The Wisconsin Natural Resources Board proposes an order to repeal NR 661 - Appendices II and III, 664.0056(9), 664.1061(2)(a), 665.0056(9), 665.0200 (note), 665.0314(1), 665.1061(2)(a), 665.1061(4), 665.1062(b), 668 - Appendix VIII, 670.014(1)(Note), 679.10(2)(a)2.(Note), 679.44(3)(Note), 679.63(3)(Note), to renumber, NR 661.32(intro.), 662.194(4) to (6), 664.0065(10), 664.1061(2)(b) and (c), 665.0056(10), 665.0314(2) to (7), 665.1061(2)(b) and (c), 665.1062(1)(a), 665.1102(3), 666.903(3) to (17), 673.09(1), to amend, NR 660.10(43)(b) and (70m), 660.10(107), 660.10(133)(c) and (139), 660.31(2), 661.03(1)(b)5., 661.04(1)(i)3., 661.04(6)(i)(intro.), 661.07(1)(a), 661.09(3), 661.21(1)(a), 661.22(1), 661.32(1) table., 661.35(2)(b)3., 661.38(3)(g)(intro.), 661 - Appendix I (6) and (7), 661 - Appendix VII, 661 - Appendix VIII, 662.041(3)(f), 662.190(1), 662.194(3)(intro.), 662.220(5)(a), 662.220(6)(intro.) and (a), 663.10(1) and (4), 664.0001(7)(k)3., 664.0052(2), 664.0072(6)(a), 664.0073(2)(intro.)(a), (b), (f), (h) and (j), 664.0098(4) and (7)(b) and (c), 664.0099(6) and (7), 664.0100(7), 664.0113(5)(e), 664.0115, 664.0120, 664.0143(6)(a)2. and (11), 664.0144(2)(intro.), 664.0145(6)(a)2. and (11), 664.0147(5), 664.0151(7), 664.0190(1), 664.0191(1) and (2)(e)2., 664.0192(1)(intro.) and (2)(intro.), 664.0193(9)(b), 664.0196(6), 664.0251(3)(intro.), 664.0314, 664.0340(2)(a), 664.0343(1)(b), 664.0347(4), 664.0554(3)(b), 664.0571(1) to (3), 664.0573(1)(d)2. and (7), 664.0574(1), 664.1034(3)(a)2. and 4., (4)(a)3. and (6), 664.1062(1), 664.1063(4)(b), 664.1101(3)(b), 664 – Appendix IX, 665.0001(3)(n)3., 665.0052(2), 665.0072(6)(a), 665.0073(2)(intro.)(a), (b), (f), (g) and (h), 665.0090(4)(a) and (c), 665.0093(4)(b) and (e), 665.0113(5)(e),665.0115, 665.0120, 665.0143(5)(a)2. and (10), 665.0145(5)(a)2. and (10), 665.0147(5), 665.0190(1), 665.0191(1) and (2)(e)2., 665.0192(1)(intro.) and (2)(intro.), 665.0193(9)(b), 665.0196(6), 665.0221(1), 665.0224(1), 665.0259(1), 665.0301(1), 665.0303(1), 665.0314(1), (3) and (6)(intro.), 665.0340(2)(a), 665.0441(1) to (3), 665.0443(1)(d)2. and (7), 665.0444(1), 665.1034(3)(a)2. and 4., (4)(a)3., and (6), 665.1063(4)(b), 665.1081(25), 665.1084(1)(c)2.c., 665.1084(2)(c)2.c., 665.1084(3)(c)1., 665.1101(3)(b), 666.023(2), 666.080(1)(a) to (e), 666.100(2)(a), 666.100(4)(a)2., 666.102(2)(a) and (5)(j), 666.103(4) and (11), 666.106(1), 666.112(2)(a)(intro.) and (b)1., 666.205(1)(a)4., 666.902(3), 666.903(1)(Note), 666.903(11)(intro.) and (a), (12) and (13), 666.905(1)(intro.), 666.905(1)(d) and (f)(intro.), 666.905(3)(c), 666 - Appendix IX, Section 1.0 and Section 4.0 (intro.), 666 - Appendix IX, Section 9.3, 666 Appendix IX, Sections 10.3 (2); 10.5 (1) 5th bullet; (2) 2nd bullet; (5) 3rd and 5th bullets; 10.6 (1) 4th bullet and (5) 3rd and 4th bullets, 668.01(6)(c), 668.05(3)(b)6, 668.07(1)(a), (b) and (c)1., 668.07(1)(d), 668.07(2)(f), 668.09(1) and (4)(intro.), 668.30(4)(c), 668.32(2)(d), 668.33(2)(c), 668.35(2)(c), 668.36(2)(c), 668.38(4)(c), 668.39(2), 668.39(6)(c), 668.40(2), 668.40 - Table, waste codes F001, F002, F003, F004, F005, F032, F039, K031, K142, K157 and K175, 668.40 – Table, 668.40 - Table, waste codes U121, U404 and footnote 7, 668.44(8)(intro.), (10) and (13), 668.45 - Table 1, footnote 6, 668.48 – Table, 668.49(1) and (4), 668.50(7), 668 - Appendix VII, Table 1, waste codes F032, F033, F0334, F035 and K088, 668 - Appendix IX (title) and (Note), 670.001(2), 670.001(3)(b)8.c., 670.002(14) and (19), 670.010(1) and (8), 670.014(1), 670.016(1), 670.019(3)(a)3., 4., and (5), 670.022(intro.) and (1)(b)2.b., 670.024(4)(c), 