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 federal definition of uppermost aquifer for a CCR landfills has been incorporated under ch. NR 500, Wis. Adm. Code, 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 for at least 40 years after closure. 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. These monitoring well networks, which are already installed at CCR landfills, will be designated “CCR wells” and are in addition to the groundwater monitoring network already required under existing state regulations. CCR wells will monitor groundwater quality in the uppermost aquifer beneath the CCR landfill while the other groundwater monitoring wells already required under existing ch. NR 507, Wis. Adm. Code, will monitor groundwater quality within all water-bearing soil layers, even if they do not qualify as being within the uppermost aquifer. The CCR wells and existing wells will be sampled for the parameters and frequencies as indicated in the revised ch. NR 507, Wis. Adm. Code, 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 rule includes requirements for establishing a groundwater detection monitoring system, notification requirements, and recordkeeping. It also creates a design management zone (the distance from the waste boundary at which some monitoring systems must be placed) of 0 feet for CCR wells, 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. 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. Differences include the addition of an informational hearing to discuss the findings of the remedial action options report and the preparation of a remedial action options report immediately after confirmation of a potential release from the landfill rather than waiting until completion of the site investigation.Once an exceedance has been detected, the owner or operator would be required to notify the DNR 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 or operator would also have to begin “assessment monitoring,” which consists of sampling all the CCR wells for the ch. NR 507, Wis. Adm. Code, Appendix I, Table 3 parameters, within 90 days of the verified exceedance. 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, install at least one additional monitoring well, notify the potentially affected neighbors and submit a site investigation workplan to the DNR within 60 days unless the owner or operator could demonstrate that the exceedance was caused by natural or off-site sources. The owner or operator would then initiate a site investigation within 90 days of submittal of the workplan and prepare a site investigation report to the DNR within 60 days after completing the site investigation. Upon confirmation of a release from a CCR landfill or verification of a groundwater standard exceedance during assessment monitoring that was not caused by off-site or natural sources, the owner or operator would also have 90 days to prepare and submit an initial remedial action options report that will assess possible corrective actions. The DNR will review and respond to the remedial action options report and any addendums and hold an informational public meeting to discuss the results of the remedial action options report prior to selection of a remedial action. The owner or operator would select a remedy that, at a minimum, meets the standards listed in s. NR 508.06(4) and ch. NR 722, Wis. Adm. Code. The owner or operator must describe the selected remedy in the revision of the remedial action options report and include a section indicating how the selected remedy meets the remedial action standards. The DNR would review and approve an appropriate remedial action for implementation by the owner or operator. Within 90 days after the DNR approves a remedy from the remedial action report, the owner or operator would have to initiate remedial activities. Assessment monitoring would continue with semiannual sampling until there are at least two consecutive sampling rounds without any exceedance of a groundwater standard.
F.
NR 512 Feasibility Report for Landfills: The rule includes additional requirements for feasibility reports for CCR landfills, consistent with federal requirements, when a new landfill is being proposed. 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 s. NR 500.03(246), Wis. Adm. Code, and can include poor foundation conditions, areas susceptible to mass movements, and karst terrains. The rule also includes 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. CCR landfills 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 CCR waste and close the landfill. 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 s. NR 514.09(1)(b), Wis. Adm. Code, related to changes that are less stringent than a federally mandated requirement, because DNR 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 DNR 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 the 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 DNR 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 DNR 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 DNR 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 for both surface impoundments and landfills.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 DNR 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, groundwater, drinking water, and the air. By creating Wisconsin rules that are as protective as the federal rule, the DNR will continue to address risks from improper disposal of CCR.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: The proposed rule will affect four electric utility companies that are CCR landfill owners and operators. There are approximately 18 existing and new CCR landfill units under federal regulation, which when combined represent six solid waste landfill facilities under Wisconsin regulation. None of the electric utility companies meet the definition of a small business under s. 227.114(1), Wis. Stats.
11. Effect on Small Business (initial regulatory flexibility analysis):
The rule is not likely to have an impact on small businesses. CCR landfills are operated by electric utilities that do not meet the definition of a small business under s. 227.114(1), Wis. Stats. The proposed rule would modify Wisconsin regulations to incorporate requirements of the federal rule into Wisconsin’s existing rules to allow Wisconsin to apply for a CCR state permit program. Most of the changes in the proposed rule have already been implemented by the federal government and facilities have already complied with the federal rule. Any additional requirements as a result of the proposed rule are procedural requirements for initial permitting or related to the consolidation of state and federal requirements. Any additional cost as a result of this proposed rule will be related to a facility’s plan preparation for initial permitting and DNR review of plans or annual reports.
12. Agency Contact Person: Valerie Joosten, Department of Natural Resources, Northeast Region Headquarters, 2984 Shawano Ave., Green Bay, WI 54313; Valerie.Joosten@wisconsin.gov; (920) 366-4158 13. Place where comments are to be submitted and deadline for submission:
A public comment period for the rule occurred from October 4 to November 4, 2021, with a public hearing held on October 28, 2021.
