Proposed Rule2026-18552
Wisconsin: Approval of State Coal Combustion Residuals Permit Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 11, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA or the Agency) is proposing to approve the Wisconsin Coal Combustion Residuals (CCR) partial permit program under the Resource Conservation and Recovery Act (RCRA). After reviewing the CCR permit program application submitted by the Wisconsin Department of Natural Resources (WDNR), EPA has preliminarily determined that Wisconsin's CCR permit program meets the standard for partial approval under RCRA. If approved, Wisconsin's CCR permit program will operate in lieu of the Federal CCR program, with the exception of the specific provisions noted below. EPA is seeking comment on this proposal during a 60-day public comment period and will hold an online public hearing on EPA's preliminary approval of Wisconsin's partial CCR permit program.
Full Text
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<title>Federal Register, Volume 91 Issue 175 (Friday, September 11, 2026)</title>
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[Federal Register Volume 91, Number 175 (Friday, September 11, 2026)]
[Proposed Rules]
[Pages 57842-57854]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-18552]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 257
[EPA-HQ-OLEM-2026-4324; FRL-13374-01-OLEM]
Wisconsin: Approval of State Coal Combustion Residuals Permit
Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of availability; request for comments.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing to approve the Wisconsin Coal Combustion Residuals (CCR)
partial permit program under the Resource Conservation and Recovery Act
(RCRA). After reviewing the CCR permit program application submitted by
the Wisconsin Department of Natural Resources (WDNR), EPA has
preliminarily determined that Wisconsin's CCR permit program meets the
standard for partial approval under RCRA. If approved, Wisconsin's CCR
permit program will operate in lieu of the Federal CCR program, with
the exception of the specific provisions noted below. EPA is seeking
comment on this proposal during a 60-day public comment period and will
hold an online public hearing on EPA's preliminary approval of
Wisconsin's partial CCR permit program.
DATES: Comments due. Comments must be received on or before November
10, 2026. Public hearing: EPA will hold an online public hearing on
November 9, 2026. Please refer to the SUPPLEMENTARY INFORMATION section
for additional information on the public hearing.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2026-4324, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#21654e424a44557e6e6d646c614451400f464e57"><span class="__cf_email__" data-cfemail="682c070b030d1c3727242d25280d1809460f071e">[email protected]</span></a>. Include Docket ID No. EPA-HQ-
OLEM-2026-4324 in the subject line of the message.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Land and Emergency Management (OLEM) Docket, Mail
Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460.
<bullet> Hand Delivery or Courier (by scheduled appointment only):
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC 20004. The Docket Center's hours of
operations are 8:30 a.m.-4:30 p.m., Monday through Friday (except
Federal holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Michelle Lloyd, Office of Resource
Conservation and Recovery, Waste Identification Notice and Generators
Division, U.S. Environmental Protection Agency, 1200 Pennsylvania
Avenue NW, Washington, DC 20460; telephone number: (202) 566-0560;
email address: <a href="/cdn-cgi/l/email-protection#7e121211071a5013171d161b12121b3e1b0e1f50191108"><span class="__cf_email__" data-cfemail="214d4d4e58450f4c484249444d4d44614451400f464e57">[email protected]</span></a>. For more information on this
document please visit <a href="https://www.epa.gov/coal-combustion-residuals">https://www.epa.gov/coal-combustion-residuals</a>.
Table of Contents
I. Public Participation
A. Written Comments
B. Participation in Online Public Hearing
II. General Information
A. Overview of Proposed Action
B. Background
C. Statutory Authority
III. The Wisconsin Application
IV. EPA Analysis of the Wisconsin Application
A. Adequacy of the Wisconsin Permit Program
B. Adequacy of Technical Criteria
V. Wisconsin CCR Permits
A. Wisconsin's Permits Issued Under the State CCR Regulations
Are Not Part of the Permit Program Evidence Under Review
B. Status of Wisconsin's Previously-Issued Permits Issued Under
the State CCR Regulations
VI. Proposed Action
List of Acronyms
CCR coal combustion residuals
CFR Code of Federal Regulations
chs Chapters
EPA Environmental Protection Agency
EM Environmental Management
ES Enforcement Standard
ISI Initial Site Inspection
ISR Initial Site Report
MSWLF Municipal Solid Waste Landfill
NR Natural Resources
[[Page 57843]]
RCRA Resource Conservation and Recovery Act
TSD Technical Support Document
SLOH State Laboratory of Hygiene
USWAG Utility Solid Waste Activities Group
WDNR Wisconsin Department of Natural Resources
WIIN Water Infrastructure Improvements for the Nation
Wis. Adm. Code Wisconsin Administrative Code
Wis. Stats. Wisconsin Statutes
SUPPLEMENTARY INFORMATION:
I. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2026-
4324, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA may publish
any comment received to its public docket. Do not submit to EPA's
docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information you consider to
be Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
B. Participation in Online Public Hearing
EPA will begin pre-registering speakers for the hearing upon
publication of this document in the Federal Register. To register to
speak at the virtual hearing, please use the online registration form
available on EPA's CCR website (<a href="https://www.epa.gov/coal-combustion-residuals/us-state-wisconsin-coal-combustion-residuals-permit-program">https://www.epa.gov/coal-combustion-residuals/us-state-wisconsin-coal-combustion-residuals-permit-program</a>)
or contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to register to speak at the hearing. The last day to pre-
register to speak at the hearing will be November 5, 2026.
EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearing to run either ahead of schedule or behind schedule.
Additionally, requests to speak will be taken the day of the hearing
according to the procedures specified on EPA's CCR website for this
hearing (<a href="https://www.epa.gov/coal-combustion-residuals/us-state-wisconsin-coal-combustion-residuals-permit-program">https://www.epa.gov/coal-combustion-residuals/us-state-wisconsin-coal-combustion-residuals-permit-program</a>). The Agency will
make every effort to accommodate all speakers who arrive and register,
although preferences on speaking times may not be able to be fulfilled.
Each commenter will have five minutes to provide oral testimony.
EPA encourages commenters to provide EPA with a copy of their oral
testimony electronically (via email) to the person listed in the FOR
FURTHER INFORMATION CONTACT section. If EPA is anticipating a high
attendance, the time allotment per testimony may be shortened to no
shorter than three minutes per person to accommodate all those wishing
to provide testimony and who have pre-registered. While EPA will make
every effort to accommodate all speakers who do not pre-register,
opportunities to speak may be limited based upon the number of pre-
registered speakers. Therefore, EPA strongly encourages anyone wishing
to speak to pre-register. Participation in the virtual public hearing
does not preclude any entity or individual from submitting a written
comment.
EPA may ask clarifying questions during the oral presentations but
will not respond to the presentations at that time. Written statements
and supporting information submitted during the comment period will be
considered with the same weight as oral comments and supporting
information presented at the public hearing. Verbatim transcripts of
the hearings and written statements will be included in the docket for
this action.
Please note that any updates made to any aspect of the hearing will
be posted online on EPA's CCR website (<a href="https://www.epa.gov/coal-combustion-residuals/us-state-wisconsin-coal-combustion-residuals-permit-program">https://www.epa.gov/coal-combustion-residuals/us-state-wisconsin-coal-combustion-residuals-permit-program</a>). While EPA expects the hearing to go forward as set
forth above, please monitor our website or contact the person listed in
the FOR FURTHER INFORMATION CONTACT section to determine if there are
any updates. EPA does not intend to publish a document in the Federal
Register announcing updates.
If you require the service of a translator, please pre-register for
the hearing and describe your needs on the registration form by October
26, 2026. If you require special accommodations such as audio
description or closed captioning, please pre-register for the hearing
and describe your needs on the registration form by October 26, 2026.
Alternatively, registrants may notify the person listed in the FOR
FURTHER INFORMATION CONTACT section of any special needs. EPA may not
be able to arrange accommodations without advance notice.
II. General Information
A. Overview of Proposed Action
On April 17, 2015, EPA published a final rule, creating 40 CFR part
257, subpart D,\1\ which establishes a comprehensive set of minimum
Federal requirements for the disposal of CCR in landfills and surface
impoundments (80 FR 21302) (Federal CCR regulations). Section 2301 of
the 2016 Water Infrastructure Improvements for the Nation (WIIN) Act
amended RCRA section 4005 to create a new subsection (d) that requires
EPA to establish a Federal CCR permitting program. See 42 U.S.C.
6945(d).
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\1\ Unless otherwise specified, all references to parts 239 and
257 in this document are to title 40 of the Code of Federal
Regulations (CFR).
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As amended, RCRA section 4005(d) also allows States to seek
approval for a State CCR permit program that will operate in lieu of a
Federal CCR permit program in the State. The statute provides that
within 180 days after a State submits a complete application to the
Administrator for approval, EPA shall approve the State permit program
if the Administrator determines that the State program requires each
CCR unit located in the State to achieve compliance with either the
Federal requirements or other State requirements that EPA determines,
after consultation with the State, are at least as protective as those
included in the Federal CCR regulations. See 42 U.S.C. 6945(d)(1)(B).
On February 24, 2026, WDNR submitted its State CCR permit program
application to EPA Region 5 requesting approval of the State's partial
CCR permit program.\2\ EPA is proposing to approve the Wisconsin
partial CCR permit program pursuant to RCRA section 4005(d)(1)(B). 42
U.S.C. 6945(d)(1)(B). The fact that Wisconsin is seeking approval of a
partial program does not mean it must subsequently apply for full
program approval. However, Wisconsin could apply for
[[Page 57844]]
revised partial program approval or full program approval at some point
in the future if it chooses to do so. If approved, the Wisconsin CCR
permit program will operate in lieu of the Federal CCR program
(codified at 40 CFR part 257, subpart D), with the exception of the
provisions specifically identified below for which the State is not
seeking approval and for which the corresponding provisions of the
Federal CCR program would remain in effect. However, even for the
approved provisions, EPA would retain its inspection and enforcement
authorities under RCRA sections 3007 and 3008, 42 U.S.C. 6927 and 6928,
consistent with EPA's ongoing oversight authority under RCRA. See 42
U.S.C. 6945(d)(4)(B).
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\2\ State of Wisconsin Coal Combustion Residuals Permit Program
Application Packet. Application to USEPA Region V for CCR Permit
Program Approval for CCR landfills in accordance with section
4005(d) of the Resource Conservation and Recovery Act. February
2026.
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EPA has also engaged Federally recognized Tribes within the State
of Wisconsin in consultation and coordination regarding the program
approval for the determination. EPA has established opportunities for
coordination and consultation. Tribal consultation has been and will
continue to be conducted in accordance with the EPA policy on
Consultation and Coordination with Indian Tribes.\3\
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\3\ Letters from Cecilia Alford, USEPA to Tribal Leaders in
Wisconsin regarding the Tribal Consultation on Wisconsin's Coal
Combustion Residuals Permit Program Application. July 2026. The 14
letters are in the docket for this action.
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B. Background
CCR are generated from the combustion of coal, including solid
fuels classified as anthracite, bituminous coal, subbituminous coal,
and lignite, for the purpose of generating steam to power a generator
to produce electricity or electricity and other thermal energy by
electric utilities and independent power producers. CCR, commonly known
as coal ash, include fly ash, bottom ash, boiler slag, and flue gas
desulfurization materials. CCR can be sent offsite for disposal or
beneficial use, or disposed of in on-site landfills or surface
impoundments. This section summarizes EPA's regulatory actions on CCR
to date to provide relevant background on this proposed approval of
Wisconsin's partial CCR permit program.
On April 17, 2015, EPA published a final rule creating 40 CFR part
257, subpart D, which established a comprehensive set of minimum
Federal requirements for the disposal of CCR in landfills and surface
impoundments (80 FR 21302). The rule created a self-implementing
program that regulates the location, design, operating criteria, and
groundwater monitoring and corrective action for CCR units, as well as
the closure and post-closure care of CCR units. It also requires
recordkeeping and notifications for CCR units. EPA has since amended 40
CFR part 257, subpart D on August 5, 2016 (81 FR 51802), July 30, 2018
(83 FR 36435), August 28, 2020 (85 FR 53516), November 12, 2020 (85 FR
72506), May 8, 2024 (89 FR 38950), November 8, 2024 (89 FR 88650), and
February 10, 2026 (91 FR 5806). More information on these rules is
provided in the Technical Support Document in the docket for this
document.\4\
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\4\ USEPA Technical Support Document for the Approval of
Wisconsin's Coal Combustion Residuals Permit Program. U.S.
Environmental Protection Agency, Office of Land and Emergency
Management (5304T), 1200 Pennsylvania Avenue NW, Washington, DC
20460. August 2026
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C. Statutory Authority
EPA is issuing this proposed action pursuant to RCRA sections
4005(d) and 7004(b)(1). See 42 U.S.C. 6945(d) and 6974(b)(1). As
amended by section 2301 of the 2016 WIIN Act, RCRA section 4005(d)
instructs EPA to establish a Federal permit program similar to those
under RCRA subtitle C and other environmental statutes and authorizes
States to develop their own CCR permitting programs that go into effect
in lieu of the Federal permit program upon approval by EPA. See 42
U.S.C. 6945(d).
Under RCRA section 4005(d)(1)(A), 42 U.S.C. 6945(d)(1)(A), States
seeking approval of a State CCR program must submit to the
Administrator ``in such form as the Administrator may establish,
evidence of a permit program or other system of prior approval and
conditions under state law for regulation by the State of coal
combustion residuals units that are located in the state.'' The statute
provides that EPA shall approve a State CCR permit program if the
Administrator determines that the State program will require each CCR
unit located in the State to achieve compliance with either: (1) The
Federal CCR requirements at 40 CFR part 257, subpart D; or (2) Other
State criteria that the Administrator, after consultation with the
State, determines to be ``at least as protective as'' the Federal
requirements. 42 U.S.C. 6945(d)(1)(B). The Administrator must make a
final determination, after providing for public notice and an
opportunity for public comment, within 180 days of receiving a State's
complete submittal of the information specified in RCRA section
4005(d)(1)(A). 42 U.S.C. 6945(d)(1)(B). EPA may approve a State CCR
permit program in whole or in part. Id. Once approved, the State permit
program operates in lieu of the Federal requirements. 42 U.S.C.
6945(d)(1)(A). In a State with a partial program, only the State
requirements that have been approved by EPA operate in lieu of the
Federal requirements, and facilities remain responsible for compliance
with all remaining Federal requirements in 40 CFR part 257.
As noted above, the Federal CCR regulations are self-implementing,
meaning that CCR landfills and surface impoundments must comply with
the terms of the regulations prior to obtaining a Federal permit or a
permit issued by an approved State. Noncompliance with the Federal CCR
regulations can be the subject of an enforcement action brought
directly against the facility. Once a final CCR permit is issued by an
approved State or pursuant to a Federal CCR permit program, however,
the terms of the permit apply in lieu of the terms of the Federal CCR
regulations and/or requirements in an approved State program, and RCRA
section 4005(d)(3) provides a permit shield against direct enforcement
of the applicable Federal or State CCR regulations (meaning the
permit's terms become the enforceable requirements for the permittee).
RCRA section 7004(b), which applies to all RCRA programs, directs
that ``public participation in the development, revision,
implementation, and enforcement of any . . . program under this chapter
shall be provided for, encouraged, and assisted by the Administrator
and the States.'' 42 U.S.C. 6974(b)(1). Accordingly, EPA considers
permitting requirements, requirements for compliance monitoring
authority, requirements for enforcement authority, and requirements for
intervention in civil enforcement proceedings in evaluating State CCR
permit program applications.
Once a State CCR permit program is approved, the Administrator must
review the approved program no less frequently than every 12 years, no
later than three years after a revision to an applicable section of 40
CFR part 257, subpart D, and no later than one year after any
unauthorized significant release from a CCR unit located in the State.
EPA also must review an approved State CCR permit program at the
request of another State alleging that the soil, groundwater, or
surface water of the requesting State is or is likely to be adversely
affected by a release from a CCR unit in the approved State. See 42
U.S.C. 6945(d)(1)(D)(i)(I) through (IV).
In a State with an approved State CCR permit program, EPA may
commence administrative or judicial enforcement actions under RCRA
section 3008, 42
[[Page 57845]]
U.S.C. 6928, if the State requests assistance or if EPA determines that
an EPA enforcement action is likely to be necessary to ensure that a
CCR unit is operating in accordance with the criteria of the State's
permit program. 42 U.S.C. 6945(d)(4). EPA can enforce any Federal
requirements that remain in effect (i.e., those for which there is no
corresponding approved State provision). EPA may also exercise its
inspection and information gathering authorities under RCRA section
3007 in a State with an approved program. 42 U.S.C. 6927.
III. The Wisconsin Application
EPA began working with Wisconsin in 2020 as the State developed its
application for the State's partial CCR permit program. As it has with
other States, EPA discussed with Wisconsin the process for EPA to
review and approve the State's CCR permit program, Wisconsin 's
anticipated timeline for submitting a CCR permit program application to
EPA, and Wisconsin's regulations for issuing permits. As discussed
further below, Wisconsin is only seeking approval to regulate CCR
landfills, and the State's CCR regulatory program for CCR landfills is
structured differently than the Federal CCR regulations. Specifically,
WDNR has regulated CCR landfills the same as other non-hazardous waste
landfills since it implemented its solid waste program in 1992 in the
Wisconsin Administrative Code (Wis. Adm. Code). To ensure the State CCR
landfills are subject to a program that is at least as protective as
the Federal CCR regulations, the State revised the applicable sections
of the Wis. Admin. Code to incorporate additional CCR specific
requirements.
Accordingly, EPA and WDNR held numerous detailed conversations
about differences in applicable requirements for liner design,
groundwater monitoring parameters, groundwater monitoring well
placement, detection monitoring, assessment monitoring, closure, post-
closure care, recordkeeping and WDNR's plan of operation, and
permitting requirements. WDNR shared drafts of the State rules with EPA
for comment. After WDNR finalized its rules, WDNR also sent several
drafts of the State CCR permit program application to EPA for review to
ensure that the State program would be at least as protective as the
Federal CCR regulations.
On February 24, 2026, WDNR submitted its CCR permit program
application to EPA Region 5 requesting approval of Wisconsin's partial
CCR permit program.<SUP>5 6</SUP> In response to EPA comments, on
August 13, 2026, WDNR provided a supplement to its Narrative
description.\7\
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\5\ Letter from Steven Little, for Karen Hyun, Deputy Secretary,
Wisconsin Department of Natural Resources to Ane Vogel, Regional
Administrator, United States Environmental Protection Agency Region
V. State of Wisconsin Coal Combustion Residual Program Application.
February 20, 2026.
\6\ State of Wisconsin Coal Combustion Residuals Permit Program
Application Packet. Application to USEPA Region V for CCR Permit
Program Approval for CCR landfills in accordance with section
4005(d) of the Resource Conservation and Recovery Act. February
2026.
\7\ State of Wisconsin Coal Combustion Residuals Permit Program
Application Supplement. Application to USEPA Region V for CCR Permit
Program Approval for CCR landfills in accordance with section
4005(d) of the Resource Conservation and Recovery Act. August 2026.
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IV. EPA Analysis of the Wisconsin Application
RCRA section 4005(d) requires EPA to evaluate two components of a
State CCR permitting program to determine whether it meets the standard
for approval: the program itself, and the technical criteria that will
be included in each permit issued under the State program. This section
discusses EPA's review of both requirements under RCRA section 4005(d)
and the criteria EPA uses to conduct this review.
First, EPA must evaluate the permit program itself (or other system
of prior approval and conditions). See 42 U.S.C. 6945(d)(1)(A) through
(B). RCRA section 4005(d)(1)(A) directs the State to provide evidence
of a State permit program's compliance with RCRA requirements in such
form as determined by the Administrator. In turn, RCRA section
4005(d)(1)(B) directs EPA to approve the State program based upon a
determination that the program ``requires each coal combustion
residuals unit located in the state to achieve compliance with the
applicable [Federal or State] criteria.'' In other words, the statute
directs EPA to determine that the State has sufficient authority to
require compliance at all CCR units located within the State. See also
42 U.S.C. 6945(d)(1)(D)(ii)(I). To make this determination, EPA
evaluates the State's authority to issue permits and impose conditions
in those permits, as well as the State's authority to conduct
compliance monitoring and enforcement.
During this review of the State permit program, EPA also determines
whether the program contains procedures consistent with the public-
participation directive in RCRA section 7004(b). RCRA section 7004(b),
which applies to all RCRA programs, directs that ``public participation
in the development, revision, implementation, and enforcement of any .
. . program under this chapter shall be provided for, encouraged, and
assisted by the Administrator and the States.'' 42 U.S.C. 6974(b)(1).
To make this determination, EPA evaluates the State's public
participation procedures for issuing permits and for intervention in
civil enforcement proceedings.
Although 40 CFR part 239 applies to the approval of State Municipal
Solid Waste Landfill (MSWLF) programs under RCRA section 4005(c)(1)
rather than EPA's evaluation of CCR permit programs under RCRA section
4005(d), the specific criteria outlined in that regulation provide a
helpful framework to examine the relevant aspects of a State's CCR
permit program. States are familiar with these criteria because all
States have MSWLF programs that have been approved pursuant to these
regulations, and the regulations are generally regarded as protective
and appropriate.
Consequently, EPA relied on the four categories of criteria
outlined in 40 CFR part 239 as guidelines to evaluate the Wisconsin CCR
permit program: permitting requirements, requirements for compliance
monitoring authority, requirements for enforcement authority, and
requirements for intervention in civil enforcement proceedings.
Second, EPA must evaluate the technical criteria that will be
included in each permit issued under the State CCR permit program to
determine whether they are the same as the Federal criteria, or to the
extent they differ, whether the modified criteria are ``at least as
protective as'' the Federal requirements. See 42 U.S.C. 6945(d)(1)(B).
Only if both components meet the statutory requirements may EPA approve
the program. See 42 U.S.C. 6945(d)(1). EPA makes this determination by
comparing the State's technical criteria to the corresponding Federal
criteria and, where necessary, evaluating whether different State
criteria are at least as protective as the Federal criteria.
Upon careful review, and as discussed in more detail below, EPA has
preliminarily determined that Wisconsin's partial CCR permit program
includes all the elements of an adequate State CCR permit program. It
also contains all the technical criteria in 40 CFR part 257, subpart D,
except for the provisions specifically discussed below that Wisconsin
has not included in its partial permit program. Consequently, EPA is
proposing to approve the entirety of Wisconsin's partial CCR permit
program application. The State's CCR permit program does not encompass
the
[[Page 57846]]
full scope of Federal CCR requirements as presently constituted, and
the provisions of the Federal CCR regulations that are not part of
State's approved CCR permit program will remain directly applicable to
affected CCR units. 42 U.S.C. 6945(d)(1)(B).
EPA's full analysis of the Wisconsin CCR permit program, and how
the Wisconsin regulations differ from the Federal requirements, can be
found in the Technical Support Document. EPA determined that the
Wisconsin CCR permit program application was complete and notified
Wisconsin of its determination by letter.\8\
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\8\ Completeness Letter Wisconsin CCR permit program, signed
September 2026.
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A. Adequacy of the Wisconsin Permit Program
Section 4005(d)(1)(A) of RCRA, 42 U.S.C. 6945(d)(1)(A), requires a
State seeking State CCR permit program approval to submit to EPA, ``in
such form as the Administrator may establish, evidence of a permit
program or other system of prior approval and conditions under State
law for regulation by the State of coal combustion residuals units that
are located in the State.'' Although the statute directs EPA to
establish the form of such evidence, the statute does not require EPA
to promulgate regulations governing the process or standard for
determining the adequacy of such State programs. EPA, therefore,
developed the Coal Combustion Residuals State Permit Program Guidance
Document; Interim Final (82 FR 38685, August 15, 2017) (the ``Guidance
Document''). The Guidance Document provides recommendations on a
process and standards that States may choose to use to apply for EPA
approval of its CCR permit programs, based on the standards in RCRA
section 4005(d), existing regulations at 40 CFR part 239, and the
Agency's experience in reviewing and approving State programs.
EPA evaluated the Wisconsin CCR permit program using the process
and statutory and regulatory standards discussed in Units II.C. and
IV.A. of this preamble. EPA's findings are summarized below and
provided in more detail in the Technical Support Document located in
the docket supporting this proposed determination.
1. Guidelines for Permitting
In EPA's judgment, an adequate State CCR permit program must ensure
that: (1) Existing and new facilities are permitted or otherwise
approved and in compliance with either 40 CFR part 257 or other State
criteria; (2) The State has the authority to collect all information
necessary to issue permits that are adequate to ensure compliance with
relevant 40 CFR part 257, subpart D requirements; and (3) The State has
the authority to impose requirements for CCR units adequate to ensure
compliance with either 40 CFR part 257, subpart D, or such other State
criteria that have been determined and approved by the Administrator to
be at least as protective as 40 CFR part 257, subpart D.
In Wisconsin, a State permit is required for all CCR units under
section 289.31 Wis. Stats.: ``No person may operate a solid waste
facility or hazardous waste facility unless the person obtains an
operating license from the department.'' There is no expiration for an
operating license or plan of operation approval; however, the facility
is required to follow the proposed development, filling, and closure
sequencing in the plan of operation or request a modification to the
plan of operation. Section NR 514.07(10), Wis. Adm. Code, has
additional requirements for CCR landfill plans of operation, including
that the plan of operation be updated every 10 years during the
landfill's active life to comply with new regulations put in place
since initial issuance of the permit or since the last update.
Procedures for evaluating proposed new and expanded solid waste
landfills are defined more specifically in chs. NR 500 to 520, Wis.
Adm. Code. As described on pages 21-22 of the TSD, and documented in
Wisconsin permitting forms, the State has the authority to collect all
information necessary to issue permits that are adequate to ensure
compliance with relevant 40 CFR part 257, subpart D requirements as
documented in NR 509, NR 512, and 514. The minimum submittal
requirements are found in chs. NR 509 for an ISR, NR 512 for a
feasibility report, NR 514 for a plan of operation, and NR 520 for
financial responsibility. Additionally, section NR 512.06(3), Wis. Adm.
Code, allows WDNR to require an applicant to submit any additional
information found necessary to establish the feasibility of a proposed
solid waste landfill. Other applicable requirements are found in chs.
NR 504 for location, performance, design and construction criteria, NR
506 for operational criteria, NR 507 for environmental monitoring, NR
508 for responses when a groundwater standard is attained or exceeded,
NR 509 for initial site inspections (ISI), and NR 516 for construction
documentation.
Simultaneous with the WDNR technical decision-making process, an
applicant must seek and obtain any applicable local approvals, and
municipalities are allowed to negotiate and arbitrate with applicants
proposing a landfill by adopting siting resolutions. section 289.22,
Wis. Stats. The negotiated/arbitrated awards cannot be less stringent
than what is contained in WDNR rules and technical conditions of
approval. Chapter 289, Wis. Stats., requires all information submitted
to WDNR regarding a feasibility report to also be submitted to all
affected municipalities (i.e., any host county, township, village or
city as well as any municipalities within 1,500 feet of the proposed
landfill) and the main public libraries in those municipalities.
Section 289.31, Wis. Stats., allows WDNR to deny, suspend or revoke
the operating license of a solid waste facility for grievous and
continuous failure to comply with the approved plan of operation.
Under s. NR 514.04(6), Wis. Adm. Code, an owner, or operator of a
landfill may propose changes to the approved plan of operation. The
changes are required to be submitted to WDNR for review and may not be
implemented until WDNR issuance of a plan of operation approval
modification. The review time for a complete plan of operation
modification is 65 business days under s. NR 500.07, Wis. Adm. Code.
Plan approval modification decisions are reviewable through judicial
review under ss. 227.52 and 227.53, Wis. Stats., but are not subject to
administrative contested case hearings.
