The statement of scope for this rule, SS 060-22, was approved by the Governor on June 30, 2022, published in Register No. 799A3 on July 18, 2022, and approved by the Natural Resources Board on October 26, 2022. This rule was approved by the Governor on insert date.
The Wisconsin Natural Resources Board proposes an order to amend NR 660.11 (1) and (Note) and 661.0021 (1) (a); and to repeal and recreate NR 660.11 (2), (3), (4), (5), (6) and (7) and 661.0021 (1) (c) and (d) relating to incorporating federal hazardous waste regulations promulgated since the previous authorization of the Wisconsin hazardous waste program, relating to updated test methods, and affecting small business.
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: Sections 227.14 (1m), 289.06, 289.24, 289.30, and 289.41, Stats.
3. Explanation of Agency Authority: The proposed rules and revisions would replace and update current state rules that comprehensively regulate the generation, transportation, recycling, treatment, storage, and disposal of hazardous and universal wastes. 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 U.S. Environmental Protection Agency (EPA) under the federal 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 nine specific objectives.
Section 227.11 (2) (a), Stats., provides that a state agency “may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute,” subject to certain restrictions.
Section 287.03 (1) (a), Stats., directs the department to promulgate rules to implement the Solid Waste Reduction, Recovery and Recycling program pursuant to ch. 287, Stats.
Sections 289.05 and 289.06, Stats., direct the department to promulgate rules establishing solid waste management standards. Pursuant to ss. 291.05 and 291.07, Stats., the department is required to promulgate rules for the implementation of RCRA and the methods of treatment or disposal of particular hazardous wastes.
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 utilize 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 these stated objectives, the legislature adopted a number of statutes setting out general and specific hazardous waste rulemaking authority. Section 291.05, Stats., for instance, 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.
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 authority relating to hazardous waste facility location, design, construction, operation, maintenance, closure, long-term care, negotiation and arbitration, financial responsibility and licensing and recycling.
4. Related Statutes or Rules: Chapters 287, 289, 291, 292, and 299, Stats., and chs. NR 2, 140, 141, 149, 500 to 538, 662 to 670, 700 to 754 and 812, Wis. Adm. Code.
5. Plain Language Analysis: The rule incorporates into state law changes made to federal hazardous waste regulations by EPA in the following Federal Register, to the extent allowed by state law:
Modernizing Ignitable Liquids Determinations, July 7, 2020 (85 FR 40594)
This rule updates the flash point test methods from 1978, 1979, and 1980 (required for determining if a liquid waste is an ignitable hazardous waste) to include current ASTM International (ASTM) standards. The rule will also define the term “aqueous” as “50% water by weight.” Included in the rule are updates to correct cross references to U.S. Department of Transportation (DOT) regulations and to remove obsolete information in the ignitability regulation. Finally, the rule contains alternatives to the use of mercury thermometers in the air sampling and stack emissions methods 0010, 0011, 0020, 0023A, and 0051 in SW-846. (Relaxation; EPA Checklist 243).
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: The rule revisions incorporate new RCRA hazardous waste regulations as promulgated on July 7, 2020, and adopted by EPA effective September 8, 2020, and clarify definitions and DOT language in the current rules.
The EPA directs states to comply with federal RCRA hazardous waste regulations, and Wisconsin state statutes direct the department to adopt and administer rules that are at least as stringent as the EPA’s RCRA regulations. The rule would capture promulgated federal hazardous waste regulations within state administrative rules and would enable the department to retain EPA authorization to administer the federal hazardous waste program in Wisconsin.
The current ignitability test method required in state rules refers to outdated standards and utilizes instrumentation that is no longer readily commercially available. For example, the standards require the use of mercury thermometers, which are becoming more difficult to acquire and calibrate due to their use and availability being phased out for environmental, health, and safety concerns. The adoption of the Modernizing Ignitable Liquid Determinations final federal rule would expand existing allowable test methods while retaining the current allowable procedures to provide entities increased flexibility.
The exclusion for specific aqueous alcohols from regulation as ignitable hazardous waste has been in place at the federal and state levels to allow some waste streams, such as latex paints and alcoholic beverages, to fall outside of RCRA regulation. These waste streams have low flash points but are unable to sustain combustion. The proposed rule change defines “aqueous” as “50% water by weight” and narrows the types of alcohol that would qualify as a hazardous waste, thereby potentially reducing the applicability of these requirements to certain entities. This rule would have no effect on the applicability of the discharge prohibitions presented in the Clean Water Act (CWA) national pretreatment standards for existing and new sources of pollution.
The EPA updates to the ignitability regulations correct cross references to DOT regulations and remove obsolete information. Specifically, the proposed rule change would modify the criteria for ignitable compressed gases and oxidizers to adhere more closely to the corresponding definitions in the DOT Hazardous Materials Regulations.
The rule revisions to incorporate both new and revised federal regulations as adopted by EPA will allow the department to maintain federal authorization of the hazardous waste program for these rules and to maintain program primacy. The proposed rule revisions are intended to meet the requirements of RCRA.
7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope: The department held an online preliminary public hearing on the statement of scope on October 6, 2022, at 2:00 p.m. Ninety-six people registered for the hearing and 73 members of the public attended the hearing.
There were no comments in support or opposition.
8. Comparison with Similar Rules in Adjacent States: Minnesota, Illinois, and Michigan have state-managed hazardous waste programs. In that capacity, these states are working to promulgate an equivalent to this rule and include these regulations as part of their respective EPA authorized programs. The status of rulemaking in each state is found below. Iowa does not have RCRA hazardous waste program authorization from EPA. Instead, EPA’s Region 7 office administers and enforces the RCRA hazardous waste management requirements in Iowa.
Minnesota, Michigan, and Illinois have not adopted the Modernizing Ignitable Liquid Rule.
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.