The statement of scope for this rule, SS 109-19 was approved by the Governor on October 31, 2019, published in Register No. 767A1 on November 4, 2019, and approved by the Natural Resources Board on February 26, 2020. This rule was approved by the Governor on insert date.
ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING, RENUMBERING AND AMENDING, AMENDING, REPEALING AND RECREATING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal NR 514.09 (1) (b) 7.; to renumber NR 506.17; to renumber and amend NR 500.02 (1), 504.02 (1), 506.02 (1), 507.02 (1), 508.02 (1), 512.02 (1), 512.13 (1), 514.02 (1), and 516.02 (1); to amend NR 500.05 (intro.), 500.08 (4), 504.10 (intro.), 506.08 (intro.), 508.01, and 520 Table 5; to repeal and recreate NR 507 Appendix I Table 3 and Table 4; and to create NR 500.03 (19) (Note), (26c), (26g), (26n), (26r), (26w), (26y), (60m), (76m), (106m), (121m), (152m), (197) (Note), (246m), (254g) and (254r), 500.035, 504.10 (3) (g), 504.12, 506.083, 506.084, 506.17 (1) (title), (2), (3), and (4), 506.20, 507.15 (3), 507.18 (5), 507 Appendix I Table 1A and Table 2 Footnote 1, 508.06, 512.13 (1) (a), (b), and (c), 514.04 (7), 514.045 and 514.07 (10) relating to coal combustion residual landfills.
Analysis Prepared by the Department of Natural Resources
1. Statutes Interpreted: Section 289.05(1), Wis. Stats., requires the department to promulgate rules establishing minimum standards for solid waste facilities. Sections 289.06(1) and 227.11(2)(a), Wis. Stats., confer rule making authority to the department to promulgate rules implementing ch. 289, Wis. Stats. 3. Explanation of Agency Authority: Coal combustion residual (CCR) landfills are regulated in Wisconsin under ch. 289, Wis. Stats., chs. NR 500 to 520, Wis. Adm. Code, and federal rules. The proposed rule would incorporate federal requirements from 40 CFR 257, Subpart D in order for Wisconsin to seek approval from the U.S. Environmental Protection Agency (EPA) for a state CCR permit program for CCR landfills. CCR is a “solid waste” within the meaning of s. 289.01(33), Wis. Stats. Section 289.05(1), Wis. Stats., requires the department to promulgate rules establishing minimum standards for solid waste facilities. Sections 289.06(1) and 227.11(2)(a), Wis. Stats., also confer rule making authority to the department to promulgate rules implementing ch. 289, Wis. Stats. These provisions supply the department with explicit authority to regulate disposal facilities handling CCR. On April 17, 2015, the EPA published a final rule to regulate the disposal of CCR as solid waste under subtitle D of the Resource Conservation and Recovery Act (RCRA), 40 CFR Parts 257 and 261. The final rule was effective on October 14, 2015. The 2016 Water Infrastructure Improvements for the Nation (WIIN) Act, Section 2301 allowed states to develop and submit a CCR permit program to EPA for approval. On July 17, 2018, EPA signed additional rule amendments (Phase One, Part One) with additional action pending to address other proposed rule amendments. These changes have allowed the State of Wisconsin to propose the creation of a CCR permit program.
4. Related Statutes or Rules: Portions of chapters NR 500 to 520, Wis. Adm. Code
5. Plain Language Analysis: CCR, often called coal ash, is created when coal is burned by power plants to produce electricity. CCR may be disposed of in landfills or treated, stored or disposed of in impoundments designed to hold an accumulation of CCR and liquids. All CCR surface impoundments in Wisconsin will be closed within the next several years and no new impoundments are planned. The department does not currently regulate CCR surface impoundments under solid waste rules so the department is not proposing to incorporate federal requirements into its proposed CCR permitting program at this time. EPA will continue to regulate surface impoundments. CCR landfills in Wisconsin are currently regulated under both federal rules and existing Wisconsin rules. Where rules differ, CCR landfills must meet both federal and state laws. These proposed rules would allow Wisconsin to seek approval for a state CCR permit program from the EPA. EPA approval of a Wisconsin CCR permit program would allow CCR landfill operators to apply a single set of consolidated rules and interact with one regulatory agency.
The federal requirements for CCR landfills include location restrictions, design criteria, operating criteria, groundwater monitoring and corrective action, closure and post-closure care and recordkeeping, notification, and posting of information. Wisconsin proposes using both existing rules to meet these requirements and incorporating the new federal requirements for CCR landfills into Wisconsin rules where required.
Specific elements of the proposed rule include:
A. NR 500 General Solid Waste Management Requirements: The rule creates new definitions in ch. NR 500, Wis. Adm. Code, specific to coal combustion residual landfills to correspond with federal definitions. Other revisions to ch. NR 500 clarify that exemptions may not be granted if they cause noncompliance with the minimum federal requirements and that plan modifications are also required to follow the general submittal requirements.