There is no differentiation between major and minor plan
modifications; however, WDNR does have an expedited plan modification
process under s. NR 514.09, Wis. Adm. Code, which only applies to
specific types of modifications or those that are considered to pose
low potential risk of adverse impacts on public health or the
environment and that would not result in a violation of a statute or
administrative rule, and would not require the issuance of an
exemption. Some examples of modifications eligible for expedited
modifications include, but are not limited to, (1) Use of an alternate
borrow source, (2) Soil daily cover, and (3) Access roads within a
landfill. Specific limitations apply to the use of expedited plan
modifications and the review time is 30 calendar days. In general, WDNR
expects that most plan modifications for CCR landfills would be routine
plan of operation modifications and not expedited plan modifications
because of the regulatory limitations and additional time for
[[Page 57847]]
public participation requirements discussed below.
Excluding the plan of operation for initial permitting that
requires at least 60 days notification, the owner or operator of a CCR
landfill is required to notify WDNR at least 30 days prior to the
submittal of a plan of operation modification affecting the closure
plan, liner system, leachate system, or changes that reduce the
stringency of groundwater monitoring requirements to WDNR and post the
draft plan of operation modification on its publicly accessible
internet site. NR 514.04(8), Wis. Adm. Code. WDNR will post the draft
plan of operation modification on its internet site and hold a public
meeting if, within 30 days after posting the draft plan of operation on
the WDNR's internet site, any county, city, village or town, the
applicant, or any 6 or more persons file a written request for a public
meeting with WDNR.
EPA has preliminarily determined that the Wisconsin approach to CCR
permit applications and approvals is adequate, and that this aspect of
the Wisconsin CCR permit program meets the standard for program
approval.
2. Guidelines for Public Participation
Based on RCRA section 7004, 42 U.S.C. 6974, it is EPA's judgment
that an adequate State CCR permit program will ensure that: (1)
Documents for permit determinations are made available for public
review and comment; (2) Final determinations on permit applications are
made known to the public; and (3) Public comments on permit
determinations are considered and significant comments are responded to
in the permit record. EPA's review of Wisconsin's CCR permit program
indicates that the State has adopted public participation procedures
that allow interested parties to talk openly and frankly about permit
issues and search for mutually agreeable solutions to differences in
views. An overview of Wisconsin's public participation provisions is
provided below.
Wisconsin's CCR landfill permitting program provides for public
participation by making documents for permit determinations available
for public review and comment, making final determinations on permit
applications known to the public, and considering public comments on
permit determinations. In order that WDNR might receive public comments
and allow for the request of a hearing pursuant to section 289.25(3),
Wis. Stats., a class 1 public notice is published in the local
newspaper when a feasibility report has been deemed to contain the
minimum information required to be submitted and the requirements of
the environmental review process have been addressed.
If complete, WDNR will provide written notice of completeness and
post a class 1 notice under ch. 985, Wis. Stats., in the official
newspaper designated under s. 985.04 or 985.05, Wis. Stats., or, if
none exists, in a newspaper near the landfill. A copy of the notice and
the plan of operation modification submittal will also be posted on
WDNR's internet site and NR 506.17(d) requires posting on the
facility's CCR landfill public accessible internet site.
Before certain WDNR decisions, WDNR must provide opportunities for
public comment upon the following documents submitted by CCR landfill
owners/operators:
<bullet> Plan of operation modification report--60-day comment
period.
<bullet> Draft decision issued by WDNR--60-day comment period.
<bullet> Draft plan of operation or plan of operation modifications
after initial permitting--30-day comment period.
<bullet> Feasibility report for new or expanded facility--30-day
comment period.
WDNR must hold public hearings during the comment periods upon
submittal of the following documents:
<bullet> Plan of operation modification report--WDNR holds a
virtual or in-person public meeting during the 60-day comment period to
receive oral comments on the complete submittal.
<bullet> Draft plan of operation or plan of operation modifications
after initial permitting--These plans are required to be posted for
public comment for at least 30 days. During this time, any county,
city, village or town, the applicant, or any six or more individuals
may file a written request for a public meeting with WDNR. If a public
meeting is held, WDNR will solicit public comments on the report at the
meeting.
Feasibility report for new or expanded facility--During public
comment period any county, city, village or town, the applicant, or any
6 or more persons can request an informational hearing or, if certain
other requirements are met, a contested case hearing.
WDNR is required to grant an informational or a contested case
hearing on a proposed solid waste landfill at the feasibility report
stage to anyone who has standing as established in sections 289.26 or
289.27, Wis. Stats. In order that WDNR might receive public comments
and allow for the request of a hearing pursuant to section 289.25(3),
Wis. Stats., a class 1 public notice is published in the local
newspaper when a feasibility report has been deemed to contain the
minimum information required to be submitted and the requirements of
the environmental review process have been addressed. All written or
verbal comments received from the public are considered by WDNR before
making a feasibility determination.
If an informational hearing is held, a hearing officer will preside
over the proceeding to give the landfill applicant an opportunity to
present information regarding the proposed facility, followed by an
opportunity for the public to present comments to WDNR on the proposed
facility and content of the feasibility report and environmental
analysis. If a contested case hearing is held, it is held before a
hearing examiner in much the same way as a court trial. The petitioners
of the hearing, the landfill applicant, and WDNR review staff present
information during the hearing through exhibits, depositions,
affidavits and witness testimony. The information presented at the
hearing becomes the official hearing record and is then used by the
WDNR Secretary or their designee to make a feasibility decision. A copy
of the WDNR final decision is sent to all parties to a contested case
hearing and to all citizens present at the informational hearing. ss.
227.47 and 227.48, Wis. Stats.
After the comment period on the complete submittal, DNR is required
to issue a draft decision and post a copy of the draft decision on the
DNR's internet site for a 30-day public comment period. The draft
decision is required to include a written response to previous
comments. Following the end of the 30-day public comment period on the
draft decision, DNR is required to issue a final decision. The final
decision is reviewable through judicial review under ss. 227.52 and
227.53, Wis. Stats.
Challenges to Permit Decisions
Final permit decisions are reviewable through judicial review under
ss. 227.52 and 227.53, Wis. Stats. A party must wait for some final
agency decision it is aggrieved by, such as the issuance or denial of a
permit, at which point it may raise its challenges in a petition for
judicial review of the agency decision.
EPA has preliminarily determined that the Wisconsin approach to
public participation requirements provides adequate opportunities for
public participation in the permitting process sufficient to meet the
standard for program approval. The provisions described above meet the
three criteria listed at the beginning of this section by
[[Page 57848]]
providing several means by which documents for draft and final permit
determinations are made available for public review and comment, as
well as ensuring that public comments on permit determinations are
considered and significant comments are responded to in the permit
record and that judicial review is available.
3. Guidelines for Compliance Monitoring Authority
An adequate permit program must provide the State with the
authority to gather information about compliance, perform inspections,
and ensure that the information it gathers is suitable for enforcement.
Wisconsin has enacted formal legal provisions for documented certified
inspections by a Professional Engineer (P.E.). Chapter NR 516, Wis.
Adm. Code, requires all construction associated with the establishment
and closure of any landfill to be documented by a professional engineer
(P.E.) registered in the State of Wisconsin. The P.E. must render an
opinion in writing, based on testing results and actual inspections, as
to whether the facility has been constructed or closed in substantial
conformance with the plan of operation or other approved plans.
Approval of the construction documentation must be obtained from WDNR
prior to initiating disposal operations in the newly established area.
Section NR 500.09, Wis. Adm. Code, allows WDNR to require as a
condition of any approval that critical construction steps of a
facility, as specified in the approval, be inspected by WDNR.
Wisconsin requires facilities to certify their operations and to
maintain a public website with operating records. Section NR 506.19,
Wis. Adm. Code, requires the owner or operator to submit an annual
compliance certification and allows WDNR to conduct audits and require
the owner to provide specific records. Under s. NR 506.17, Wis. Adm.
Code, an owner or operator of a CCR landfill must maintain a written
operating record and publicly accessible internet site and provide
documentation to WDNR upon request. Under s. NR 506.20, Wis. Adm. Code,
an annual report must be prepared and submitted by the facility for
WDNR review.
Section NR 507.16, Wis. Adm. Code, requires the owner or operator
of a solid waste facility to submit a sampling plan for all monitoring
devices at the facility. Additional requirements for a sampling plan
for CCR landfills can be found under s. NR 507.15(3)(f) and (g). The
sampling plan must follow WDNR guidelines for groundwater sampling and
comply with the requirements in s. NR 140.16, Wis. Adm. Code, and s. NR
507.17, Wis. Adm. Code.
Sampling results submitted are reviewed by a WDNR hydrogeologist
for accuracy, any inconsistencies, and to determine if any groundwater
standards have been attained or exceeded. Occasionally and whenever
necessary, WDNR employees collect or split samples at a facility and
have those samples analyzed by the State Laboratory of Hygiene (SLOH)
to confirm or to compare with the results submitted by the owner/
operator of a facility.
Wisconsin has legal provisions for inspection by WDNR personnel.
Section 289.91, Wis. Stats., gives any officer, employee or authorized
representative of WDNR authority to enter and inspect any property,
premise or place on or at which a solid waste facility is located or is
being constructed or installed, or to inspect any record relating to
solid waste management of any person who generates, transports, treats,
stores or disposes of solid waste, at any reasonable time for the
purpose of ascertaining the state of compliance with chapter 289, Wis.
Stats., and rules promulgated under chapter 289, Wis. Stats. Wisconsin
law specifies that no person may refuse entry or access to anyone who
requests entry for purposes of inspection, and who represents
appropriate credentials. WDNR, if requested, will furnish the owner or
operator of the premises with a report documenting the facts related to
the facility's compliance status. If required, a WDNR employee can also
obtain a special inspection warrant, under section 66.0119 (Special
Inspection Warrants), Wis. Stats.
