Hearing Information
Date: Monday, January 27, 2014
Time: 11:00 a.m. to 12:00 p.m.
Location: DNR — LaCrosse
3550 Mormon Coulee Rd
McGilvray Room
LaCrosse, WI
Date: Monday, January 27, 2014
Time: 11:00 a.m. to 12:00 p.m.
Location: DNR — Madison
101 S. Webster St.
Room 707
Madison, WI
Date: Monday, January 27, 2014
Time: 2:00 p.m. to 3:00 p.m.
Location: DNR — Green Bay
2984 Shawano Ave.
Lake Michigan Room
Green Bay, WI
Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Richard Mealy, Madison, WI 53707; by E-mail to
Richard.mealy@wisconsin.gov or by calling (608) 264-6006. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.
Availability of the proposed rules and fiscal estimate
The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the
Administrative Rules System Web site which can be accessed through the link https://health.wisconsin.gov/admrules/ public/Home. If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Richard Mealy, Department of Natural Resources, Bureau of Science Services, 101 S. Webster St, Madison, WI, 53703, or by calling (608) 264-6006.
Submitting Comments
Comments on the proposed rule must be received on or before Monday January 27, 2014. Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:
Richard Mealy
Department of Natural Resources
Bureau of Science Services SS/7
101 S Webster St, Madison, WI 53703
Phone: (608) 264-6006
Fax: (608) 266-5226
Internet: Use the Administrative Rules System Web site accessible through the link provided.
Analysis Prepared by the Department of Natural Resources
Statutes interpreted
Statutory authority
Explanation of agency authority
Section
281.19 (1), Stats., authorizes the department to issue general orders, and adopt rules applicable throughout the state for the construction, installation, use, and operation of systems, methods, and means to prevent and abate pollution of the waters of the state. Section
283.31, Stats., prohibits the discharge of any pollutant into any waters of the state or the disposal of sludge from a treatment work by any person unless such discharge or disposal is done under a permit issued by the department. Section
283.55 (1), Stats., requires permittees to use monitoring methods, including where appropriate, biological monitoring methods, to identify and determine the amount of each pollutant discharged from each point source under the owner's or operator's ownership or control. Section
299.15 (2) (a), Stats., authorizes the department by rule to prescribe methods of analysis for pollutants.
Related statutes or rules
Chapters
NR 157 and
233, Wis. Adm. Code, and Chapter
283, Stats.
Plain language analysis
Specifically, the proposed rule package will address EPA's issues with the Department rule (ch.
NR 219) incorporating SW 846 methods for wastewater sample analysis. The EPA publication SW- 846, entitled Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, is the waste division of EPA's official compendium of analytical and sampling methods that have been evaluated and approved for use in complying with the federal Resource Conservation and Recovery Act (RCRA) regulations. The DNR has allowed SW 846 methods for analysis of wastewater samples since 1995 because the methods are revised frequently and contain stringent quality control measures. However, EPA has requested that DNR remove from NR 219 all references to allowing SW 846 methods as "approved" methods for analysis of wastewater samples. EPA has also requested that DNR update ch.
NR 219 to incorporate analytical methods that have been federally approved in the Federal Register (
40 CFR 136). Therefore, one objective of this rule change is to remove analytical methods that EPA has not approved for wastewater from the list of approved analyses in ch.
NR 219. The other objective is to add methods that are currently allowed by EPA per
40 CFR Part 136 but are not included in ch.
NR 219 at this time.
Summary and comparison with existing and proposed federal regulations
The federal counterpart to this rule is
40 CFR 136. On May 18, 2012, EPA published as final rule, “Guidelines Establishing Test Procedures for the Analysis of Pollutants Under the Clean Water Act; Analysis and Sampling Procedures". The proposed revision to ch.
NR 219 incorporates these changes and is consistent with the federal regulations.
Comparison of similar rules in adjacent states
The States of Illinois, Iowa, Michigan, and Minnesota have wastewater programs delegated to them from the U.S. Environmental Protection Agency. Wisconsin has been the only state within EPA Region 5 which has allowed the use of SW-846 methods for NPDES compliance monitoring. Therefore, removing SW-846 methods from the rule will bring Wisconsin into line with other states.
With respect to new methods promulgated by the EPA, the Illinois EPA incorporated changes to
40 CFR Part 136 with legislation which took effect February 2013. The State of Michigan does not certify laboratories that perform analyses of wastewater. The Minnesota Environmental Laboratory Accreditation Program incorporated the changes to
40 CFR Part 136 for its October 2013 application period. The Iowa Department of Natural Resources rules reference the 2007 edition of
40 CFR Part 136 at this time.
Summary of factual data and analytical methodologies
This proposed rule revision brings Wisconsin up to date with the current federal rules that establish analytical test methods.
Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis
Alternate approved methods from different authoritative sources are available for all of the analytical methods that are being deleted. The quality control requirements for analyses are established in ch.
