through the EPA. Because many of the corrections were gathered from EPA checklist 214, the corresponding federal register (71 FR 40254) states that the corrections do not create new regulatory requirements. Thirty-nine states have adopted the federal correction rule promulgated in July of 2006. Thirty states are authorized by the EPA to implement the rule. The rest of the corrections and clarifications are spelling and grammatical errors existing in Wisconsin code.

The department solicitated comments from the regulated community as part of the development of this rule.

10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: The economic impact is expected to be minimal. Most of the corrections are minor in nature and should not result in major changes to current practices. The adoption of the technical corrections and clarifications could, in principle, affect all regulated classes of generators; transfer, storage and disposal facilities; and universal waste and used oil managers. These entities are varied in nature and the rule will apply to many different North American Industry Classification System (NAICS) classifications.

General categories are grouped in the following NAICS codes:

•   Hazardous Waste Treatment and Disposal Facilities (NAICS 562211)

•   Hazardous Waste Collection (NAICS 562112)

•   Solid Waste Landfills (NAICS 562212)

•   Other Nonhazardous Waste Treatment and Disposal (562219)

•   All Other Miscellaneous Waste Management Services (562998)

According to 71 FR 40254 published July 14, 2006, “this rule does not create new regulatory requirements; rather, the rule corrects typographical errors, misspellings, punctuation mistakes, missing words, nomenclature errors, incorrect citations, and similar technical mistakes made in numerous final rules” and “will not have a significant economic impact on a substantial number of small entities”.

11. Effect on Small Business (initial regulatory flexibility analysis): The proposed rule will have little to no impact and will most likely result in a cost savings for small businesses. Over ten thousand generators in Wisconsin notify the department of their activities and are affected by the hazardous waste regulations. Very small quantity generators are not required to notify the department of their activities and therefore are not known to the department. Other regulated facilities impacted include treatment, storage and disposal facilities, transporters, universal waste handlers, and used oil managers. The effect of the technical corrections and clarification rule package, while anticipated not to have an economic impact, will apply to all hazardous waste activities. No new regulations are being created as a result of this rule.

12. Agency Contact Person: Cathy Baerwald, Department of Natural Resources, Southeastern Region Headquarters, 1027 W. St. Paul Ave., Milwaukee, WI 53233-2641; [e-mail]; [phone]

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 email to:

Cathy Baerwald

Department of Natural Resources

Southeastern Region Headquarters

1027 W. St. Paul Ave.

Milwaukee, WI 53233-2641

[e-mail]

[phone]

Comments may be submitted to the department contact person listed above or to [e-mail] until the deadline given in the upcoming notice of public hearing. The notice of public hearing and deadline for submitting comments will be published in the Wisconsin Administrative Register and on the department’s website, at https://dnr.wisconsin.gov/calendar. Comments may also be submitted through the Wisconsin Administrative Rules Website at https://docs.legis.wisconsin.gov/code/chr/active.

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RULE TEXT

Section 1   NR 660.01 (2) (f) is amended to read:

NR 660.01 (2) (f) Section NR 660.22 references procedures for petitioning EPA to amend subch. D of ch. NR 661 to exclude a waste from a particular facility.

Section 2   NR 660.02 (4) (b) is amended to read:

NR 660.02 (4) (b) EPA will make any cathode ray tube export documents prepared, used, and submitted under ss. NR 661.0039 (1) (e) and 661.0041(1), and any hazardous waste export, import, and transit documents prepared, used, and submitted under ss. NR 662.082, 662.083, 662.084, 663.20, 664.0012, 664.0071, 665.0012, 665.0071, and 667.0071 available to the public under this section when these electronic or paper documents are considered by EPA to be complete and final documents. These submitted electronic and paper documents related to hazardous waste exports, imports and transits, and cathode ray tube exports are considered by EPA to be final documents on March 1 of the calendar year after the related cathode ray tube exports or hazardous waste exports, imports, or transits occur.

Section 3   NR 660.07 (1), (2), (3), and (Note) are amended to read:

NR 660.07 (1) New activities. Any person who generates or transports hazardous waste, or owns or operates a facility for the treatment, storage or disposal of hazardous waste, shall notify the department of the activities using EPA Form 8700-12 and follow the Form 8700−12 instructions related to completing the notification.

(2) Existing activities. Any person who, after the effective date of a rule that makes the person subject to regulation under chs. NR 660 to 679, generates or transports hazardous waste, or owns or operates a facility for the treatment, storage or disposal of hazardous waste shall notify the department of the activities using EPA form 8700-12 within 90 days of the effective date of the rule, unless the person has previously notified EPA or the department. The person shall also follow the Form 8700−12 instructions related to completing the notification.

(3)  Separate forms. A separate EPA notification form shall be submitted to the department for each generation site, transportation service, including 10-day transfer sites, and hazardous waste facility.

Note: EPA notification form Form 8700-12 may be obtained from: http://www.epa.gov/wastes/inforesources/data/form8700/8700-12.pdf or the department by E-mail: [e-mail] or phone: [phone].

Section 4   NR 660.10 (46) and (58) (Note) are amended to read:

NR 660.10 (46) “Final closure” means the closure of all hazardous waste management units at the facility according to all applicable closure requirements so that hazardous waste management activities under chs. NR 664 and 665 are no longer conducted at the facility unless subject to the provisions in under ss. NR 662.015 662.016 and 662.017.