The consent of the Attorney General will be requested for the incorporation by reference of alternative design requirements. Under the proposed rule, requests for alternative designs for CCR landfills must include a demonstration that the alternative design meets the federal requirements located under 40 CFR part 257 Subpart D dated April 17, 2015. RULE TEXT
Section 1 NR 500.02 (1) is renumbered NR 500.02 (1) (a) and amended to read:
NR 500.02 Applicability. (1) (a) Except as provided under par. (b) and except as otherwise provided, this chapter governs all solid waste facilities as defined in under s. 289.01 (35), Stats., except hazardous including all CCR landfills and expansions. (b) This chapter does not govern any of the following:
1. Hazardous waste facilities as defined in under s. 291.01 (8), Stats., and regulated under chs. NR 660 to 679; metallic. 2. Metallic mining operations for nonferrous minerals as defined in under s. 293.01 (9), Stats., and regulated under ch. NR 182; and metallic. 3. Metallic mining operations for ferrous minerals as defined in under s. 295.41 (26), Stats., including mining wastes and mining waste sites as defined in under s. 295.41 (30) and (31), Stats., and regulated under subch. III of ch. 295, Stats. Section 2 NR 500.03 (2m), (19m), (26b), (26f), (26k), (26p), (26s), (26w), (26y), (60m), (76m) are created to read:
NR 500.03 (2m) “Active portion” means that part of a CCR landfill that has received or is receiving CCR or non-CCR waste and that has not completed closure in accordance with ch. NR 506. (19m) “Beneficial use of CCR” means the utilization of a solid waste or an industrial by-product in a “productive manner,” which has the meaning given in s. NR 538.03 (10). (26b) “CCR” means coal combustion residuals, including fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated from burning coal for the purpose of generating electricity by electric utilities and independent power producers.
(26f) “CCR fugitive dust” means solid airborne particulate matter that contains or is derived from CCR, emitted from any source other than a stack or chimney.
(26k) (a) “CCR landfill” means a landfill that receives CCR, including nonmetallic mining sites under s. 295.11 (6), Stats., that receive CCR, and any area of land or excavation that receives CCR, including sand and gravel pits and quarries that receive CCR, CCR piles, and any practice that does not meet the definition of a beneficial use of CCR under s. NR 500.03 (19m). (b) “CCR landfill” does not include a CCR surface impoundment or municipal solid waste landfill that receives CCR.
(26p) (a) “CCR pile” means any non-containerized accumulation of solid, nonflowing CCR that is placed on the land.
(b) “CCR pile” does not include CCR that is stored for beneficial use of CCR or beneficially used under ch. NR 538. (26s) “CCR surface impoundment” means a natural topographic depression, man-made excavation, or diked area that is designed to hold an accumulation of CCR and liquids, and the unit treats, stores or disposes of CCR.
(26w) (a) “CCR unit” means any CCR landfill, CCR surface impoundment, lateral expansion of a CCR landfill, or a combination of more than one of these units.
(b) “CCR unit” includes both new and existing units, unless otherwise specified.
(26y) “CCR well” means a designated well installed at a CCR landfill whose location and depth have been approved by the department specifically for monitoring purposes under Subtitle D.
(60m) “Destruction or adverse modification” means a direct or indirect alteration of critical habitat that appreciably diminishes the likelihood of the survival and recovery of threatened or endangered species using that habitat.
(76m) (a) “Existing CCR landfill” means a CCR landfill that receives CCR both before and after October 19, 2015.
(b) “Existing CCR landfill” includes a CCR landfill for which construction commenced prior to October 19, 2015, and which receives CCR on or after October 19, 2015, where all of the following occurred:
1. The landfill owner or operator obtained all federal, state, and local approvals or permits to begin physical construction.
2. The landfill had a continuous on-site, physical construction program that began prior to October 19, 2015.
Section 3 NR 500.03 (96) is amended to read:
NR 500.03 (96) “Groundwater” means any waters of the state, as defined in s. 280.01(2) 281.01 (18), Stats., occurring in a saturated subsurface geological formation of rock or soil. Section 4 NR 500.03 (106m), (121m), (152m), (189m), (197) (Note), (246m), (254g), and (254r) are created to read:
(106m) “Hydraulic conductivity” means the rate at which water can move through a permeable medium and is also called the coefficient of permeability.
(121m) “Lateral expansion of a CCR landfill” means a horizontal expansion of the waste boundaries of an existing CCR landfill made after October 19, 2015.
(152m) (a) “New CCR landfill” means a CCR landfill or lateral expansion of a CCR landfill that first receives CCR after October 19, 2015.
(b) “New CCR landfill” includes a CCR landfill or lateral expansion of a CCR landfill that commences construction after October 19, 2015, where all of the following occurred:
