(3) Tentative decision.
The secretary shall issue a tentative decision on the variance within 120 days after receipt of a completed application. The department shall circulate the tentative decision to the parties in s. 283.53 (2) (c)
. If the tentative decision is to grant a variance based upon one or more of the conditions specified in sub. (4) (a) 1. a.
, the department shall include in the notice under this subsection a statement on the effect of the variance, if granted, on the designated use of the water body during the term of the underlying permit. The department shall provide a 30-day period for written comments on the tentative decision.
Within 90 days after expiration of the comment period under sub. (3)
, the secretary shall approve all or part of a requested variance, or modify and approve a requested variance if the permittee demonstrates, by the greater weight of the credible evidence, that attaining the water quality standard is not feasible because:
Naturally occurring pollutant concentrations prevent the attainment of the standard;
Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the standard, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating water conservation requirements;
Human caused conditions or sources of pollution prevent the attainment of the standard and cannot be remedied or would cause more environmental damage to correct than to leave in place;
Dams, diversions or other types of hydrologic modifications preclude the attainment of the standard, and it is not feasible to restore the water body to its original condition or to operate such modification in a way that would result in the attainment of the standard;
Physical conditions related to the natural features of the water body, such as the lack of proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic life protection uses; or
The standard, as applied to the permittee, will cause substantial and widespread adverse social and economic impacts in the area where the permittee is located.
Within 90 days after the expiration of the comment period under sub. (3)
, the secretary shall deny a requested variance if the permittee fails to make the demonstration required under subd. 1.
The failure of the secretary to issue a final decision under subd. 1.
within the time required under this paragraph shall constitute a denial of the application for the variance.
If the secretary issues a decision under par. (a) 1.
, the secretary shall, as part of the decision, establish all permit conditions needed to implement the variance.
Within 30 days after the date of the decision under par. (a) 1.
, the department shall issue the notice required under s. 283.53 (2) (b)
of its intent to modify the permit to incorporate the decision to approve all or part of a variance or to modify and approve the variance. Section 283.53 (2) (d)
does not apply to the proposed permit modification.
A variance applies only to the permittee requesting the variance and to the pollutant specified in the variance. A variance does not affect or require the department to modify the corresponding water quality standard adopted under s. 281.15
A variance applies for the term established by the secretary, but not to exceed 3 years. The term of the initial variance and any renewals thereof may not exceed the time that the secretary determines is necessary to achieve the water quality based effluent limitation. Initial and interim effluent limitations established under par. (c) 1.
apply, as appropriate, for the term of the underlying permit as issued, reissued or modified to implement the decision under sub. (4) (b)
or as extended by operation of s. 227.51 (2)
. Notwithstanding sub. (4) (d)
, s. 227.51 (2)
shall apply for the purposes of continuing the provisions of a permit pending the issuance or reissuance of a permit. Upon the issuance or reissuance of the new permit, sub. (2) (a) 2.
and s. 283.63 (1) (am)
The permit modified pursuant to sub. (4) (c)
to implement a variance shall require:
Compliance with an initial effluent limitation which at the time the variance is approved represents the level currently achievable by the permittee. At the time a variance is approved a compliance schedule and an interim effluent limitation that is achievable by the permittee during the term of the variance may be specified. The initial and the interim effluent limitations may not be less stringent than a categorical effluent limitation that applies to the permittee under s. 283.13 (2)
or a toxic effluent standard that applies to the permittee under s. 283.21
Investigation of treatment technologies, process changes, wastewater reuse or other techniques that may result in compliance by the permittee with the water quality standard adopted under s. 281.15
, and submission of reports on the investigations at such times as required by the department. The secretary shall modify or waive the requirements specified in this subdivision if the secretary determines, based upon comments received on the tentative decision under sub. (3)
, that the requirements of this subdivision are:
Reasonably beyond the technical or financial capability of the permittee; or
The department may impose conditions in the permit as necessary to administer the variance including, but not limited to, additional monitoring requirements.
A variance may be renewed using the procedures in and subject to subs. (2)
. A variance may not be renewed if the permittee did not submit the reports required under sub. (5) (c) 2.
or substantially comply with all other conditions of the variance.
(7) Delegation of secretary's authority.
The secretary may designate an officer or employee of the department to make any decision that the secretary is required to make under this section.
(8) No right to a hearing.
Notwithstanding s. 227.42
, there is no right to a hearing under this section.
(9) Relation to permit review.
If the secretary approves part or all of a variance or modifies and approves the variance under this section and the department issues a modified water quality based effluent limitation under s. 283.63
for the same substance, the permittee shall comply with the least stringent of the 2 effluent limitations.
283.15(10)(a)(a) Subsections (2)
do not apply if the water quality based effluent limitation results from the decision of the department under s. 283.63
to make the water quality based effluent limitation less stringent than the effluent limitation in the permit as issued, reissued or modified.
(b) Subsections (2)
apply if the water quality based effluent limitation results from the decision of the department under s. 283.63
to make the water quality based effluent limitation more stringent than the effluent limitation in the permit as issued, reissued or modified.
This section does not apply to the issuance, reissuance or modification of a permit to incorporate a toxic effluent standard or prohibition promulgated by rule under s. 283.11 (4)
History: 1973 c. 74
; 1979 c. 221
s. 2202 (39)
; 1985 a. 29
; 1987 a. 27
; 1995 a. 227
; Stats. 1995 s. 283.15.
See also chs. NR 209
and s. NR 200.01
, Wis. adm. code.
Thermal effluent limitations. 283.17(1)
Any thermal effluent limitation proposed by the department may be modified by it in accordance with s. 283.63
, if the owner or operator of the point source which is the subject of the proposed limitation demonstrates to the satisfaction of the department that the proposed limitation is more stringent than necessary to assure the protection and propagation of a balanced indigenous population of shellfish, fish and wildlife in and on the body of water into which the discharge is made.
Any point source of a discharge having a thermal component, the modification of which is commenced after October 18, 1972, and which, as modified, meets the most stringent effluent limitation established under s. 283.13
or sub. (1)
and this subsection, where the limitation assures protection and propagation of a balanced indigenous population of shellfish, fish and wildlife in and on the water into which the discharge is made, shall not be subject to any more stringent effluent limitation with respect to the thermal component during either the 10-year period beginning on the date of completion of the modification or the period of depreciation or amortization of the facility for the purpose of section 167
of the internal revenue code, whichever ends first.
History: 1987 a. 27
; Stats. 1987 s. 147.055; 1991 a. 39
; 1995 a. 227
; Stats. 1995 s. 283.17.
Standards of performance. 283.19(1)
The department shall, by rule, promulgate standards of performance, for each class or category of sources referred to under s. 283.13 (1)
that is required to be covered by permits issued under s. 283.31
, which shall reflect the greatest degree of effluent reduction achievable through the application of the best available demonstrated control technology, processes, operating methods, or other alternatives. Where practicable, a standard of performance permitting no discharge of pollutants shall be adopted.
Standards of performance adopted under this section shall apply to all new sources within each class or category of sources for which a standard of performance has been adopted under this section.
The term "new source" means any source, the construction of which commenced after the adoption of the standard of performance applicable to the category of sources of which it is a member.
The department shall revise such standards to reflect changes in control technology, processes, operating methods or other alternatives. When establishing or revising standards of performance under this section, the department shall consider the cost of achieving such effluent reductions and the nonwater quality environmental impact and energy requirements of such reductions.
The department may distinguish among classes, types and sizes within categories of sources for the purpose of establishing or revising standards of performance under this section.
After the effective date of any standard of performance promulgated by the department under this section, no owner or operator of any new source may operate such source in violation of any standard of performance applicable to such a source.
History: 1973 c. 74
; 1993 a. 16
.; 1995 a. 227
; Stats. 1995 s. 283.19
Cross Reference: See also NR 200-, Wis. adm. code.
Toxic and pretreatment effluent standards. 283.21(1)(1)
Toxic effluent limitations and standards. 283.21(1)(a)(a)
The department shall promulgate by rule a list of toxic pollutants or combinations of pollutants subject to this chapter which consists of those toxic pollutants referred to in table 1 of committee print number 95-30 of the committee on public works and transportation of the U.S. house of representatives. After promulgation of this list, the department may revise by rule the list periodically and may add to or remove from the list any pollutant. In revising this list the department shall consider the toxicity of the pollutant, its persistence, degradability, the usual or potential presence in any waters of any organisms affected by the discharge of the toxic pollutant or combination of pollutants, the importance of the affected organism and the nature and extent of the effect of the toxic pollutant on these organisms. A determination by the department under this subsection is subject to declaratory judgment proceedings under s. 227.40
The department may promulgate by rule an effluent standard, which may include a prohibition, establishing requirements for a toxic pollutant which, if an effluent limitation is applicable to a class or category of point sources, is applicable to that category or class of point sources only if this effluent standard imposes more stringent requirements than are imposed under s. 283.13 (2) (b)
. An effluent standard promulgated under this section shall take into account the toxicity of the pollutant, its persistence, degradability, the usual or potential presence of affected organisms in any waters, the importance of affected organisms, the nature and extent of the effect of the toxic pollutant on these organisms and the extent to which effective control is being or may be achieved under other regulatory authority.
The department shall promulgate by rule an effluent standard which may include a prohibition in accordance with par. (a)
for each toxic pollutant referred to in table 1 of committee print number 95-30 of the committee on public works and transportation of the U.S. house of representatives as soon as practicable but no later than one year after the U.S. environmental protection agency promulgates an effluent standard for the pollutant. The department shall establish effluent standards for any other toxic pollutant listed under par. (a)
as soon as practicable after it is listed. Each effluent standard promulgated under this paragraph shall be reviewed and, if appropriate, revised every 3 years.
Ample margin of safety.
An effluent standard promulgated under this subsection shall be established at that level which the department determines provides an ample margin of safety.
Applicability to classes or categories of sources.
If the department proposes or promulgates an effluent standard under this subsection, it shall designate the class or category of point sources to which the effluent standard applies. The department may include the disposal of dredged material in a class or category of point sources.