670.026(3)(o), 670.040(2), 670.041(intro.), 670.042(1)(a)(intro.) and 2., (2)(b)(intro.) and (g)(intro.), (3)(b)(intro.), and (5)(b)3., 670.062(intro.) and (2)(b)1c. and d., 670.066(3)(b)1. and 2., 670.235(title), (1)(a)(intro.), and (2)(a)(intro.), 670.405(3)(a), 670.415(2)(intro.), 670.431(1), (2) and (3), 670.432(1), 670 - Appendix I, F. 5. a., 670 - Appendix II, 673.01(1)(c), 673.04, 673.09(6), 673.09(9) and (11)(c), 673.12(1)(c)2. and (3)(c)3., 673.13(3)(intro.), (a), and, (b)(intro.), 673.18(8), 673.32(2)(d) and (e), 673.33(1)(c)2., 673.33(3)(intro.), (a) and (b)(intro.), 673.38(8), 673.61(4), 679.10(2)(a)2. and (9), 679.44(3)(intro.), 679.53(3)(intro.), 679.63(3)(intro.), to repeal and recreate, NR 660.11, 661 - Table of Contents, 661.03(1)(b)4.a., b, d, f. and g., 661.04(2)(o), 662 - Table of Contents, 664.0193(1), 664.0195(2), (3) and (4), 665.0193(1), 665.0195, 665.1084(1)(c)3., 665.1084(2)(c)3., 666.100(7)(b), 670 – Table of Contents, 670.042(10), 670.066(intro.), 673.33(3)(c), 673.33(3)(c), 673.34(4), and to create, NR 660.10(9m), (19d), (19g) and (19j), 660.10 (77m), 660.10 (83m), 660.10(108m), 660.10 (145m), 661.04(1)(v), 661.04(1)(z), 661.04(2)(r), 661.32(2), (3)h and (4)., 661.39 through .41, 662.010(10), 662.021, 662.200 to 662.216, 662.220(2)(g), 664.0016(1)(d), 664.0073(2)(r) and (s), 664.0195(5) to (7), 664.0340(2)(e), 664.1050(8), 665.0016(1)(d), 665.0073(2)(o), 665.1050(7), 666.070(2)(b)(Note), 666.080(2), 666.100(2)(c) and (d), 666.905(intro.), 666.905(1)(a)(Note), 666.905(2)(Note), 666.905(3)(c)(Note),667, 668.20, 670.002(23m), 670.010(13), 670.032(2)(c), 670.041(2)(c), 670.042(11), 670.051(5), 670.067, 670.235(3), 670 - Subchapter J, 670.504, 670 - Appendix I, L9 and O., 673.09(1g), 673.09(6m), 673.13(3)(d), 673.33(3)(d), relating to the generation, transportation, recycling, treatment, storage and disposal of hazardous waste and used oil.
Analysis Prepared by the Department of Natural Resources
1. Statutes 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.
3. Explanation of agency authority to promulgate the proposed rules under the statutory authority: The proposed rules replace and update current rules that comprehensively regulate the generation, transportation, recycling, treatment, storage and disposal of hazardous waste and used oil. 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 US Environmental Protection Agency (EPA) under the 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 9 specific objectives.
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 which 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 its objectives, the legislature adopted a number of statutes setting out general and specific hazardous waste rulemaking authority. Some of these rulemaking provisions are mandatory, while others are discretionary. Section 291.05, Stats., 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. Discretionary rulemaking authority was granted to prohibit certain methods of treatment or disposal of particular wastes, and to exempt by rule certain persons who generate, transport, treat, store or dispose of hazardous wastes if such action does not present a significant hazard to public health and safety or the environment.
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 that authority relating to hazardous waste facility location, design, construction, operation, maintenance, closure, long term care, negotiation and arbitration, financial responsibility and licensing and recycling. Finally, the department also relies in part on rulemaking authority in s. 299.53, Stats., to regulate used oil.
4. Related statute or rule: Chapters 160, 287, 289, 292, 293 and 299, Stats., and chs. NR 2, 140, 141, 500 to 538, 700 to 754 and 812, Wis. Adm. Code.
5. Plain language analysis of proposed rule: The rule incorporates into state law changes made to federal hazardous waste regulations by the U.S. Environmental Protection Agency in the following Federal Registers, to the extent allowed by state law:
A. National Emissions Standards for Hazardous Air Pollutants: Surface Coatings of Automobiles and Light Duty Trucks, April 26, 2004 (Relaxation)
Summary: Air emission values have been set for surface coating operations for automobiles and light duty trucks for seven compounds. Hazardous waste treatment, storage and disposal facilities will now be exempt from these air emissions standards under hazardous waste regulations. (Relaxation)
B. Identification and Listing of Hazardous Waste; Dyes or Pigments Production Wastes; Land Disposal Restrictions for Newly Identified Wastes; CERCLA Hazardous Substances Designation and Reportable Quantities; Designation of Five Chemicals as Appendix VIII Constituents; Addition of Four Chemicals to the Treatment Standards of F039 and the Universal Treatment Standards, February 24, 2005; and corrections to rule, June 6, 2005
Summary: Non-wastewaters from the production of certain dyes, pigments and colorants are now listed hazardous wastes under the federal regulations. If the constituent of concern triggers the regulatory threshold, it shall be managed as listed hazardous wastes, unless disposed in a licensed landfill or licensed incinerator. There are also five constituents being added to the list of toxic hazardous wastes. The five constituents have established treatment standards for land disposal and are hazardous substances under Superfund. The one pound reportable quantity has been maintained.
C. Waste Management System: Testing and Monitoring Activities; Final Rule: Methods Innovation Rule and SW 846 Final Update IIIB; Final Rule, June 14. 2005
Summary: Testing and monitoring requirements are more flexible to allow for use of analytical methods outside of the approved federal methods in SW 846 for both hazardous and non-hazardous wastes for land disposal and for air emissions at hazardous waste combustors. This allows for a more performance based approach to compliance, making it easier and more cost effective without compromising human health and environmental protection. (Relaxation)
D. Hazardous Waste Management System; Modification of Hazardous Waste Program; Mercury Containing Equipment; Final Rule , August 5, 2005
Summary: Mercury containing equipment (for instance, thermostats, blood pressure cuffs and mercury switches) have been added to the list of universal waste under the federal hazardous waste regulations. This will allow for less stringent requirements for storage, transportation and collection of these items resulting in better handling and compliance. (Relaxation)
E. Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Recycling Used Oil Management Standards, July 30, 2003
Summary: The federal regulations clearly state that used oil contaminated with <50 ppm polychlorinated biphenyl (PCBs) is considered used oil unless it has been diluted and the source is >50 ppm. If the used oil is contaminated with PCBs to over 50 ppm, it is regulated at the federal level only. In addition, businesses that generate very small amounts of hazardous wastes can mix it with their used oil and manage the mixture as used oil for recycling purposes. Initial marketers of used oil fuel (on-specification) shall keep records of the facilities where they deliver their fuel.
F. Hazardous Waste Management System; Standardized Permit for RCRA Hazardous Waste Management Facilities; Final Rule, September 8, 2005
Summary: The rule allows for a standardized permit for treatment, storage and disposal facilities that generate, store and non-thermally treat hazardous waste on-site in tanks, containers and containment buildings. This rule will also allow these facilities to accept wastes for treatment from other locations under the same ownership. The standardized permit will streamline the process by allowing facilities to obtain and modify permits more easily. (Relaxation)
G. Revision of Wastewater Treatment Exemptions for Hazardous Waste Mixtures (“Headworks Exemptions”), October 4, 2005
Summary: This rule determines which methods of managing hazardous waste mixtures produce discharges that can safely be handled under nonhazardous waste standards.
This rule added two solvents to a larger list of solvents that when mixed with wastewaters are now exempt from the definition of hazardous wastes. These exemptions are provided because the wastewater treatment system can easily and effectively treat the miniscule amounts of the solvents posing negligible risk to the environment. Generators now have the option to directly measure solvent chemicals at the headworks of the wastewater treatment system to determine if wastewater is an exempt mixture. Facilities that claim the de minimis exemption shall identify the listed wastes in their wastewater discharge permit application or eliminate their wastewater discharge.
Combustion units scrubber waters from the burning of the exempt solvents are also exempt from regulation as hazardous wastes. Eligibility for the de minimis exemption is extended to other listed hazardous wastes (beyond discarded commercial chemical products) and to non-manufacturing facilities. (Relaxation)
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