The WDNR website provides a link to a form for the public to report
complaints to the WDNR relevant to waste or air issues. Complaints are
routed to a Complaint Coordinator within the Waste and Materials
Management program. Complaints involving a licensed facility are
referred to WDNR staff assigned to the facility.
Accordingly, EPA has preliminarily determined that these compliance
monitoring authorities are adequate, and that this aspect of the
Wisconsin CCR permit program meets the standard for program approval.
The State has authorities and guidelines for inspections, analysis and
monitoring, which allow the State to: (1) Verify the accuracy of
information submitted by owners or operators of the CCR unit; (2)
Verify the adequacy of methods (including sampling) used by owners or
operators in developing that information; (3) Produce evidence
admissible in an enforcement proceeding; and (4) Receive and ensure
proper consideration of information submitted by the public.
4. Guidelines for Enforcement Authority
An adequate State CCR permit program must provide the State with
adequate enforcement authority to administer its State CCR permit
program, including the authority to: (1) Restrain any person from
engaging in activity which may damage human health or the environment,
(2) Sue to enjoin prohibited activity, and (3) Sue to recover civil
penalties for prohibited activity.
Section 289.94(2), Wis. Stats., authorizes WDNR to do one or more
of the following: (a) issue any special order necessary to protect
public health or the environment, (b) take any other action necessary
to protect public health or the environment, or (c) request that the
Wisconsin Department of Justice commence legal proceedings to restrain
or enjoin any person from handling, storage, treatment, transportation
or disposal which presents or may present an imminent and substantial
danger to health or the environment or require any other action as may
be necessary to protect public health and the environment.
Wisconsin has provided WDNR with both statutory and regulatory
authorities to provide enforcement actions for the Wisconsin
environmental statutes, regulations, and permit conditions that are
applicable to the CCR permit program. Section 289.93, Wis. Stats.,
allows WDNR to issue orders to effectuate the purposes of chapter 289,
Wis. Stats., and enforce the same by all available and appropriate
administrative and judicial proceedings. Section NR 500.11, Wis. Adm.
Code, allows the department to take enforcement action as authorized
under sections 289.91 to 289.97, Wis. Stats., or as authorized in
applicable enforcement provisions for landfill and solid waste disposal
program requirements in chapters NR 500 to 538, Wis. Adm. Code.
Wisconsin has statutory authority to sue to enjoin prohibited
activities. Pursuant to section 289.97, Wisc. Stats., when WDNR has
evidence that a violation of chapter 289, Wis. Stats., or a violation
of any promulgated rule, special order, plan approval, or any term or
condition of a license issued under chapter 289, has occurred, WDNR may
serve written notice upon the alleged violator. This written notice
must specify the alleged law or rule violation and contain the findings
of fact on which the charge of violation is based. Except as provided
in section 289.95, WDNR may also include in the
[[Page 57849]]
written notice an order that necessary corrective action be taken
within a reasonable time. This order becomes effective unless, no later
than 30 days after the date the notice and order are served, the person
named in the notice and order requests in writing a hearing before the
department.
Upon such request, WDNR, after due notice, is required to hold a
hearing. Instead of an order, and except as provided in section 289.95,
the department may require that the alleged violator appear before the
department for a hearing at a time and place specified in the notice
and answer the charges complained of; or the department may initiate
action under section 299.95 by referring the matter to the Wisconsin
Department of Justice for enforcement. If after such hearing WDNR still
finds that a violation(s) has occurred, WDNR is required to affirm or
modify its previously issued order, or issue an appropriate order for
the prevention, abatement or control of the problems involved or for
the taking of other corrective action as may be appropriate.
Wisconsin has enacted authorities to restrain any person from
engaging in an activity which may damage human health or the
environment. If WDNR receives evidence that the past or present
handling, storage, treatment, transportation, or disposal of any solid
waste may present an imminent and substantial danger to health or the
environment, section 289.94, Wis. Stats., requires WDNR to provide
immediate notice of the danger to each affected municipality and
promptly post notice of the danger at the site at which the danger
exists, or order a person responsible for the danger to post such a
notice. Per section 289.94(2), Wis. Stats., the department may request
that the Wisconsin Department of Justice commence legal proceedings to
restrain or enjoin any person from handling, storage, treatment,
transportation or disposal which presents or may present an imminent
and substantial danger to health or the environment or require any
other action as may be necessary to protect public health and the
environment.
Wisconsin has authority to sue to recover civil penalties for
prohibited activity. Any person who violates chapter 289, Wis. Stats.,
or any promulgated rule, or any plan approval, license or special order
issued under this chapter shall forfeit not less than $10 nor more than
$25,000 for each violation per section 289.96(3), Wis. Stats. Per
section 289.96(3)(a), for environmental violations, each day of
continued violation is a separate offense.
Based on the foregoing, EPA has preliminarily determined that this
aspect of the Wisconsin CCR permit program meets the standard for
program approval.
5. Intervention in Civil Enforcement Proceedings
Based on RCRA section 7004, an adequate CCR State permit program
must provide an opportunity for citizen intervention in civil
enforcement proceedings. Specifically, the State must either: (1)
Provide for citizen intervention as a matter of right; or (2) Have in
place a process to: (a) Provide notice and opportunity for public
involvement in civil enforcement actions, (b) Investigate and provide
responses to citizen complaints about violations, and (c) Not oppose
citizen intervention when permissive intervention is allowed by
statute, rule, or regulation.
Wisconsin's statutes allow for intervention in a judicial action.
Under section 803.09(1), Wis. Stats., upon timely motion anyone shall
be permitted to intervene in a judicial action when the movant claims
an interest relating to the property or transaction which is the
subject of the action and the movant is so situated that the
disposition of the action may, as a practical matter, impair or impede
the movant's ability to protect that interest, unless the movant's
interest is adequately represented by existing parties. Under section
803.09(2), Wis. Stats., timely intervention in an action is also
permitted when the movant's claim or defense and the main action have a
question of law or fact in common. In exercising its discretion, the
court shall consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties.
Additionally, section 289.92, Wis. Stats., allows any six or more
citizens or any municipality to petition for an administrative review
of an alleged violation of the chapter or any rule promulgated or
special order, plan approval, license or any term or condition of a
license issued under ch. 289, Wis. Stats. More details are provided in
the section III.2.f. ``Civil Intervention'' of the TSD.
Wisconsin has procedures to investigate and provide responses to
citizen complaints about violations. The WDNR website provides a link
to a form for the public to report complaints on waste or air issues.
Wisconsin maintains a hotline that is in operation 24 hours a day, 7
days a week. These complaints are routed to a Complaint Coordinator
within the Waste and Materials Management program of WDNR. Complaints
that involve a licensed facility are referred to the WDNR staff
assigned to the facility. The Complaint Coordinator may follow up
directly on waste-related complaints that are not associated with a
facility. The Waste and Materials Management staff can involve other
programs if the complaint or possible violations involve other program
areas (e.g., wetlands, storm water, air management).
EPA has preliminarily determined that these authorities provide for
an adequate level of citizen involvement in the enforcement process,
and that this aspect of the Wisconsin CCR permit program meets the
standard for program approval.
B. Adequacy of Technical Criteria
EPA conducted an analysis of the Wisconsin CCR Permit Program
Application, including a thorough analysis of Wisconsin statutory
authorities at ch. 289, Wis. Stats. for the CCR program, as well as its
regulations NR 500, 504-508, 512-516 and 520, Wis. Adm. Code.\9\
Additional groundwater monitoring requirements are found in NR 140 and
141.<SUP>10 11</SUP> As noted above, Wisconsin has requested approval
of a partial CCR permit program regulating CCR landfills.
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\9\ Wisconsin Administrative Code Chapters NR 500, 504-508, 512-
516. Published under s. 35.93, Wis. Stats., by the Legislative
Reference Bureau.
\10\ Wisconsin Administrative Code Chapter NR 140 Groundwater
Quality.
\11\ Wisconsin Administrative Code Chapter NR 141 Groundwater
Monitoring Well Requirements.
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1. Wisconsin CCR Units and Resources
WDNR has identified 9 CCR units (6 landfills and 3 surface
impoundments) at 6 facilities in Wisconsin.\12\ The three CCR surface
impoundments will continue to be regulated by EPA. WDNR demonstrated
that it has the personnel to administer a permit program that is at
least as protective as the Federal requirements.\13\ WDNR indicates
that the State program is funded by State general funds appropriated to
WDNR. WDNR indicates that the State Program is also funded from
landfill tipping fees, annual license fees, and plan review fees. In
addition, WDNR applied for EPA State and Tribal Assistance Grants
[[Page 57850]]
(STAG) funding for Fiscal Years 2021 through 2025. In total, WDNR has
received $1,303,485 in funding from EPA to develop its CCR permit
program. If EPA receives future appropriations, if approved, WDNR can
continue to receive funds for implementation of its CCR permit program.
EPA has preliminarily determined that the WDNR staffing and funding are
adequate for WDNR to administer the CCR permit program.
---------------------------------------------------------------------------
\12\ For more information on the specific facilities covered by
the Wisconsin CCR Permit Program, see page 129 (PDF page 130) and
page 4 (PDF page 5) of the Narrative, which is included in the
docket for this action.
\13\ The discussion on State personnel is included on page 124
(PDF page 125) of the Narrative, which is included in the docket for
this action, and is described further in the Technical Support
Document.