An effluent standard promulgated under this subsection takes effect on the date specified in the order promulgating the standard, but not more than one year after the date of the order. If the department determines that compliance within one year after the date of the order is technologically infeasible for a class or category of sources, the department may establish the effective date for the effluent standard for that class or category of sources at the earliest date upon which compliance can be feasibly attained by those sources, but in no case more than 3 years after the date of the order.
Procedure for promulgation in absence of federal standards.
In promulgating rules establishing a toxic effluent standard or prohibition for which the U.S. environmental protection agency has not promulgated a toxic effluent limitation, standard or prohibition, the department shall follow the additional procedures specified in s. 283.11 (4) (d)
The department shall by rule promulgate pretreatment standards to regulate the introduction into publicly owned treatment works of pollutants which are not susceptible to treatment by such treatment works or which would interfere with the operation of such treatment works.
Pretreatment standards promulgated under this section shall specify a time for compliance, not to exceed 3 years after the date of promulgation, and shall be established to prevent the discharge through any publicly owned treatment work of any pollutant which interferes with, passes through, or otherwise is incompatible with the treatment works. If any toxic pollutant under sub. (1)
is introduced by a source into a publicly owned treatment works, if the treatment by the works removes all or any part of that toxic pollutant, if the discharge from the works does not violate the effluent limitation or standard which would be applicable to that toxic pollutant if it were discharged by the source other than through a publicly owned treatment works and if the treatment of that toxic pollutant does not prevent sludge use or disposal by the works in accordance with section 1345 of the federal water pollution control act, as amended, 33 USC 1251
, then the pretreatment requirements for the sources actually discharging the toxic pollutant into the publicly owned treatment works may be revised by the owner or operator of the works to reflect the removal of that toxic pollutant by the works.
The department shall by rule promulgate the classes or categories of sources to which the pretreatment standards adopted under this section shall apply.
The department shall revise the pretreatment standards adopted under this section to reflect changes in control technology, processes, operating methods or other alternatives.
History: 1973 c. 74
; 1979 c. 221
; 1985 a. 29
; 1985 a. 182
; 1995 a. 227
; Stats. 1995 s. 283.21.
Cross Reference: See also NR 200-, Wis. adm. code.
Water pollutant discharge elimination system; permits, terms and conditions. 283.31(1)
The discharge of any pollutant into any waters of the state or the disposal of sludge from a treatment work by any person is unlawful unless such discharge or disposal is done under a permit issued by the department under this section or s. 283.33
. The department may by rule exempt certain classes or categories of vessels from this section. Except as provided in s. 283.33
, the department may require only one permit for a publicly owned treatment or collection facility or system, regardless of the number of point sources from such facility or system.
No permit shall be issued by the department for the discharge into the waters of the state of any of the following:
Any radiological, chemical or biological warfare agent or high-level radioactive waste.
Any discharge which the secretary of the army acting through the chief of the army corps of engineers has objected to in writing on the ground that anchorage and navigation would be substantially impaired.
Any discharge to which the U.S. environmental protection agency has objected to in writing pursuant to s. 283.41
Any discharge from a point source which is in conflict with any existing area-wide waste treatment management plan approved by the department. No area-wide waste treatment management plan may require the abandonment of existing waste treatment facilities which meet the requirements of this chapter unless the abandonment of such facilities clearly represents the most efficient and cost-effective method of providing waste treatment for the entire planning area.
The department may issue a permit under this section for the discharge of any pollutant, or combination of pollutants, other than those prohibited under sub. (2)
, upon condition that such discharges will meet all the following, whenever applicable:
Effluent standards, effluents prohibitions and pretreatment standards.
Any more stringent limitations, including those:
Necessary to meet federal or state water quality standards, or schedules of compliance established by the department; or
Necessary to comply with any applicable federal law or regulation; or
Necessary to avoid exceeding total maximum daily loads established pursuant to a continuing planning process developed under s. 283.83
Any more stringent legally applicable requirements necessary to comply with an approved areawide waste treatment management plan.
Groundwater protection standards established under ch. 160
The department shall prescribe conditions for permits issued under this section to assure compliance with the requirements of sub. (3)
. Such additional conditions shall include at least the following:
That the discharge of any pollutant more frequently than or at a level in excess of that identified and authorized by the permit shall constitute a violation of the terms and conditions of the permit;
That facility expansions, production increases, or process modifications which result in new or increased discharges of pollutants at frequencies or levels in excess of the maximum discharges described in the permit shall be reported to the department under s. 283.59 (1)
That the permittee shall permit authorized representatives of the department upon the presentation of their credentials to enter upon any premises in which an effluent source is located or in which any records are required to be kept for the purpose of administering s. 283.55
That the permittee shall at all times maintain in good working order and operate as efficiently as possible any facilities or systems of control installed by the permittee to achieve compliance with the terms and conditions of the permit;
That if a toxic effluent standard or prohibition, including any schedule of compliance specified in such effluent standard or prohibition, is established under s. 283.21 (1)
for a toxic pollutant present in the permittee's discharge and, if such standard or prohibition is more stringent than any limitation upon such pollutant in the permit, the department shall revise or modify the permit in accordance with the toxic effluent standard or prohibition;