The statement of scope for this rule, SS 061-22 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 October 31, 2024. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
RENUMBERING AND AMENDING, AMENDING AND CREATING RULES
The Wisconsin Natural Resources Board adopts an order to renumber and amend NR 673.60 (1); to amend NR 660.10 (133) (c) and (134) (b) 1., 661.0009 (intro.), 664.0001 (7) (k) 3., 665.0001 (3) (n) 3., 673.01 (1) (c), 673.03 (2) (b), 673.09 (6), (9) and (12) (b) 1., 673.13 (3) (b) 3. and 4., 673.14 (4) (b), 673.32 (2) (d), 673.33 (3) (b) 3. and 4., 673.34 (4) (b), and 673.60 (2); to create NR 660.10 (3o) and (133) (e), 661.0009 (5), 664.0001 (7) (k) 5., 665.0001 (3) (n) 5., 668.01 (6) (e), 670.001 (3) (b) 8. e., 673.01 (1) (e) and (3), 673.06, 673.09 (1d) and (11) (e), 673.13 (5), 673.14 (6), 673.33 (5), 673.34 (6), and 673.60 (1) (a), (b), and (c), and (3) relating to modifying and expanding universal waste management regulations and affecting small business. |
WA-12-21
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: Sections 227.14 (1m), 289.06, 289.24, 289.30, 289.41, 289.46 and 289.67, Stats., ch. 291, Stats., and s. 299.53, 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). 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 the RCRA and the methods of treatment or disposal of particular hazardous wastes. 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 the EPA’s criteria for identifying the characteristics of hazardous waste, and to adopt the 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. Section 289.43, Stats., explains waivers and exemptions to solid waste regulations. 4. Related Statutes or Rules: Chapters 287, 291, 292, and 299, Stats., and chs. NR 2, 140, 141, 500 to 538, 662, 673, 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 the EPA in the following Federal Register, to the extent allowed by state law:
Increasing Recycling: Adding Aerosol Cans to the Universal Waste Regulations, December 9, 2019 (84 FR 67202)
Summary: This rule adds hazardous waste aerosol cans to the state’s universal waste program, in alignment with the federal RCRA regulations. Aerosol cans are used for dispensing a wide array of products including paints, solvents, pesticides, and personal care products and frequently contain flammable propellants such as propane or butane which can cause the aerosol can to demonstrate the hazardous characteristic for ignitability (s. NR 661.0021, Wis. Adm. Code), may contain materials that exhibit hazardous characteristics (subch. C of ch. NR 661), or may, when discarded, constitute a P- or U-listed hazardous waste if it contains a commercial chemical product found at ss. NR 661.0033 (5) and (6). In 1995, the EPA promulgated the Universal Waste Rule (60 FR 25492, May 11, 1995) to establish a streamlined hazardous waste management system for widely generated hazardous wastes as a way to encourage environmentally sound collection and proper management of those wastes. The universal waste regulations in ch. NR 673 are a set of alternative hazardous waste management standards that can operate in lieu of regulation under chs. NR 660 to 670. Under the Universal Waste Rule, destination facilities are those facilities that treat, store, dispose of, or recycle universal wastes. Universal waste destination facilities are subject to certain applicable requirements for hazardous waste treatment, storage, and disposal facilities (TSDFs) and certain activities may require a RCRA license. Destination facilities that recycle universal waste and that do not store that universal waste prior to recycling in accordance with s. NR 661.0006 (3) (b), may be exempt from There are eight factors to consider in evaluating whether a waste is appropriate for designation as a universal waste. These factors, found under s. NR 673.81, Wis. Adm. Code, are to be used to determine whether regulating a particular hazardous waste under the streamlined standards would improve overall management of the waste. As the EPA noted in the preamble to the final Universal Waste Rule (60 FR 25513), not every factor must be met for a waste to be appropriately regulated as a universal waste. However, consideration should result in a conclusion that regulating a particular hazardous waste under ch. NR 673 will improve waste management. The EPA added aerosol cans as a universal waste because they determined this waste stream met the factors that determine eligibility for management under the streamlined universal waste requirements. The eight factors and an explanation on how aerosol cans meet the universal waste requirements are summarized below:
