The statement of scope for this rule, SS 061-22 was approved by the Governor on June 30, 2022, published in Register No. 799A3 on July 18, 2022, and approved by the Natural Resources Board on October 26, 2022. This rule was approved by the Governor on insert date. 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
