CR 24-063 Rule Text

The statement of scope for this rule, SS 088-22, was approved by the Governor on November 10, 2022, published in Register No. 803A2 on November 14, 2022, and approved by the Natural Resources Board on January 25, 2023. This rule was approved by the Governor on insert date.

ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD

REPEALING, RENUMBERING, RENUMBERING AND AMENDING, CONSOLIDATING, RENUMBERING, AND AMENDING; AMENDING, REPEALING AND RECREATING AND CREATING RULES

The Wisconsin Natural Resources Board proposes an order to amend NR 500.03 (11), (18), (120), (141), (160), and (208), 500.05 (1), (3), (6) (i), 500.065 (1) and (2), 500.07, 500.08 (4), 502.04 (1) (a) 2., and (b), 503.04 (3) (a), 503.07 (3), 503.09 (1), (6) Table 1, 503.10 (1) (d), (7) (bg), (7) Table 3, and Table 4, 504.02 (1) (b) 1., 504.04 (3) (intro.), and (d), 504.04 (4) (a) and (c), 504.05 (1), 504.06 (1) (a), (2) (f) 1., (3) (e), (5) (a), (c), (dm), (e), (q), and (t), 504.07 (1) (b), and (c), (4) (a) 14., (7), (8) (Note), (9) (c), 504.075 (3), (4) (b), and (9), 504.08 (1), (2) (intro.), 504.09 (1) (j), (2) (f), and (i), 504.10 (1) (a), (3) (intro.), and (4), 506.05 (1), 506.055 (3), 506.06, 506.07 (4), (5) (a) to (c), (g), 506.08 (3), (4) (Note), (5), and (6), 506.085 (2), and (3), 506.095 (3), (5), and (6), 506.10 (1) (b) 1., 506.105 (1) (a) 1., 506.13 (2), 506.17 (1) title, 506.19 (1), and (2) (e), 507.04 (2), (3), and (4), 507.05 (1) (b), and (c), 507.06 (1) (b), 507.07, 507.08 (2), 507.09, 507.14 (1), (5) (intro.), (a), and (Note), 507.15 (2) (d), and (e), (3) (h), and (k), 507.17 (4), 507.18 (1) (a), (2) (a), (3) (a), (4), (5) (a), 507.19 (intro.), 507.20 (3) (intro.), and (Note), 507.21 (2), 507.215 (intro.), 507.22 (1) (a), and (3), 507.23 (intro.), 507.26 (2) (a), (3) (intro.), (a), (Note), (b) (intro.), 1., 2., and 4., 507.29 (intro.), 507.30 (1) (a), and (2), 507 Appendix I Table 1, 1A, 2, 3, 4, and 5, 507 Appendix III, 508.04 (intro.), (3), 508.05 (2), (3) (b), (5) (a), 508.06 (2) (c), 509.04 (1), (2), (3), (5) intro, and (b), 509.05 (1), and (2), 509.06 (3), 512.06 (2), and (3), 512.09 (1) (d), (2) (e), (4) (e) to (g), and (5), 512.10 (4), 512.11 (3), and (5), 512.12 (2), 512.13 (1) (intro.), (2), 512.14 (intro.), 512.16 (2) (b), (4) (f), and (5) (Note), 514.04 (1), and (4), 514.05 (3), (7), and (11), 514.06 (3), (4), (8), (13), and (16), 514.07 (1) (j), (3) intro, (6m) (intro.), and (10) (a) 1. (intro.), 514.10 (2) (c), 516.04 (1), (3) (d) (intro.), (5) (intro.), and (b) to (e), 516.05 (intro.), (1) (a), (c), and (e), (2) (a), (e) (intro.), 1., and (f), 516.06 (intro.), (2) (a), (d), and (g), 516.07 (2) (a) (intro.), and 4., (c) 2., 4., and 5., and (2m) (a) 1. to 3., 518.07 (2) (f), 520.04 (1) (a), (b), (d) 3. to 5., (3), and (4) (intro.), and (a), 520.05 (1), Table 1, 520.06 (intro.), (3), (4), (6) (c), and (8), 520.07 (3), and (5), 520.08 (2) (a) 3., and 4., 520.09, 520.10 (2), 520.11, 520.13, 520.14 (3) (a), (b), (c) 3. to 5., 520.15 Table 2, 524.02 (2), 524.05 (intro.), (1), (3) (intro.), 524.08 (3) (d); to create NR 500.03 (42m), (93g), (123s), (124f), (126m), (152e), (156m), (195m), (232m), (242m), and (253s), 500.055, 500.058, 504.04 (3m), 504.06 (2m), 504.065, 504.07 (8) (a) to (c), 504.073, 504.08 (2) (o), 504.09 (2) (L), 506.07 (1) (u), (3) (d), (4g), (4g) (Note), (4r), and (5) (i), 506.08 (5) (Note), (7), (7) (Note), 506.081, 506.09 (3), 506.095 (7), and (8), 506.17 (1) (b), (3) (d) 12., and (5), 506.19 (3), and (4), 507.04 (3m), 507.14 (4) (c) to (e), 507.16 (1) (d) 7., 507.21 (3) (b), 507.22 (2) (b), 507.26 (2) (am), 507 Appendix I Table 4A, and 6, 512.05 (2), 512.06 (3) (Note), (4), 512.11 (6), 512.13 (2m), and (5), 512.14 (1) (g) to (h), and (2) (d), 512.16 (3) Note, 514.04 (6m), 514.045 (1) (e) (Note), 514.05 (10) (a), and (5m), 514.06 (10m), 514.07 (6m) (bm) to (hm), (11) to (14), 514.09 (1) (b) 10., and (2m), 516.04 (3) (d) 4., (5) (bg), and (7), 516.05 (1) (j), (2) (g), 516.06 (1) (j), 516.07 (1g), (6), 520.04 (1) (d) 6., and (4) (d) to (i), 520.14 (1m); to consolidate, renumber and amend: NR 504.04 (3) (e) (intro.) and 1.; to renumber and amend: NR 504.07 (8), 506.17 (1), 507.15 (2) (b) (intro.), 507.21 (3), 512.05, 512.13 (4) (intro.), 514.07 (1) (i), and (6m) (c), (c) 1. to 3., (d), and (e); to renumber: NR 507.22 (2) and 514.07 (6m) (a), and (b); to repeal and recreate NR 500.03 (77), 504.04 (2), 506.12, 507.15 (2) (title), 507.26 (3) (b) 4. a., b., and c., 507.27, 512.085, 512.09 (intro.), 520.15 Table 3; and to repeal NR 500.03 (37), (43), (130), (199), (235), and (242), 504.04 (3) (e) 2.,504.06 (2) (b), and (c), and (4) (a) (Note), 506.105 (3) (Note 2), 507.15 (2) (b) 1., and 2., 507.215 (3) (b), 507.26 (3) (b) 4. b. (Note), 510, 512.09 (2) (e) (Note), 512.13 (4) (a), and (b), 516.09, 520.04 (4) (b), and (c), 520.14 (1), (2), and (3) (c) 6., and 520.15 Table 5 relating to landfills, solid waste management fees, financial responsibility and reporting requirements and affecting small businesses.

