New NRB Action on Environmental Rules

November 19, 2019

At its October meeting, the Wisconsin Natural Resources Board (NRB) took up a wide variety of environmental matters.  These items are discussed below.  Keep in mind that rules do not become effective upon adoption by the NRB.  Those rules still go through a legislative review process and need to be published before they become effective.

Water Quality Criteria for Bacteria

The NRB adopted updated water quality criteria for bacteria to be consistent with Environmental Protection Agency (EPA) requirements.  The criteria are intended to protect people that are recreating in Wisconsin’s waters.  Historically, the DNR has used fecal coliform as an indicator of bacteria.  More recent information, however, indicates that E. coli is a better indicator because it provides a better link between human illness and exposure to human fecal pollution.  In addition, Wisconsin currently has different standards for inland lakes and the Great Lakes, and these changes would make the standards consistent by using E. coli as the bacterial indicator.

Aligning water quality criteria with federal provisions will also permit Wisconsin to continue to obtain federal grants for beach monitoring and notification.  These resources are used by local communities to monitor beaches and alert citizens when beaches have water quality issues.

Phosphorus Water Quality Criteria for Petenwell Lake, Castle Rock Lake, and Lake Wisconsin

The NRB adopted site-specific phosphorus water quality criteria for Petenwell and Castle Rock Lakes, and Lake Wisconsin.  Every two years, Wisconsin is required to submit a list of “impaired” water bodies to the EPA.  Impaired water bodies are those that do not meet water quality standards for their designated uses.  While a substantial majority of the water bodies that are assessed meet water quality standards, Wisconsin currently has over 1,000 listings on the impaired water bodies list.

The Wisconsin River Basin is listed as impaired due to phosphorus.  To address this issue, the DNR established what is known as Total Maximum Daily Loads (TMDLs) for discharges of total phosphorus throughout the Wisconsin River Basin.  In essence, TMDLs establish the total amount of a pollutant that can be discharged into a water body and still meet the designated uses for the water body.  An amount is attributed to both nonpoint sources of phosphorus, such as runoff from agricultural areas, and point sources, such as discharges from industrial wastewater permit holders.  For permit holders, the amount of allowable discharge of phosphorus is ultimately translated into permit limits.

Wisconsin has a stringent statewide phosphorus water quality standard, but the NRB has the authority to promulgate a rule establishing site-specific criteria for waterbodies, if a standard is more stringent than necessary, or not stringent enough.    Petenwell and Castle Rock Lakes are large reservoirs on the Wisconsin River.  In this instance, the analysis concluded that the statewide phosphorus criteria were more stringent than needed to meet the designated uses for these water bodies (recreational and aquatic life).  Consequently, the DNR proposed “site specific” criteria for Petenwell and Castle Rock Lakesthat are less stringent than the statewide standards.

In contrast, the DNR determined that the statewide criterion for Lake Wisconsin, which frequently has algal blooms, was not protective of recreational uses.  Therefore, the DNR proposed a site-specific criterion for Lake Wisconsin that is more restrictive than the statewide criterion.

One of the impacts of having site-specific criteria for these three water bodies is that it changes the phosphorus discharge limits for other permittees subject to the TMDLs.  There are 109 permittees whose permit limits would change as a result of the adoption of these site-specific criteria.  The DNR estimates the majority of these permittees would have lower compliance costs, and the overall cost savings would be significant.

Grants for Lake and River Planning, Monitoring and Protection, and Aquatic Invasive Species

The NRB adopted a new administrative code chapter, consolidating and modifying the lake and river grant programs, which were contained in five different administrative code chapters.  These programs provide grants to governmental units and nonprofit organizations for two main purposes:

  • For planning projects to understand the condition of aquatic ecosystems and watersheds, collect information, conduct studies and create management plans; and
  • For management projects to protect and enhance water quality and aquatic habitat and prevent and control aquatic invasive species.

The table below specifies the types of grants that are available, cost share information, and other relevant information under the proposed rule:

Surface Water Grant Project Cost Share Table

This table lists the DNR cost-share percentage, maximum grant award, grantee match, maximum grant advance possible as a percentage of the grant award amount, and lake public access requirements of each project type under this chapter.
Grant Category Project Type DNR Cost Share Maximum Grant Award Grantee Match Maximum Grant Advance Public Lake Access Required
Education and Planning Grants Surface Water Education 67% $5,000 33% 75% No
Surface Water Planning $10,000
Comprehensive Planning for Lakes & Watersheds $25,000
County Lake Grants $50,000
Management Grants Healthy Lakes & Rivers 75% $25,000 25% 25% Project- specific
Surface Water Restoration (Lakes) $50,000
Surface Water Restoration (Rivers) $25,000
Management Plan Implementation (Lakes & Watersheds) $200,000 25% not to exceed

$25,000

Management Plan Implementation (Rivers) $50,000 25%
Ordinance Development $50,000 No
AIS Prevention $24,000 Yes
AIS Early Detection and Response $25,000 Project- specific
AIS Large-scale Population Management $150,000 25% not to exceed