B. NR 504 Landfill Location, Performance, Design and Construction Criteria: The rule creates a new section, s. NR 504.12, Wis. Adm. Code, for minimum design and construction criteria for CCR landfills related to run-on and run-off controls, liner design, and final cover systems consistent with federal requirements. CCR landfills will need to be designed, constructed and operated in accordance with existing rule requirements and the additional criteria for CCR landfills under the proposed rule. A federal requirement that substantially differs from current rule is that new CCR landfills and lateral expansions of a CCR landfill are required to be designed and constructed with a subbase grade that is located no less than five feet above the upper limit of the uppermost aquifer, or provide a demonstration that there will not be a hydraulic connection between any portion of the base of the CCR landfill and the uppermost aquifer. The definition of uppermost aquifer is unique to CCR landfills and is included under ch. NR 500 of the proposed rule. Any alternate liner proposals for CCR landfills must also demonstrate that the design meets the minimum federal requirements.
C. NR 506 Landfill Operational Criteria: The rule creates closure, long-term care, record keeping, inspection and reporting requirements for CCR landfills consistent with federal requirements. The closure requirements include procedures for notification, timeframes for initiation and completion of closure, deed notation, closure by removal of CCR and alternative closure requirements. Consistent with federal requirements, CCR landfills will be required to maintain a written operating record, but for some documents the rule requires the documents be maintained during the operating life and 40-year long-term care period. Specific records will be required to be posted on a publicly accessible internet site maintained by the landfill owner or operator. Inspection requirements include periodic inspections by the owner or operator for dust control and stability and annual inspections by a licensed professional engineer related to the condition of the CCR landfill. An annual report will be required by January 31 of each year addressing fugitive dust control, the annual inspection, groundwater monitoring and corrective action, and leachate pipe cleaning and inspection.
D. NR 507 Environmental Monitoring: The rule creates a new subsection establishing a groundwater monitoring well network for CCR landfills that is consistent with federal requirements. This monitoring well network will be in addition to the monitoring network already in place at CCR landfills that is used to ensure compliance with existing state groundwater quality standards. The monitoring wells assigned to determine compliance with the requirements of the new subsection will be designated “CCR wells.” CCR wells will monitor groundwater quality in the uppermost aquifer beneath the CCR landfill while solid waste wells already required under existing ch. NR 507, Wis. Adm. Code, regulations will monitor groundwater quality within all water-bearing units, even if they do not qualify as being within the uppermost aquifer. The CCR wells and existing solid waste wells will be sampled for the parameters and frequencies as indicated in the revised ch. NR 507 Appendix tables. Both sets of monitoring wells will be subject to the groundwater quality standards under ch. NR 140, Wis. Adm. Code, including provisions for setting preventive action limits (PALs) for indicator parameters and alternate concentration limits (ACLs) for contaminant concentrations that are naturally elevated above the groundwater quality standards. The subsection includes requirements for establishing a detection monitoring system, notification requirements, and recordkeeping. The rule creates a design management zone of 0 feet for CCR landfills, which may not be expanded.
E. NR 508 Responses when a Groundwater Standard is Attained or Exceeded: The rule creates a new subsection outlining remedial actions that are required when a groundwater standard is attained or exceeded at a CCR monitoring well at a CCR landfill, consistent with federal requirements. Once an exceedance has been detected, the owner or operator would be required to notify the department within 60 days from the end of the sampling period and respond by beginning an assessment of the cause and significance of the exceedance. The owner and operator would also have to begin assessment monitoring unless the department determines within 30 days that, based on evidence supplied by the owner or operator, the exceedance was not a true representative of the groundwater quality at the well.
Assessment monitoring consists of sampling all the CCR wells for the NR 507, Appendix I, Table 3 parameters within 90 days of the verified exceedance, then continuing monitoring for the detection monitoring parameters plus any other parameters detected from Table 3 until there are at least 2 consecutive sampling rounds without any exceedance of a groundwater standard. If a groundwater quality exceedance is detected during the assessment monitoring, the owner or operator would have to define the degree and extent of the contaminant, notify the potentially affected neighbors and submit a site investigation workplan and site investigation report to the department within 60 days unless the owner or operator could demonstrate that the exceedance was caused by natural or off-site sources.
After the department reviews the site investigation report and determines that there is a potential release from the CCR landfill, the owner or operator would have 60 days to submit a remedial action options report that will assess possible corrective actions. The department will hold an informational public meeting to discuss the results of the remedial action options report no later than 30 days prior to selection of a remedial action. Based on the results of the remedial action options report, the owner or operator would select a remedy that, at a minimum, meets the standards listed in the subsection and ch. NR 722, Wis. Adm. Code, for the selection of remedial actions. The owner or operator must describe the selected remedy in the remedial action options report and include a section indicating how the selected remedy meets the remedial action standards. The department would review and approve an appropriate remedial action for implementation by the owner or operator. These procedures are similar to existing groundwater quality exceedance requirements for any landfill, but explicitly apply to CCR landfills in order to be equally protective as the federal CCR landfill regulations.