NR 149; these will not change with updating methods tables. For several analyses, newer methods and techniques have been added. It is possible for a laboratory to change the analytical method it uses and not incur additional costs or, in some cases, actually reduce costs.
The requirements imposed upon small business include following approved analytical methods listed in the rule. There are no reporting requirements in ch.
NR 219. The small businesses that will likely be impacted by this rule are commercial laboratories certified under ch.
NR 149. The vast majority of these laboratories likely follow approved analytical methods that are being maintained in this chapter.
Effect on small business
The proposed changes to ch.
NR 219 potentially only affect larger certified commercial laboratories and larger municipal wastewater facilities that analyze samples for compliance with their Wisconsin Pollutant Discharge Elimination System (WPDES) permit. There are 371 laboratories certified or registered to perform analyses by the department. Of these, 238 municipal wastewater laboratories, 48 industrial environmental, and 71 commercial environmental will be impacted by this rule. The remaining laboratories are public health laboratories that analyze drinking water and those that perform testing at hazardous waste facilities. This update will allow laboratories to utilize new techniques that currently require approval by the U. S. Environmental Protection Agency and deletes outdated methods that lack adequate quality control procedures.
Of the 371 certified or registered laboratories that will be impacted by this rule, there are less than 12, 3% of the total, that fit the definition of “small businesses". This proposed rule would affect commercial, industrial, and municipal laboratories that analyze effluent discharges to determine compliance with WPDES permit limitations. All laboratories performing analyses to determine WPDES compliance are expected to keep detailed records of all laboratory information, including: analytical methods and results, corrective action logs, equipment records, quality control records, and sample receipt logbooks.
This proposal does not change analytical testing requirements, nor does it address any change in reporting, schedule or deadline requirements. Sections
299.11 and
283.55, Stats., do not allow for less stringent schedules, deadlines or reporting requirements. Laboratories may seek approval of an alternate test procedure, as specified in s.
NR 219.05, Wisc. Adm. Code, from U.S. EPA. WPDES permit terms and conditions and other related regulations require that permitted facilities conduct analytical tests in compliance with the procedures of ch.
NR 219. The Laboratory Certification and Registration Program audits laboratories performing these analyses to ensure that testing is performed in compliance with the proposed rule. If a laboratory does not follow an approved method, it is cited during the audit process; a laboratory must correct all identified deficiencies to maintain their certification under ch.
NR 149.
Environmental Analysis
The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.
Fiscal Estimate Summary
This rule will have no fiscal effect on state government. Minimal economic impact associated with this rule revision is anticipated for local governments and the private sector. The majority of the costs are upfront costs resulting from labs having to change SOPs and from validating the new EPA methods. Even the minimal fiscal impact is unavoidable as this rule revision is being directed by the U.S. EPA.
Contact Person
Richard Mealy
Department of Natural Resources
Bureau of Science Services SS/7
101 S Webster St, Madison, WI 53703
Phone: (608) 264-6006
Fax: (608) 266-5226
E-mail:
Richard.Mealy@wisconsin.gov
STATE OF WISCONSIN
DEPARTMENT OF ADMINISTRATION
DOA-2049 (R03/2012)
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Division of Executive Budget and Finance
101 East Wilson Street, 10th Floor
P.O. Box 7864
Madison, WI 53707-7864
FAX: (608) 267-0372
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ADMINISTRATIVE RULES
Fiscal Estimate & Economic Impact Analysis
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1. Type of Estimate and Analysis
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X Original ⍽
Updated ⍽ Corrected
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2. Administrative Rule Chapter, Title and Number
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NR 219
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3. Subject
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Analytical test procedures and approved methods.
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4. Fund Sources Affected
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5. Chapter 20, Stats. Appropriations Affected
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⍽ GPR
⍽ FED ⍽ PRO ⍽ PRS
⍽ SEG ⍽ SEG-S
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6. Fiscal Effect of Implementing the Rule
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X No Fiscal Effect
⍽ Indeterminate
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⍽ Increase Existing Revenues
⍽ Decrease Existing Revenues
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⍽ Increase Costs
⍽ Could Absorb Within Agency's Budget
⍽ Decrease Cost
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7. The Rule Will Impact the Following (Check All That Apply)
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⍽ State's Economy
X Local Government Units
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X Specific Businesses/Sectors
⍽ Public Utility Rate Payers
⍽ Small Businesses (if checked, complete Attachment A)
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8. Would Implementation and Compliance Costs Be Greater Than $20 million?
⍽ Yes
X No
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9. Policy Problem Addressed by the Rule
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Current wastewater analysis methods being used are not in compliance with EPA requirements. The EPA is requiring the WDNR to remove the SW 846 methods for wastewater analysis from the rule. SW 846 methods will still be included in NR 219 and allowed to be used for the analysis of sludge (currently Table EM). In addition, we will be adding methods the EPA has promulgated in the Method Update Rule (MUR) dated May 18, 2012.
