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 insert date.

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”.