Within 90 days after the department approves a remedy from the remedial action report, the owner or operator would have to initiate remedial activities. Once the remedial action is complete, the owner or operator may petition the department for a case closure.
F. NR 512 Feasibility Report for Landfills: The rule includes additional requirements for feasibility reports for CCR landfills, consistent with federal requirements. The feasibility report would need to include a demonstration that addresses specific factors when determining whether an area is unstable. An “unstable area” is already defined in NR 500.03 (246), Wis. Adm. Code, and can include poor foundation conditions, areas susceptible to mass movements, and karst terrains. The rule would also include additional limits on facilities or practices near floodplains.
G. NR 514 Plan of Operation and Closure Plans for Landfills: The rule includes procedural requirements for initial permitting of CCR landfills to establish a process for existing and new CCR landfills to demonstrate compliance with the new rules after the effective date, consistent with federal requirements. A new or existing CCR landfill will be required to submit a plan of operation modification to include new plans or modifications required by the rule. The rule provides timeframes for review, notification of completeness and a public comment period. Existing landfills that fail to comply with the locational criteria for unstable areas will be required to cease placing waste and close.
Also consistent with federal requirements, this chapter includes additional plan of operation requirements for CCR landfills, including a fugitive dust control plan, a run-on and run-off control plan, a closure plan and a long-term care plan. The rule language includes opportunities for public participation prior to and during the review process for various plans, including the plan modification for initial permitting. The rule removes a reference in NR 514.09 (1) (b), Wis. Adm. Code, related to changes that are less stringent than a federally mandated requirement, because department approvals would need to comply with all federal requirements.
H. NR 520 Solid Waste Management Fees and Financial Responsibility Requirements: The rule proposes new fees for CCR landfills for annual reports and the plan of operation modification for initial permitting. The fees cover the estimated cost for department staff to provide plan review and approval services. This rule does not change other applicable fees.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: The proposed rule revisions will be consistent with federal CCR rules (40 CFR 257, Subpart D) in order for Wisconsin to seek approval of a state CCR permit program. Current portions of chs. NR 500 to 520, Wis. Adm. Code, are already consistent with federal rules or may be considered no less protective than federal rule for CCR landfills. Final implementation of this rulemaking will include approval of the rule language and overall program by the EPA.
7. Summary of Comments Received on the Statement of Scope and How the Agency Took Those Comments into Account in Drafting the Proposed Rule: The department held a preliminary public hearing on the statement of scope on January 7, 2020, at the Waukesha State Office Building, 141 NW Barstow, Waukesha, WI. No members of the public attended the hearing.
The public comment period on the scope statement ended on January 14, 2020. The department received two written comments. One indicated support for the proposed statement of scope and the other expressed concerns regarding Wisconsin’s ability to perform better than the EPA in regulating these sites given the lack of funding and staff. Those concerns included the need to ensure environmental protections and financial assurance and providing opportunities for public input in the permitting and enforcement processes.
All comments were incorporated into rule development. Originally, the scope statement also considered creating a state permit program for managing CCR in surface impoundments, in addition to landfills. The department decided that surface impoundments should continue to be regulated by the EPA and did not include those provisions in this rulemaking. General information provided by industry representatives prior to scope statement development indicated that all surface impoundments will be closed within the next several years and no new surface impoundments are currently planned for Wisconsin.
8. Comparison with Similar Rules in Adjacent States:
States have the option to seek approval from the EPA of a state CCR permit program that contains rules at least as protective as the federal rule. If a state chooses not to create its own permit program or to create a partial program, regulatory authority will continue under the EPA for all or a portion of CCR disposal activity.
Illinois will be seeking approval for a state permit program for CCR surface impoundments only, not landfills.
Iowa is undecided if or when it will seek approval for a state permit program.
Michigan is seeking approval for both surface impoundments and landfills and submitted an application to EPA in April 2020 for permit program approval.
Minnesota will not be seeking permit program approval.
Other states in EPA Region 5 are doing the following: Ohio is in the preliminary stages of rulemaking and will be seeking approval for both surface impoundments and landfills. Indiana recently indicated to EPA that it would be seeking approval.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The proposed rule would include federal requirements from 40 CFR 257, Subpart D in order for Wisconsin to seek approval from EPA for a state CCR permit program for CCR landfills. This regulatory approach was chosen so that CCR landfill operators may apply one set of rules and interact with one regulatory agency. CCR landfills were regulated under Wisconsin law prior to the creation of the federal CCR rule in 2015. In coordination with all stakeholders and under review by the EPA, these rules were developed to ensure Wisconsin rules applied to CCR landfills are as protective as the federal rules.
The department will continue to inspect CCR landfills and, under this rule, incorporate all requirements that meet nationwide landfill management standards for protection of human health and the environment. CCR materials contain contaminants like mercury, cadmium and arsenic. Without proper management, these contaminants can pollute waterways, ground water, drinking water, and the air. By creating Wisconsin rules that are as protective as the federal rule, the department will continue to address risks from improper disposal of CCR.