---------------------------------------------------------------------------
2. Wisconsin CCR Regulations
EPA has preliminarily determined that the portions of the Wisconsin
CCR permit program applicable to CCR landfills that were submitted for
approval meet the standard for approval under RCRA section
4005(d)(1)(B)(ii), 42 U.S.C. 6945(d)(1)(B)(ii). To make this
preliminary determination, EPA compared the technical requirements in
the Wisconsin CCR regulations at NR 500, 504-508, 512-516 and 520, Wis.
Adm. Code. to the Federal CCR regulations at 40 CFR part 257 to
determine whether the State's requirements are at least as protective
as required in RCRA sections 4005(d)(1)(B)(ii) and (C), 42 U.S.C.
6945(d)(1)(B)(ii) and (C). EPA's review in this case was more involved
than in most other States, by necessity, because Wisconsin did not
adopt by reference the Federal CCR regulations like many other States
and, instead, the State applies its solid waste landfill requirements,
supplemented to address the Federal CCR regulations not included in the
State's landfill regulations, to regulate CCR landfills.
Wisconsin regulates solid waste disposal facilities, which includes
CCR landfills, and the beneficial use of CCR under its solid waste
management regulations, chs NR 500--538, Wis. Adm. Code, and statutory
authority, ch. 289, Wis. Stats. Wisconsin has regulated CCR landfills
for 50 years, the last 30 of which have been under its existing solid
waste rules. These regulations were updated on August 1, 2022, to
incorporate Federal CCR landfill requirements into its existing solid
waste code to ensure Wisconsin's regulations are at least as protective
as the Federal CCR regulations. Affected chapters include NR 500, 504-
508, 512-516 and 520, Wis. Adm. Code. Table 2 of the Technical Support
Document provides a cross-reference between the Federal and State CCR
regulations. A technical discussion on differences between the State
and Federal programs, that has an analysis of program equivalency, is
in section V. Technical Review of the State Submittal, of the TSD.
3. Wisconsin Partial Program
WDNR is seeking approval of its partial CCR permit program pursuant
to RCRA section 4005(d). Wisconsin's CCR regulations reflect 40 CFR
part 257, subpart D, as amended through August 28, 2020, for CCR
landfills; however, the Federal CCR regulations have changed since then
as a result of litigation and the Legacy CCR surface impoundments and
CCR management units final rule (89 FR 38985, May 8, 2024) (the 2024
Legacy Rule) and the CCR Management Unit Deadline Extension Rule (91 FR
5806, February 10, 2026). WDNR has not adopted regulations reflecting
the 2024 and February 2026 changes. Any subsequent amendments to the
Federal CCR regulations, including those effective before a final
decision is made on the State CCR permit program, will not be
automatically included in the State's CCR program and would require
further State adoption and approval by EPA. WDNR did not adopt
regulations for CCR surface impoundments. Therefore, WDNR has not
sought approval of any State regulations that would operate in lieu of
these amendments. EPA is approving only those aspects of Wisconsin's
CCR program that were submitted for approval.
In the 2024 Legacy Rule, EPA amended certain terms and provisions
that apply to all CCR units. It is EPA's understanding that WDNR
interprets the provisions in NR 140, 141, 500, 504-508, 512-516 and
520, Wis. Adm. Code. the same as EPA interprets these in 40 CFR part
257, subpart D. Therefore, EPA is approving the State's version of
these requirements:
1. Throughout 40 CFR part 257, subpart D, the regulations were
amended by removing the phrase ``Website'' and adding in its place the
word ``website'' wherever it appears.
2. 40 CFR 257.52; this amendment clarifies that all CCR units are
subject to the requirement to comply with all other Federal, State,
Tribal, or local laws or other requirements. In addition, all CCR units
continue to be subject to Sec. Sec. 257.3-1, 257.3-2, and 257.3-3.
3. ``Active facility or active electric utilities or independent
power producers''; this amendment to 40 CFR 257.53 clarifies that the
relevant operational date for any active facility or active electric
utilities or independent power producers is on or after October 19,
2015.
4. ``CCR landfill or landfill''; this amendment to 40 CFR 257.53
clarifies that a CCR landfill means an area of land or an excavation
that ``contains'', rather than ``receives'', CCR, and meets the other
criteria of the definition.
5. ``Infiltration''; this additional definition in 40 CFR 257.53 is
consistent with the term's plain meaning and dictionary definitions to
assist in the application of closure performance standards for CCR
units.
6. ``Liquids''; this additional definition in 40 CFR 257.53 is
consistent with the term's plain meaning and dictionary definitions to
assist in the applicability for CCR surface impoundments and the
application of closure performance standards for CCR units.
7. ``State director''; this amendment to 40 CFR 257.53 clarifies
that the State director is the chief administrative officer of the lead
State agency responsible for implementing the State program regulating
disposal in all CCR units.
8. 40 CFR 257.61(a); this amendment updates a reference to 40 CFR
230.41(a), as the previously referenced provision has since been
amended.
9. 40 CFR 257.80(a); this amendment clarifies that all CCR units
are subject to the fugitive dust requirements.
10. 40 CFR 257.90(a); this amendment clarifies that all CCR units
are subject to the groundwater monitoring and corrective action
requirements. In addition, it corrects a typographical error.
11. 40 CFR 257.104(a); this amendment clarifies that all owners or
operators of CCR units that are subject to Sec. 257.102 are subject to
the post-closure care requirements, except for those owners and
operators of a CCR unit that elect to close the CCR unit by removing
CCR.
The State is not seeking approval of certain provisions in the
State regulations and the Federal CCR regulations, or EPA cannot
approve certain provisions. First, EPA is not proposing to approve the
following provisions of the State regulations and, therefore, the
identified provisions will not be included in the Federally approved
program:
1. NR 504.04(2), Wis. Adm. Code, contains several exemptions that,
if used, cannot be guaranteed to be at least as protective as the
Federal CCR regulations. NR 504 contains landfill location,
performance, design and construction criteria. Section NR 504.04
contains the landfill locational criteria and performance standards,
and section NR 504.04(2) contains exemptions from the location
restrictions that EPA is proposing to not approve. However, the
exemption provisions that cannot be approved as part of the Federally
[[Page 57851]]
approved program are intertwined with exemption provisions that apply
to State only requirements that are in addition to the Federal CCR
requirements, and exemptions from State only requirements can be issued
without causing the State CCR permits to be less protective than the
Federal requirements. For this reason, the Agency is identifying the
specific provisions of section NR 504.04 that will not be included in
the approved program. The provisions that EPA is proposing to not
approve are:
a. NR 504.04(2)(a) with respect to the exemptions from NR
504.04(3)(g) as it applies to new CCR landfills. Consistent with the
Federal CCR regulations, NR 504.04(3)(g) prohibits the citing of new
landfills within 200 feet of a fault that had a displacement event in
Holocene time. NR 504.04(3)(g) is different from the Federal CCR
regulations because the State rule applies to both new and existing CCR
landfills and lateral expansions of CCR landfills, whereas 40 CFR
257.62 only applies to new CCR landfills and lateral expansions of CCR
landfills. EPA cannot ensure that an exemption from this requirement
for new CCR landfills and lateral expansions of CCR landfills would be
as protective as the Federal CCR regulations, so EPA is not proposing
to approve this authority for exemptions into Wisconsin's CCR permit
program. However, EPA is proposing to approve the use of this exemption
for existing CCR landfills because the Federal CCR program does not
apply this requirement to existing CCR landfills.
b. NR 504.04(2)(a) with respect to exemptions from 504.04(3)(h) as
it applies to new CCR landfills. Consistent with the Federal CCR
regulations, NR 504.04(3)(h) prohibits the siting of new landfills in a
seismic impact zone. NR 504.04(3)(h) is different from the Federal CCR
regulations because it applies to both new and existing CCR landfills
and lateral expansions of CCR landfills, whereas 40 CFR 257.63 only
applies to new CCR landfills and lateral expansions of CCR landfills.
EPA cannot ensure that an exemption from this requirement for new CCR
landfills or lateral expansions would be as protective as the Federal
CCR regulations, so EPA is not proposing to approve this authority into
Wisconsin's CCR permit program. However, EPA is proposing to approve
the use of this exemption for existing CCR landfills because the
Federal CCR program does not apply this requirement to existing CCR
landfills.
c. NR 504.04(2)(a) with respect to exemptions from 504.04(3)(i) for
new units. Consistent with the Federal CCR regulations, NR 504.04(3)(i)
prohibits the citing of new landfills within unstable areas. EPA cannot
ensure that an exemption from this requirement for new CCR landfills
and lateral expansions of CCR landfills would be as protective as the
Federal CCR regulations, so EPA is not proposing to approve this
authority for exemptions into Wisconsin's CCR permit program.
d. NR 504.04(2)(d) authorizing exemptions from compliance with
section NR 504.04(4)(d), which prohibits a regulated unit from having a
detrimental effect on groundwater quality or otherwise causing a
violation of an applicable standard. EPA cannot ensure that an
exemption from NR 504.04(4)(d) would be as protective as the Federal
CCR regulations, so EPA is not proposing to approve this authority into
Wisconsin's CCR permit program.
e. NR 504.04(2)(a) with respect to exemptions from NR 504.04(4)(b),
which prohibits the taking of an endangered or threatened species; EPA
cannot ensure that an exemption from this requirement for CCR landfills
would be as protective as the Federal CCR regulations and there is no
analogous exemption in the Federal CCR regulations. As such EPA is not
proposing to approve this authority into Wisconsin's CCR permit
program.
2. Section 289.43(7), Wis. Stats, contains a general exemption from
solid waste licensing for the recycling of high-volume industrial waste
and section 538.05 contains an exemption for the beneficial use of CCR.