_Int_zqE5qEqx1. The waste or category of waste, as generated by a wide variety of generators, is listed in subch. D of ch. NR 661 or, if not listed, a proportion of the waste stream exhibits one or more characteristics of hazardous waste identified in subch. C of ch. NR 661. Aerosol cans frequently demonstrate the hazardous characteristic for ignitability due to the nature of the propellant used. In addition, the contents (propellant or product) may also exhibit another hazardous characteristic and may also be a P- or U- commercial chemical product listed waste. 2. The waste or category of waste is not exclusive to a specific industry or group of industries and is commonly generated by a wide variety of types of establishments. The EPA has documented in the Federal Register (84 FR 67202) that large and small quantity generators managing hazardous waste aerosol cans can be found in 20 different industries including over 25,000 industrial facilities nationwide. Thus, aerosol cans are commonly generated by a wide variety of types of establishments, including retail and commercial businesses, office complexes, very small quantity generators, small businesses, and government organizations, as well as large industrial facilities.
3. The waste or category of waste is generated by a large number of generators (e.g., more than 1,000 nationally) and is frequently generated in relatively small quantities by each generator. As documented in the EPA Federal Register, more than 25,000 large and small quantity generators manage hazardous waste aerosol cans. Quantities generated vary depending on the type of generator and the situations associated with generation. The amount of waste remaining in a full aerosol can differ from the amount remaining in a can that is nearly empty. Data from the EPA indicated that in 2017, Large Quantity Generators generated an average of 1.6 tons per year each of aerosol cans (approximately 3,600 cans).
4. Systems to be used for collecting the waste or category of waste (including packaging, marking and labeling practices) would ensure close stewardship of the waste. The baseline universal waste
requirements of labeling, training, and response to releases found in ch. NR 673, Wis. Adm. Code, and the final specific requirements for management of aerosol cans in ss. NR 673.13 and 673.33, Wis. Adm. Code, are designed to ensure close stewardship of the hazardous waste aerosol cans. 5. The risk posed by the waste or category of waste during accumulation and transport is relatively low compared to other hazardous wastes, and specific management standards proposed or referenced by the petitioner (e.g., waste management requirements appropriate to be added to ss. NR 673.13, 673.33, and 673.52, Wis. Adm. Code, or applicable U.S. department of transportation requirements) would be protective of human health and the environment during accumulation and transport. Aerosol cans are designed to contain the product contents during periods of storage and transportation, and as they move from the manufacturer to the retailer, and ultimately to the final customer. Because of their design, hazardous waste aerosol cans present a relatively low risk compared to other types of hazardous wastes that are not contained under normal management conditions. Additionally, the risk posed by intact waste aerosol cans during storage and transport is similar to the risk posed by intact product aerosol cans. In addition, the ignitability risk posed during accumulation and transport is addressed by standards set by local fire codes, the United States Office of Safety and Health Administration, and the U.S. DOT. These standards include requirements for outer packaging, can design, and general pressure conditions. The EPA has determined that the requirements of the universal waste program are effective in mitigating risks posed by hazardous waste aerosol cans. Specifically, the requirements for handlers to accumulate aerosol cans in a container that is structurally sound and compatible with the contents of the aerosol cans will ensure safe management and transport.
In addition, the universal waste program requires proper training for employees when handling universal waste, responding to releases, and shipment in accordance with DOT regulations. These requirements will make the risks posed during accumulation and transport low.
Additionally, the final rule specific requirements for management of aerosol cans that are punctured and drained by the universal waste handler address the ignitability risk and are designed to help prevent releases. According to the EPA, the specific aerosol can universal waste management standards address the risks posed by hazardous waste aerosol cans.