WA-11-22

Analysis Prepared by the Department of Natural Resources

1. Statute Interpreted: Sections 289.05 (1) and (3), 289.06, 289.07, 289.21, 289.24, 289.29, 289.30, 289.31, 289.41, 289.42, and 289.61, Stats.

2. Statutory Authority: Sections 227.11 (2) (a), 289.05 (1) and (3), 289.06 (1), and 289.61, Stats.

3. Explanation of Agency Authority: Sections 289.05 (1) and (3), Stats., require the department to promulgate rules establishing minimum standards for construction, operation, and closure of solid waste facilities. Sections 227.11 (2) (a) and 289.06 (1), Stats., also confer rule making authority to the department to promulgate rules implementing ch. 289, Stats.

Section 289.61, Stats., requires the department to adopt by rule a graduated schedule of reasonable license and review fees to be charged for solid waste license and review activities. The statute requires the department to establish solid waste review fees at a level anticipated to recover the solid waste program staff review costs of conducting solid waste review activities.

4. Related Statutes or Rules: Sections 287.05 and 287.07, Stats., related to solid waste management priorities and prohibitions on land disposal.

5. Plain Language Analysis:

Wisconsin’s solid waste management rules were substantially revised in the 1990s to comply with federal municipal solid waste landfill requirements, with limited updates since that time. Wisconsin’s rules were developed to be as protective as the standards in the federal Resource Conservation and Recovery Act, commonly referred to as RCRA Subtitle D. This proposed rule amends portions of chs. NR 500 to 524, Wis. Adm. Code, to incorporate changes to solid waste landfill requirements, solid waste management fees, financial responsibility, and reporting requirements. This proposed rule reflects current industry standards and experience gained over the last 30 years related to the design, construction and operation of solid waste landfills while continuing to protect public health and the environment.

This rule proposes changes to regulations affecting municipal solid waste (MSW) landfills and industrial landfills. Many of these changes are designed to create consistency or provide additional clarity. As of May 2024, there were 58 active licensed municipal solid waste and industrial landfills and thousands of closed landfills in Wisconsin. The department also regulates landfills approved to accept only construction and demolition waste under ch. NR 503, Wis. Adm. Code. The rule does not change requirements in ch. NR 503 or plan review fees specific to construction and demolition landfills, but monitoring requirement changes or other requirements referenced in ch. NR 503 may minimally impact those landfills.