Both Chapters 289 and 538 contain regulations applicable to high-volume
industrial waste or byproducts and provide alternatives to the default
regulatory scheme. Under both Chapters 289 and 538, CCR are considered
a high-volume industrial waste or byproduct. The exemption in section
289.43(7) is insufficiently limited and does not reference section
538.05. Thus, if the exemption were granted, EPA could not be sure that
the management of CCR for recycling would be as protective as the
Federal CCR requirements or beneficial use criteria. As such, EPA is
not proposing the approval of the exemption in section 289.43(7) into
the federally approved CCR program. In contrast, section NR 538.05 also
contains an exemption from solid waste licensing when CCR is
beneficially used consistent with Chapter 538 requirements, which
describe various obligations for beneficial use. EPA finds that the
provisions of Chapter 538 will ensure that the beneficial use of CCR
will be as protective as the Federal CCR regulations and therefore
proposes to approve section 538.05 as applied to CCR beneficial use.
This beneficial use exemption will apply to activities that fully meet
the applicable requirements of Chapter 538 and the exemption will not
otherwise exclude the licensing requirements for any facility involved
with the disposal of CCR.
3. NR 500.03(26p)(a) and (b): The State definition of ``CCR pile''
is not being approved as EPA determined it is not at least as
protective as the Federal definition at 40 CFR 257.53, because it
allows onsite accumulation of CCR for beneficial use without including
limitation that such accumulation must be for offsite use. Therefore,
the Federal definition of ``CCR pile'' will remain in effect.
Second, WDNR is not seeking approval for the Federal CCR
regulations that apply to CCR surface impoundments and, accordingly,
the scope, definitions, and applicable requirements in 40 CFR part 257
will remain directly applicable to CCR surface impoundments within the
State of Wisconsin. While various provisions of the CCR regulations
apply to the different types of CCR units (i.e., CCR surface
impoundments, CCR landfills, legacy CCR surface impoundments, and
CCRMU), the following list only describes the applicability of these
sections to CCR surface impoundments over which the Federal CCR
regulations will continue to apply. EPA will continue to implement CCR
surface impoundments provisions under the Federal CCR program and
retain enforcement authority over these provisions (EPA also maintains
enforcement authority over units operating under a State program). The
following list identifies key provisions applicable to CCR surface
impoundments that EPA will implement under the Federal CCR program.
This list is non-exhaustive.
1. 40 CFR 257.50, scope and purpose, specifically 40 CFR 257.50(c);
2. 40 CFR 257.52, applicability of other regulations;
3. Definitions in 40 CFR 257.53; many definitions apply to all CCR
units. However, the following definitions are specific to CCR surface
impoundments that are not applicable to CCR landfills:
a. Acre foot;
b. Area-capacity curves;
c. Dike;
d. Downstream toe;
e. Eligible unlined CCR surface impoundment;
f. Existing CCR surface impoundment;
g. Factor of safety (Safety factor);
h. Flood hydrograph;
i. Freeboard;
j. Hazard potential classification;
[[Page 57852]]
k. Incised CCR surface impoundment;
l. Inflow design flood;
m. Liquefaction factor of safety;
n. New CCR surface impoundment;
o. Overfill
p. Probable maximum flood;
q. Retrofit;
r. Seismic factor of safety;
s. Slope protection;
t. Static factor of safety;
u. Technically feasible; and
v. Technically infeasible;
4. 40 CFR 257.60, location restrictions for placement above the
uppermost aquifer for CCR surface impoundments;
5. 40 CFR 257.61, location restrictions for wetlands for CCR
surface impoundments;
6. 40 CFR 257.62, location restrictions for fault areas for CCR
surface impoundments;
7. 40 CFR 257.63, location restrictions for seismic impact zones
for CCR surface impoundments;
8. 40 CFR 257.64; location restrictions for unstable areas for CCR
surface impoundments;
9. 40 CFR 257.71 Liner design criteria for existing CCR surface
impoundments;
10. 40 CFR 257.72 Design criteria for new CCR surface impoundments
and any lateral expansion of a CCR surface impoundment;
11. 40 CFR 257.73 Structural integrity criteria for existing CCR
surface impoundments;
12. 40 CFR 257.74 Structural integrity criteria for new CCR surface
impoundments and any lateral expansion of a CCR surface impoundment;
13. 40 CFR 257.80 Air criteria;
14. 40 CFR 257.82 Hydrologic and hydraulic capacity requirements
for CCR surface impoundments;
15. 40 CFR 257.83 Inspection requirements for CCR surface
impoundments;
16. 40 CFR 257.90, groundwater monitoring applicability;
17. 40 CFR 257.91, groundwater monitoring systems;
18. 40 CFR 257.93, groundwater sampling and analysis requirements;
19. 40 CFR 257.94, detection monitoring program;
20. 40 CFR 257.95, assessment monitoring program;
21. 40 CFR 257.96, assessment of corrective measures;
22. 40 CFR 257.97, selection of remedy;
23. 40 CFR 257.98, implementation of corrective action program;
24. 40 CFR 257.101, closure or retrofit of CCR units;
25. 40 CFR 257.102, criteria for conducting the closure or retrofit
of CCR units;
26. 40 CFR 257.103, alternative closure requirements;
27. 40 CFR 257.104, post-closure care requirements;
28. 40 CFR 257.105, recordkeeping requirements;
29. 40 CFR 257.106, notification requirements; and
30. 40 CFR 257.107, CCR website requirements.
The following list identifies amendments to the requirements in 40
CFR part 257, subpart D that were not included in Wisconsin's
application. These Federal provisions will continue to apply directly
to, and remain Federally enforceable for, each CCR unit in Wisconsin.
Meaning, the requirements in NR 140, 141, 500, 504-508, 512-516 and
520, Wis. Adm. Code., as enumerated below, are not being proposed for
approval:
1. 40 CFR 257.73(a)(4), 257.73(d)(1)(iv), 257.74(a)(4), and
257.74(d)(1)(iv) for vegetative cover for slope stability;
2. 40 CFR 257.90(g) for suspension of groundwater monitoring;
3. 40 CFR 257.95(h)(2) for groundwater protection standards for
constituents in appendix IV having no Maximum Contaminant Levels;
4. EPA amended certain provisions of the Federal CCR regulations in
the 2024 Legacy Rule that apply to all CCR units and are more
prescriptive than the requirements in the 2015 CCR Rule. WDNR did not
adopt these amendments and did not seek approval of these provisions.
Thus, the following Federal provisions will be applicable to CCR units
in Wisconsin:
a. ``Operator''; this amendment to 40 CFR 257.53 specifies the
definition of operator to include certain other person(s) including
those responsible for disposal or otherwise actively engaged in the
solid waste management of CCR and person(s) responsible for directing
or overseeing groundwater monitoring, closure or post-closure
activities at a CCR unit.
b. ``Owner''; this amendment to 40 CFR 257.53 broadened the
definition of owner to include person(s) who own a facility, whether in
full or in part.
c. 40 CFR 257.80(b)(6); this amendment specifies that the owner or
operator must amend the written fugitive dust control plan no later
than 30 days whenever there are certain changes in condition.
d. 40 CFR 257.102(c)(2); this amendment specifies the criteria for
complete removal and decontamination activities during the active life
and post-closure care period of a CCR unit.
e. 40 CFR 257.102(d)(2); this amendment specifies that the closure
performance standards for drainage and stabilization of a unit when
leaving CCR in place apply to all CCR units, including CCR management
units (CCRMU) and CCR landfills, where free liquids remain in the unit.
f. 40 CFR 257.102(f)(2)(ii)(C) and(D); these amendments specify
that CCR landfills that intersect with groundwater are eligible for the
closure time extensions available to CCR surface impoundments, subject
to certain requirements.
g. 40 CFR 257.104(a)(2), (c)(1) and (3); these amendments specify
that an owner or operator closing a CCR unit pursuant to the closure by
removal and decontamination standards during the active life and post-
closure care period, 40 CFR 257.102(c)(2), must complete groundwater
corrective action.
h. 40 CFR 257.104(g); this amendment specifies that a deed
notation, required pursuant to 40 CFR 257.102(i), may be removed after
the owner or operator demonstrates that groundwater monitoring
concentrations no longer exceed any protection standard (i.e., the unit
must be in detection monitoring) and certain notifications of
completion of post-closure care are completed.
i. 40 CFR 257.105(a); this amendment specifies that each file in
the operating record must indicate the date the file was placed in the
record.
j. 40 CFR 257.105(e); (f)(1) through (14); (f)(19); (g); (h)(1)
through (4); (h)(10) through (11); (h)(13) through (14); (i)(4) through
(20); these amendments extend the retention times for certain documents
maintained in the operating record.
k. 40 CFR 257.107(b); this amendment specifies that owners and
operators using one website to meet the requirements of multiple
environmental rules must delineate the postings for each regulatory
program under a separate heading on the combined website.
l. 40 CFR 257.107(e); (f)(1) through (4); (f)(6) through (13);
(f)(18); (g); (h)(1) through (3); (h)(8); (h)(10) through (11); (i)(4)
through (20); these amendments extend the retention times for certain
documents maintained on the facility's CCR website.
5. In the 2024 Legacy Rule, EPA added requirements for legacy CCR
surface impoundments. WDNR did not adopt these amendments. Thus, any
legacy CCR surface impoundments in Wisconsin will remain subject to the
following Federal CCR regulations:
a. 40 CFR 257.50(e); this amended provision specifies that 40 CFR
part 257, subpart D applies to electric utilities or independent power
producers that ceased producing electricity prior to
[[Page 57853]]
October 19, 2015 and have a legacy CCR surface impoundment onsite.
b. ``Inactive facility or inactive electric utility or independent
power producer''; this added definition to 40 CFR 257.53 specifies the
facility where legacy CCR surface impoundments are located.
c. ``Legacy CCR surface impoundment''; this added definition to 40
CFR 257.53 specifies a new type of CCR unit that meets certain
criteria.
d. 40 CFR 257.100(a)(2); EPA amended 40 CFR 257.100(a) to add
paragraph (2), which specifies that legacy CCR surface impoundments are
subject to all of the requirements applicable to existing CCR surface
impoundments, except for the requirements in 40 CFR 257.60 through
257.64 and 257.71.
e. 40 CFR 257.100(f) through (j); these additional provisions
include reporting and technical requirements for legacy CCR surface
impoundments.
f. 40 CFR 257.101(e); this added provision specifies the deadlines
when owners or operators of legacy CCR surface impoundments must
initiate closure.
g. 40 CFR 257.101(g); this added provision specifies requirements
for deferral to permitting for closures conducted under substantially
equivalent regulatory authority.
h. 40 CFR 257.105(k), 257.106(k), and 257.107(k); these added
provisions specify recordkeeping, notification, and CCR website posting
requirements for legacy CCR surface impoundments.
6. In the 2024 Legacy Rule, EPA also added requirements for CCR
management units. WDNR did not adopt these provisions. Thus, any CCR
management units in Wisconsin will remain subject to the following
Federal CCR regulations:
a. 40 CFR 257.50(d); this amended provision specifies the scope of
CCRMU requirements.
b. ``CCR management unit''; this additional definition in 40 CFR
257.53 is for a new type of CCR unit.
c. ``Closed prior to October 19, 2015''; this additional definition
in 40 CFR 257.53 specifies the applicability of CCR landfills or
surface impoundments that completed closure of the unit in accordance
with State law prior to October 19, 2015.
d. ``Critical infrastructure''; this additional definition in 40
CFR 257.53 specifies infrastructure, large buildings, or other
structures vital to the success or continuation of current site
operations or activities for the public welfare. Under the Federal CCR
regulations, CCRMU located under critical infrastructure have the
option to defer certain requirements to permitting.
e. ``Inactive CCR landfill''; this additional definition in 40 CFR
257.53 is for a new type of CCR unit related to CCRMU.
f. ``Regulated CCR unit''; this additional definition in 40 CFR
257.53 is a conforming change, which means any new CCR landfill,
existing CCR landfill, new CCR surface impoundment, existing CCR
surface impoundment, inactive CCR surface impoundment, or legacy CCR
surface impoundment. This term specifies that CCRMU are not considered
regulated CCR units.
g. 40 CFR 257.75; this additional section includes requirements for
identifying CCRMU.
h. 40 CFR 257.90(b)(3); this additional provision specifies a
deadline for the owners and operators of CCRMU to comply with certain
groundwater monitoring requirements.
i. 40 CFR 257.90(e); EPA amended one sentence in this provision to
add an annual groundwater monitoring and corrective action report
deadline for CCRMU. WDNR has not adopted this amendment, see ss. NR
507.15(3)(m), Wis. Adm. Code. However, WDNR adopted a prior (August 28,
2020), version of 40 CFR 257.90(e). EPA is approving the August 28,
2020, version of the provision, but the added deadline for CCRMU
contained in the 2024 Legacy Rule will remain directly applicable to
CCRMU in Wisconsin.
j. 40 CFR 257.95(b); this amended provision adds a deadline for
CCRMU to sample and analyze the groundwater for all constituents in 40
CFR part 257, appendix IV.
k. 40 CFR 257.101(f); this additional provision specifies the
deadlines when CCRMU must initiate closure.
l. 40 CFR 257.101(g) and (h); these include additional requirements
for deferral to permitting for closures conducted under substantially
equivalent regulatory authority and under critical infrastructure.
m. 40 CFR 257.102(b)(2)(iii) and (v); these amended provisions
renumber paragraph (b)(2)(iii) to (iv) and add new paragraphs
(b)(2)(iii) and (v). The added provisions are only applicable to CCRMU.
n. 40 CFR 257.102(f)(1)(iii); this additional provision specifies
when CCR management units must complete closure activities.
o. 40 CFR 257.102(f)(2)(ii)(E) and (F); these additional provisions
specify when CCR management units may extend the complete closure
activities.
p. 40 CFR 257.104(d)(2)(iii); these amended provisions renumber
paragraph (d)(2)(iii) to (iv) and add a new paragraph (d)(2)(iii). This
added provision is only applicable to CCRMU.
q. 40 CFR 257.105(f)(25) and (26), 40 CFR 257.106(f)(24) and (25),
40 CFR 257.107(f)(24) and (25); these include additional recordkeeping,
notification, and CCR website posting provisions for CCRMU.
EPA has preliminarily determined that the Wisconsin CCR regulations
contain all of the technical elements of the Federal CCR regulations,
including requirements for location restrictions, design and operating
criteria, groundwater monitoring and corrective action, closure
requirements and post-closure care, recordkeeping, notification, and
CCR website posting requirements. The Wisconsin partial CCR permit
program also contains State-specific language, references, definitions,
and requirements that differ from the Federal CCR regulations, but
which EPA has preliminarily determined to be ``at least as protective
as'' the Federal criteria. These State-specific requirements are also
discussed further in sections III.1. and V. of the Technical Support
Document.
The effect of approving a partial State CCR permit program is that,
except for the provisions for which EPA has not granted approval, the
Wisconsin partial CCR permit program will operate in lieu of the
Federal CCR regulations. For the State provisions that are not approved
upon finalization, the corresponding Federal requirements will continue
to apply directly to facilities, and therefore facilities must comply
with both the Federal requirements and the State requirements. RCRA
section 4005(d)(3).
V. Wisconsin CCR Permits
Pursuant to Wisconsin's CCR regulations, the owner or operator of
existing CCR landfills and impoundments will comply with 40 CFR part
257, subpart D. ch. 289 Wis. Stats. To demonstrate compliance with
Wisconsin's revised regulations for CCR landfills, effective August 1,
2022, the six CCR landfills were required to submit a plan of operation
modification for initial permitting by February 1, 2023. Subsequently,
WDNR issued permits to the owners and/or operators of all CCR six CCR
landfills in the State. All six CCR landfills met this date for the
initial plan of operation modification submittal. As of February 2026,
three CCR landfills had received approval of their plan of operation
modification for initial permitting, two CCR landfill submittals were
posted for public comment, and one CCR landfill was gathering
additional information for a complete submittal.
[[Page 57854]]
A. Wisconsin's Permits Issued Under the State CCR Regulations Are Not
Part of the Permit Program Evidence Under Review
On February 24, 2026, WDNR submitted its application and requested
approval of Wisconsin's partial CCR permit program for CCR landfills.
The application states that WDNR does not seek to have its existing
permits approved as part of its partial program. On page 115 of the
Narrative Description, WDNR states that: ``Wisconsin is not seeking
approval from EPA at this time of the already issued plans of
operation. If Wisconsin receives approval of its CCR permit program,
the DNR will review the issued plans of operation within one year of
the approval to ensure that all elements of state regulations and EPA's
approval are documented in the plans of operation. If any modifications
are needed, public notice of the modifications will be conducted prior
to final approval.''
WDNR has committed to reviewing and modifying these permits to
ensure compliance with the Federally approved program after EPA issues
its final determination of adequacy. Therefore, EPA has treated these
existing permits as outside the program evidence submitted for EPA
review and thus not relevant to the decision on the permit program. See
42 U.S.C. 6945(d)(1)(A), and (d)(1)(B). EPA is basing its proposed
decision on information in the program application package, as outlined
in EPA's 2017 Guidance Document,\14\ submitted by WDNR on February 24,
2026.
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\14\ See Chapter 4-Permit Program Application Checklist.
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B. Status of Wisconsin's Previously-Issued Permits Issued Under the
State CCR Regulations
Because Wisconsin has chosen to exclude its previously-issued
permits from the scope of its CCR permit program application, those
permits also would not become effective under RCRA as a consequence of
an EPA final approval action. Thus, permits issued prior to EPA's
approval of Wisconsin's partial program will not provide facilities
with the Federal permit shield in RCRA sections 4005(d)(3) and (d)(6).
42 U.S.C. 6945(d)(3) and (d)(6). Instead, these permits only become a
part of Wisconsin's approved program and obtain the Federal permit
shield after a modification is completed ``in accordance with'' the
approved program, including providing a public notice and comment
period on the entirety of each CCR permit. 42 U.S.C. 6945(d)(6)(A).
Similarly, RCRA section 4005(d)(3)(A) makes clear that, in the absence
of a permit under an ``approved'' State program, facilities must still
comply with the Federal CCR regulations. EPA intends to review the
State's permits in conjunction with the program review required by RCRA
section 4005(d)(1)(D)(i) and 4005(d)(1)(D)(ii). 42 U.S.C.
6945(d)(1)(D)(i), (ii).
VI. Proposed Action
EPA has preliminarily determined that the Wisconsin partial CCR
permit program for CCR landfills meets the statutory standard for
approval. Therefore, in accordance with 42 U.S.C. 6945(d), EPA is
proposing to approve the Wisconsin partial CCR permit program.
Lee Zeldin,
Administrator.
[FR Doc. 2026-18552 Filed 9-10-26; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on September 11, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.