CR 24-037 Rule Text

The statement of scope for this rule, SS 062-22, 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 October 31, 2024.

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 adopts 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), and (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. (intro.) and 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), 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), 670.025 (5) (c), 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), 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, 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).

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 RCRA and the methods of treatment or disposal of particular hazardous wastes.

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. These revisions include missing words and text in the code, and correct typos, 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 correct 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 has identified and may propose in a future 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 2012 and are listed in EPA Checklist 228, respectively. Illinois and Michigan have adopted these corrections. Minnesota has not currently adopted the technical corrections in this checklist. Iowa does not have an authorized state program to implement hazardous waste regulations, EPA enforces federal code in this state. The remaining corrections and clarifications are spelling and grammatical errors existing in current 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 significant 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 (final regulatory flexibility analysis): Over ten thousand generators in Wisconsin are known to operate under the hazardous waste regulations. Very small quantity generators are not required to notify the department of their activities, so there may be more businesses operating under the hazardous waste regulations than noted above. Other regulated facilities that may be 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: