8. Comparison with Similar Rules in Adjacent States: Adjacent states have not enacted similar rules and are instead applying 40 CFR 441. Pretreatment programs in Illinois are directly administered by Region 5 of the EPA, so 40 CFR 441 is being used directly. Under s. NR 211.34 (2), Wis. Adm. Code, the department is required to adopt pretreatment standards or requirements as soon as possible after the promulgation of any federal regulation establishing pretreatment standards or requirements. The same rule promulgation requirement is also found in s. 283.11 (1), Wis. Stats. (see item 2., above). 9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: Dental offices discharge mercury present in amalgam used for fillings. Amalgam separators are a practical, affordable, and readily available technology for capturing mercury and other metals before they are discharged into sewers that drain to POTWs. Once captured by a separator, mercury can be recycled.
EPA first identified the dental industry for study in its 2006 Effluent Guidelines Plan (71 FR 76644) as part of the health services industry. In 2008, EPA published its results from the detailed study in the technical report, Health Services Industry Detailed Study: Dental Amalgam (U.S. EPA, 2008). For that report, EPA compiled and summarized information on mercury discharges from dental offices, BMPs, and amalgam separators. Regarding amalgam separators, EPA examined their frequency of use, their effectiveness in reducing mercury discharges to POTWs, and the capital and annual costs of their installation and operation. The detailed study report also included a preliminary industry profile that provided the number of dental offices, the number of small businesses, discharge information, financial characteristics of the industry, and a description of the national, state, and local mandatory and voluntary programs to reduce mercury wastewater discharges from dental offices. EPA documented its findings in the August 2008 technical report, Health Services Industry Detailed Study: Dental Amalgam (EPA-821-R-08-014).
EPA Region 8 developed a draft Mercury Control Strategy to help POTWs control mercury pollution problems from commercial and smaller industrial users, including dental offices. This draft Strategy included detailed information on the development of BMPs, amalgam separators, and other removal and filtration devices, as well as other background information regarding dental amalgam control approaches
EPA reviewed literature and collected data on various aspects of the dental industry, amalgam separators, and mercury discharges, including:
—Current, relevant technical publications that describe the sources and generation of mercury wastes at dental offices and the discharge of mercury and other amalgam filling metals (i.e., copper, silver, tin, and zinc) to POTWs.
—Current information on possible treatment solutions (i.e., amalgam separators) for dental offices to reduce mercury in the wastewater and their effectiveness.
—Current implementation costs for technologies to reduce mercury and other metal discharges at dental offices.
EPA participated in several meetings with stakeholders including the Environmental Council of the States (ECOS), Association of Clean Water Act Administrators (ACWA), environmental organizations, the American Dental Association (ADA), the National Association of Clean Water Agencies (NACWA), and various environmental organizations.
It is important to note that many dental offices in Wisconsin have already installed the technology necessary to come into compliance with the proposed rule, as use of dental amalgam separators is required by many municipal wastewater treatment plants (POTWs) that administer mercury pollutant minimization plans.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
American Dental Association:
—“An Economic Study of Expanded Duties of Dental Auxiliaries in Colorado” (ADA, 2009).
—“2009 Survey of Dental Practice: Income from the Private Practice of Dentistry” (ADA, 2010).
EPA:
—EPA-821-R-16-005 -Technical and Economic Development Document for the Final Effluent Limitations Guidelines and Standards for the Dental Category (US-EPA, 2016).
11. Effect on Small Business (initial regulatory flexibility analysis): DNR anticipates that the majority of entities (if not all) impacted by this rule are small businesses. As a result, the impact of this rule to small businesses will be the same as the broader impact of the rule to the business sector provided in section #14 of the Fiscal Estimate and Economic Impact Analysis, form DOA-2049 (attached).
The economic impact on dental entities, local government units, and small businesses, per year, is estimated at $1.2 M. The analysis considered that 60% of the dental facilities in Wisconsin (an estimated 2,061 facilities) did not have the technology and equipment required, and as a result would have to install the required equipment to meet the federal regulations, which brought the cost to an estimated $909,847.97. An estimated 40% of the 2,061 dental entities with already installed technology would spend an estimated $314,338.99, which brings the annual total to $1,224,186.96.
12. Agency Contact Person: Richard Douglas; Department of Natural Resources, 101 S. Webster Street, Madison, WI 53707; Richard.Douglas@wisconsin.gov; (608) 267-6822 13. Place where comments are to be submitted and deadline for submission:
A public hearing was held on September 7, 2021. Comments were accepted through September 14, 2021.
The department received the consent of the Attorney General for the incorporation by reference of the American National Standards Institute/American Dental Association Specification for Amalgam Separators, published in 2009 (ANSI/ADA 108-2009) and its 2011 technical addendum.
RULE TEXT
Section 1. NR 220.02 (13m) is created to read:
NR 220.02 (13m) Dental offices
Section 2. NR 229 is created to read:
DENTAL OFFICES
NR 229.01 Applicability. (1) Except as provided under subs. (3), (4), and (5), this chapter applies to dental dischargers.
(2) Unless otherwise designated by the control authority, a dental discharger subject to this chapter is not a significant industrial user as defined under ch. NR 211, and is not a categorical industrial user or industrial user subject to categorical pretreatment standards as those terms and variations are used under ch. NR 211, as a result of applicability of this rule. (3) This chapter does not apply to a dental discharger that exclusively practices one or more of the following dental specialties:
(a) Oral pathology.
(b) Oral and maxillofacial radiology.
(c) Oral and maxillofacial surgery.
(d) Orthodontics.
(e) Periodontics.
(f) Prosthodontics.
(4) This chapter does not apply to wastewater discharges from a mobile unit operated by a dental discharger.
(5) This chapter does not apply to a dental discharger that does not discharge any amalgam process wastewater to a POTW, such as a dental discharger that collects all amalgam process wastewater for transfer to a centralized waste treater as defined under s. NR 211.03 (2e). (6) A dental discharger that does not place dental amalgam and does not remove dental amalgam except in limited emergency or unplanned, unanticipated circumstances, and that certifies such to the control authority in a one-time compliance report as required under s. NR 229.05 is exempt from any further requirements of this chapter. NR 229.02 Definitions. In this chapter:
(1) “Amalgam” or “dental amalgam” means an alloy of elemental mercury and other metal that is used in the practice of dentistry.
(2) “Amalgam process wastewater” means any wastewater generated and discharged by a dental discharger through the practice of dentistry that may contain dental amalgam.
(3) “Amalgam separator” means a collection device designed to capture and remove dental amalgam from the amalgam process wastewater of a dental facility.
(4) “Authorized representative” means the person authorized to sign documents as prescribed under s. NR 211.15 (10). (5) “Control authority” has the meaning provided under s. NR 211.03 (4). (6) “Dental discharger” means a facility where the practice of dentistry is performed and that discharges wastewater to a POTW, including institutions, permanent or temporary offices, clinics, home offices, and facilities owned and operated by federal, state, or local governments, and the sole proprietorship, partnership, or corporation that oversees the operation of such a facility.
(7) “Existing source” means a dental discharger that is not a new source.
(8) “Mobile unit” means a specialized mobile self-contained van, trailer, or equipment used in providing dentistry services at multiple locations.
(9) “New source” means a dental discharger whose first discharge to a POTW occurs after July 14, 2017.
Note: POTW is the abbreviation for publicly owned treatment works.
NR 229.03 Pretreatment standards for existing sources. No later than July 14, 2020, any existing source subject to this chapter shall achieve all of the following:
(1) Removal of dental amalgam solids from all amalgam process wastewater by one of the following methods:
(a) Installation, operation, and maintenance of one or more amalgam separators that meet all of the following requirements:
1. The amalgam separator is compliant with ANSI/ADA 108-2009 with the 2011 technical addendum, incorporated by reference. Compliance shall be assessed by an accredited testing laboratory under ANSI's accreditation program for product certification or a testing laboratory that is a signatory to the International Laboratory Accreditation Cooperation's Mutual Recognition Arrangement. The testing laboratory's scope of accreditation shall include ANSI/ADA 108-2009 or ISO 11143.
Note: ANSI/ADA 108-2009 is the American National Standards Institute/American Dental Association Specification for Amalgam Separators, published in 2009. Copies of ANSI/ADA 108-2009 and the 2011 technical addendum are available at http://www.ada.org. Copies are also available for inspection at the offices of the department of natural resources and the legislative reference bureau. Note that ANSI/ADA 108-2009, along with the 2011 addendum, is identical to ISO 11143:2008, which is available at http://webstore.ansi.org. 2. The amalgam separator is sized to accommodate the maximum discharge rate of amalgam process wastewater.
3. A dental discharger that operates an amalgam separator that was installed at a dental facility prior to June 14, 2017, satisfies the requirements of subds. 1. and 2. until the existing separator is replaced as described under subd. 5., or until June 14, 2027, whichever is sooner.
4. The amalgam separator is inspected in accordance with the manufacturer's operating manual to ensure proper operation and maintenance of the separator and to confirm that all amalgam process wastewater is flowing through the amalgam retaining portion of the amalgam separator.
5. In the event that an amalgam separator is not functioning properly, the amalgam separator is repaired consistent with manufacturer instructions or replaced with a unit that meets the requirements under subds. 1. and 2. as soon as possible, but no later than 10 business days after the malfunction is discovered by the dental discharger, or an agent or representative of the dental discharger.
6. The amalgam retaining unit is replaced in accordance with the manufacturer's schedule as specified in the manufacturer's operating manual or when the amalgam retaining unit has reached the maximum level, as specified by the manufacturer in the operating manual, at which time the amalgam separator can perform to the specified efficiency, whichever comes first.
(b) Installation, operation, and maintenance of one or more amalgam removal devices other than an amalgam separator. The amalgam removal device shall meet all of the following requirements:
1. The removal efficiency shall be at least 95 percent of the mass of solids from all amalgam process wastewater. The removal efficiency shall be calculated in grams recorded to 3 decimal places, on a dry weight basis. The removal efficiency shall be demonstrated at the maximum water flow rate through the device as established by the device manufacturer's instructions for use.
2. The removal efficiency shall be determined using the average performance of 3 samples. The removal efficiency shall be demonstrated using a test sample of dental amalgam that meets all of the following particle size distribution specifications:
a. 60 percent by mass of particles that pass through a 3,150 µm sieve but that do not pass through a 500 µm sieve.
b. 10 percent by mass of particles that pass through a 500 µm sieve but that do not pass through a 100 µm sieve.
c. 30 percent by mass of particles that pass through a 100 µm sieve.
2m. Each of the 3 particle size distributions specified under subd. 2. shall contain a representative distribution of particle sizes.
3. The device shall be sized to accommodate the maximum discharge rate of amalgam process wastewater.
4. The device shall be accompanied by the manufacturer's manual providing instructions for use including the frequency for inspection and collecting container replacement such that the unit is replaced once it has reached the maximum filling level at which the device can perform to the specified efficiency.