$25,000

Yes
AIS Small-scale Population Management $50,000 25%
AIS Research and

Demonstration

$500,000 25% not to exceed

$25,000

No
Fee Simple Land and Easement Acquisition (Lakes) $200,000 100% of approved land value at escrow closing No
Fee Simple Land and Easement Acquisition (Rivers) $50,000
Wetland Restoration

Incentive

100% $10,000 0% 0 No
Lake Monitoring &

Protection Network

100% Up to 25% of lakes & AIS appropriation 0% N/A No

 

Hazardous Waste Rules Update

The NRB adopted updates to its hazardous waste rules (NR 600-679) to align its rules with federal hazardous waste requirements. The DNR is authorized by the federal EPA to manage a state program in lieu of the federal Resource Conservation and Recovery Act.  State rules must match up with federal rules to maintain authorization from the EPA for the hazardous waste program, and to obtain federal funding for the program.  These rules regulate the generation, transportation, recycling, treatment, storage, and disposal of hazardous waste, universal waste, pharmaceuticals, and used oil.

The rule package contains numerous modifications to the rules.  Some of the significant changes include:

Authorization to use electronic manifests as a means to track waste shipments; a change to the definition of solid waste and several recycling provisions to ensure that hazardous secondary material recycling regulations encourage reclamation; reorganization of the hazardous waste generator provisions to make them more user-friendly and thus improve usability and compliance; and inclusion of cost-saving, streamlined standards for handling hazardous waste pharmaceuticals.

Beneficial Use of Industrial Byproducts

The beneficial use rules were originally adopted in 1997.  The rules set forth a process by which certain industrial byproducts, including coal combustion byproducts, foundry sand, lime-kiln dust, and paper mill sludge, could be used in a variety of approved applications.  The rules were mainly self-implementing, with generators characterizing what is contained in their materials, using the materials for authorized applications, and reporting the materials used.

The DNR proposed to update this rule in order to “address new environmental standards, laws, and changes in manufacturing and air pollution control processes while continuing to encourage the beneficial use of waste materials that might otherwise be landfilled.”  Changes were made to the standards applicable to these byproducts, including to the water leach testing standards, and establishing bulk testing standards based on the potential ingestion and inhalation exposures.  The list of eligible uses for the byproducts was also updated.  In addition, a provision was added to the rules that allows an owner of property at which industrial byproducts were used for geotechnical fill to petition the DNR to excavate the fill and reuse or dispose of the fill.

At the NRB meeting, the Wisconsin Cast Metals Association raised concerns regarding some of the changes that were made in regard to foundry sand after the final meeting of the advisory committee that had worked on the rule package.  As a result of these concerns, the NRB delayed action of the rule package to allow time to try to address the concerns.

PFAS Rules

The NRB approved a preliminary hearing on three scope statements for rules relating to Per- and Polyfluoroalkyl Substances (PFAS), including Perfluorooctanesulfonic Acid (PFOS) and Perfluorooctanoic Acid (PFOA).  These rules would:

  • Add surface water quality criteria and analytical methods for PFAS, including PFOS and PFOA, and revise procedures in the Wisconsin Pollutant Discharge Elimination System (WPDES) permitting program to implement the new standards;
  • Set numerical standards to minimize the concentration of polluting substances in groundwater; and
  • Promulgate new drinking water maximum contaminant levels for PFAS, including PFOS and PFOA.

While the surface water quality criteria and the drinking water scope statements are specifically targeted at PFAS, the groundwater scope statement is not.  The DNR previously requested that the Wisconsin Department of Health Services (DHS) provide recommendations regarding potential new groundwater standards for some substances and potential changes to a number of existing groundwater standards.  DHS responded with its recommendation on June 21, 2019.  Those recommendations are available here:  https://www.dhs.wisconsin.gov/water/gws.htm .

Moreover, DNR has a pending request at DHS for additional groundwater standard recommendations for forty more substances, most of which are PFAS.  That request is available here: https://dnr.wi.gov/topic/Groundwater/NR140.html.

A preliminary hearing was held on these scope statements on November 12, 2019.

Electronic Recycling (E-Cycling)

The NRB authorized a preliminary hearing for a scope statement to change existing rules and create a new chapter of rules relating to electronic recycling.  Under Wisconsin electronic recycling law, manufacturers of televisions, computers, monitors, and desktop printers are required to register with the DNR the brands they sell to households and schools in Wisconsin.  The manufacturers also must recycle a target weight of electronics each year, based on their sales.  The manufacturers typically contract with state-registered recyclers and collectors to meet their targets.  Since the E-Cycle program began in January 2010, through June 2018, more than 280 million pounds of electronics have been recycled through the program.

The DNR plans to make a number of changes, including:

  • Modifying manufacturer registration fees to reduce or eliminate fees for some small electronics manufacturers;
  • Codifying the existing practice of allowing registered recyclers to sell credits for recycled pounds to other registered recyclers;
  • Strengthening owner financial responsibility requirements for recyclers to ensure that adequate funds are available to cleanup electronic facilities if necessary; and
  • Requiring most electronics recycling operations to obtain a solid waste processing license.

The hearing on the scope statement was held on November 4, 2019.

For more information about "New NRB Action on Environmental Rules," contact Patrick Stevens at pstevens@axley.com or 262.409.2296.