MSW landfills receive general household waste and receive other types of nonhazardous wastes, including commercial solid waste. Industrial landfills are designed to collect various commercial and institutional waste and often collect a majority of one type of waste, such as combustion ash, papermill sludge, or foundry sand. Both types must be designed and operated to meet certain criteria, including:

— Location restrictions that ensure landfills are built in suitable geological and geographical areas away from geological faults, wetlands, flood plains or other environmentally sensitive areas.

— Collection and removal systems for leachate, which is a liquid generated in landfills from the waste itself and when rainfall and snow melt come in contact with waste in landfills.

— Composite liner requirements along the bottom and sides of a landfill that protect groundwater and the underlying soil by preventing releases of leachate.

— Operating practices that include compacting waste and covering it daily with several inches of soil to help reduce odor, control litter, insects, and rodents, and protect public health.

— Groundwater monitoring requirements that require testing groundwater wells to determine whether waste materials have escaped from the landfill.

— Closure and post-closure care requirements that include covering landfills and providing long-term care of closed landfills.

— Financial responsibility requirements to ensure funding is available for environmental protection during and after landfill closure.

General Corrections and Clarifications

There are general corrections and clarifications to language throughout chs. NR 500, 504, 506, 507, 508, 509, 510, 512, 514, 516, 520, and 524, Wis. Adm. Code.

There are minor revisions related to recently updated code (CR 21-076 or Board Order WA‑17‑18, 2022) for coal combustion residual (CCR) landfills. These changes are required in order to obtain U.S. Environmental Protection Agency approval of a state permit program. To meet requirements, the department:

— Clarified the definitions of “Aquifer” and “Maximum horizontal acceleration in lithified earth materials.”

— Required that annual reports and inspection records be posted on publicly accessible internet sites.

— Required fugitive dust control plans must also include procedures to log citizen complaints received by the owner or operator involving CCR fugitive dust events at a CCR landfill.

Specific Changes within Each Chapter of Administrative Code

NR 500 – General Solid Waste Management Requirements

— Created new definitions for: bedrock and competent bedrock (and repealed related terms to reduce confusion), expand an existing landfill, gas monitoring well, leachate head, leachate seep, limits of disturbance, nurse crop, registered professional surveyor, underdrain system, and vertical-only expansion.

— Replaced the term “ultra low-level radioactive waste” with “Technologically enhanced naturally occurring radioactive material waste” or “TENORM waste.” TENORM is a more common term used nationally and means waste containing naturally occurring radioactive materials. The definition corresponds to changes at ch. NR 506.12, Wis. Adm. Code, that standardize protective placement requirements for landfills accepting TENORM waste materials.

— Clarified that submittal requirements are not complete until the appropriate fee is paid and that paper copies of submittals are only required upon request.

— Required that surveying of landfill boundaries and environmental monitoring devices, annual topographic surveys, or other activities as requested by the department must be conducted by a licensed professional land surveyor or by a qualified technician who is directly supervised by a licensed professional land surveyor.

NR 502 and 503 – Changes are made to match amendments in other chapters of code.

NR 504 - Landfill Location, Performance, Design and Construction Criteria

— Allowed reduced separation distance between the seasonal high groundwater table and the bottom of the clay component of a landfill liner if the design includes an underdrain system. The underdrain system shall be designed to maintain the projected seasonal high groundwater table below the top of the clay component of the liner in the sump areas and below the leachate line undercuts under gravity drained conditions.

— Allowed a reduced separation distance between the top of the competent bedrock surface and the bottom of the clay component if approved by the department in writing.

— Specified that geotextiles, which are permeable fabrics used as a layer to separate, filter, and protect, that are used to line leachate collection trenches and on top of landfill liners must be at least 16 ounces/yard2 rather than the current 12 ounces.

— Allowed a specific alternative landfill liner design than what is currently required in code for composite lined landfills (composite liners consisting of a 60-mil HDPE geomembrane and four foot thick clay liner are currently required for all municipal solid waste landfills). This is an option, not a requirement, for design of a landfill in areas that may have limitations on obtaining the current minimum four foot clay component for a landfill liner. It is expected that if a landfill chooses this option that uses a compacted sub-base and only three feet of clay in the liner design, it would be a large economic benefit because of the cost savings from not needing to purchase, transport, and place as much clay soil. The optional alternative design specifies:

— a minimum thickness of one foot prepared soil sub-base