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10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that may be affected by the proposed rule that were contacted for comments.
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Laboratories using SW 846 methods could potentially be affected. These include small businesses, businesses, and municipal wastewater treatment facilities (WWTF). In our preliminary research we conducted a survey of 57 labs that could potentially be using SW-846 methods.
We received 19 responses. Sixty-seven percent (thirteen respondents) anticipated no economic impact. Thirty-three percent (six respondents) anticipated some, but minimal economic impact.
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11. Identify the local governmental units that participated in the development of this EIA.
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See above.
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12. Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
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We expect the economic and fiscal impact of this rule revision to be minimal. Those who responded to our survey reported costs ranging from $50 to $25,000. One lab did not provide a cost estimate. Four of the six respondents estimated costs less than $4,500.
To estimate the economic impact statewide, we assume (based on responses) that 30 percent of state labs will need to revise their methods.
The majority of the costs come from staff time spent revising SOPs and validating the new methods. Alternative methods are available online for free through the EPA. Methods are similar enough that laboratory equipment and supplies will likely be comparable in cost. Costs to laboratories will primarily be incurred from time spent validating new methods and revising SOPs.
A survey was sent out to 57 labs known or believed to perform wastewater testing using the methods scheduled to be removed. There were 19 respondents (33% response rate). Survey questions and responses are as follows:
1. Do you use any of the SW-846 methods listed in NR219 for WPDES monitoring?
• Yes – 6 respondents
• No – 13 respondents.
2. Which SW-846 methods do you use?
• Respondents indicated an array of SW-846 methodologies, the majority of which were related to metals, volatile organics, and semivolatile organics.
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3. Anticipated costs:
• $50
• $1,300
• $2,000
• $3,000-$4,500
• $25,000 (Note: There is no substantiation or rationale for this figure)
• Unknown
4. Lab equipment costs
• None/minor costs
5. Any anticipated difficulties
• Two said they would have to run both old and new methods which would be somewhat of a burden.
6. Other costs
• Most say none; one respondent said $42,000/year resulting from running additional controls and standards. The elimination of SW-846 methods , however, will not result in any increased frequency for quality control samples or standards.
7. Respondent classification
• Small business: 4
• Business: 1
• Municipality/WWTF: 1
In summary:
Minimal economic impact associated with this rule revision is anticipated. The majority of the costs are upfront costs resulting from labs having to change SOPs and from validating the new EPA methods. Even the minimal fiscal impact is unavoidable as this rule revision is being directed by the U.S. EPA.
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13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
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Wastewater analysis methods will be in compliance with EPA standards.
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14. Long Range Implications of Implementing the Rule
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The costs are primarily up-front implementation costs; therefore, there are very few long-range implications of implementing this rule beyond the WDNR being in compliance with EPA standards.
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15. Compare With Approaches Being Used by Federal Government
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These regulations are established by the U.S. EPA.
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16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
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All the other U.S. EPA Region 5 states (Illinois, Indiana, Michigan, Minnesota and Ohio) are subject to the U.S. EPA regulations that are delegated to the states for implementation. Wisconsin's rules for laboratory standards should essentially be the same as the other states.
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17. Contact Name
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18. Contact Phone Number
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Richard Mealy
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(608) 264-6006
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This document can be made available in alternate formats to individuals with disabilities upon request.
Notice of Rulemaking Without Public Hearing
Public Instruction
The State Superintendent of Public Instruction hereby proposes an order to amend section
PI 25.05 (1) (intro), relating to the Children at Risk Plan and Program.
The rules are being adopted under s.
227.16 (2) (b), Stats., which provides that rulemaking does not need to be preceded by notice and public hearing if the proposed rule brings an existing rule into conformity with a statute that has been changed.
Place where Comments are to be Submitted and Deadline for Submission
Comments can be submitted to Katie Schumacher using the contact information below. Comments must be submitted no later than 10 days after publication of the notice of submittal to the Rules Clearinghouse in the Administrative Register.
Analysis by the Department of Public Instruction
Statute interpreted
Statutory authority
Explanation of agency authority
Under s.
118.153 (7), Stats., the State Superintendent must promulgate rules to implement the program for children at risk of not graduating from high school.
Related statute or rule
None.
Plain language analysis
The proposed rule change will modify s.
PI 25.05 to align it with the statutory change made in
2011 Wisconsin Act 32, which removed the statutory limitation on the number of children at risk a school district may contract with private agencies to provide services for.
Summary of, and comparison with, existing or proposed federal regulations
N/A.
Comparison with rules in adjacent states
N/A.
Summary of factual data and analytical methodologies
N/A.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report
N/A.
Anticipated Costs Incurred by Private Sector
N/A.
Effect on Small Business
The proposed rules will have no economic impact on small businesses, as defined in s.
227.114 (1), Stats.
Agency Contact Person
Katie Schumacher
Budget and Policy Analyst
