NR 203.135 Modification, revocation and reissuance, or termination of permits. NR 203.135(1)
The department may modify, revoke and reissue, or terminate a permit upon request of any interested person, including the permittee, or upon the department's initiative. Permits may only be modified, revoked and reissued, or terminated for one of the causes listed in s. NR 203.136
. If cause exists, the department may request an updated application if necessary.
Whenever, on the basis of any information available to it, the department finds that there is cause under s. NR 203.136
for modifying, revoking and reissuing, or terminating a permit, in whole or in part, the department shall notify the permittee by certified mail or personal service of its intended permit action. However, if the department proposes to modify a permit to authorize a substantial change to a nutrient management plan of a concentrated animal feeding operation, the department may notify the permittee by email. When notifying the permittee of a proposal to modify, revoke and reissue, or terminate the department shall specify the information upon which the department relies, and if the department intends to modify the permit, shall explain the modifications which the department intends to make in the permit.
Permits may be modified, revoked and reissued, or terminated at the request of any interested person, including the permittee. All requests for a modification, revocation and reissuance, or termination by a permittee or interested person shall be in writing and shall contain facts or reasons supporting the request.
If the department decides the request is not justified, the department shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, revocation and reissuance, or termination are not subject to public notice, comment, informational hearings or adjudicatory hearings under s. 283.63
If the department tentatively decides to modify or revoke and reissue a permit the department shall prepare a draft permit under s. NR 200.11
incorporating the proposed changes. For a permit modification, the department may request additional information and may require the submission of an updated application. For revoked and reissued permits, the department shall require the submission of a new application. The department shall follow the public notice, comment and hearing procedures in ch. NR 203
with respect to its intention to modify, or revoke and reissue a permit, except as otherwise provided in this section.
In a permit modification only those conditions to be modified shall be reopened when a new draft permit is prepared. All other aspects of the existing permit shall remain in effect for the duration of the existing permit. When a permit is revoked and reissued, the entire permit is reopened just as if the permit had expired and was being reissued for a new term. During any revocation and reissuance proceeding the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.
Minor modifications that qualify for a procedural exemption under s. NR 203.015
are not subject to the requirements of this section, and the permit may be modified without a draft permit or public review.
Except as provided in paragraph (b), if the department tentatively decides to terminate a permit, the department shall issue a notice of intent to terminate. A notice of intent to terminate is subject to the same procedures as a draft permit prepared under s. NR 200.11
If the department tentatively decides to terminate a permit due to permanent elimination of a discharge that is due to a facility closure, connection to a publicly owned treatment works or some other cause, the department may terminate the permit by written notice to the permittee. The termination of the permit shall be effective 30 days after the notice is sent, unless the permittee files a written objection of the termination with the department within the 30 day time period. If a notice of objection is filed by the permittee, then the department shall follow the procedures for preparation of a draft permit under s. NR 200.11
If the department proposes to modify a permit to authorize a substantial change to a nutrient management plan of a concentrated animal feeding operation (CAFO), the department is not required to provide notice of the substantial change under s. 283.39 (1) (a)
, Stats. The department shall provide a 14-day period, from the date on which notice is provided on the department's Internet Web site in accordance with s. 283.39 (1) (d)
, Stats., for written comments on a proposed modification to authorize a substantial change to a nutrient management plan. A petition for an informational hearing on a proposed permit modification to authorize a substantial change to a nutrient management plan of a concentrated animal feeding operation shall be filed within 14 days of the date notice is provided under s. 283.39 (1) (d)
Incorporation of a nutrient management plan in a CAFO general permit when a CAFO obtains coverage under a general permit is not a permit modification subject to the notice and public notice procedures in the subsection.
NR 203.135 History
History: CR 14-027: cr. Register July 2015 No. 715, eff. 8-1-15. NR 203.136
NR 203.136 Causes for a modification, revocation and reissuance, or termination. NR 203.136(1)
The department may modify a permit for any of the following causes:
Changes to facility or discharge.
There are material and substantial alterations or additions to the permitted facility or activity, including changes in sludge use or disposal which occurred after permit reissuance which would justify the application of different permit conditions or the addition of permit conditions.
The department has received new information, other than revised regulations, guidance or test methods, that was not available at the time of permit issuance or reissuance and that would have justified different permit terms or conditions.
New regulations or standards.
After permit issuance or reissuance, the standards or regulations have changed and a permittee has requested a change in a timely manner, or a judicial decision stays or remands an applicable standard or regulation that requires a change to the permit. For purposes of this paragraph, a changed standard or regulation means a change in an effluent limitation guideline, a change in secondary treatment regulations, or a change in a water quality standard that has been approved by EPA.
A decision from an administrative law judge or judicial court, or a signed stipulation to resolve a s. 283.63
, Stats., contested case hearing, specifies a change to a permit term or condition that was the subject of the contested case hearing or judicial proceeding.
The department determines good cause exists for modification of the compliance schedule such as events over which the permittee has little or no control and for which there is no reasonably available remedy. The department may also modify a compliance schedule to reflect time lost during construction of an innovative or alternative facility. The compliance schedule may not be modified to extend beyond the deadlines established under state and federal law.
If a permittee has filed a variance request to an effluent limitation or thermal discharge, or a variance from a technology based effluent limit based on the presence of fundamentally different factors from those on which the effluent limitations guideline was based.
When required to incorporate an applicable toxic effluent standard or prohibition.
When required by a provision in the permit that requires a modification or reopening of the permit.
Upon the request of a permittee for an adjustment to a technology based limitation based on pollutants in the intake water, provided the permittee qualifies for the limit adjustment, or the department may modify a technology based limitation based on an intake credit if the permittee no longer qualifies for the adjustment.
When necessary to establish a compliance schedule for development of a pretreatment program.
Failure to notify.
Upon failure of the department to notify another state whose waters may be affected by the discharge.
When the level of discharge of any pollutant which is not limited in the permit exceeds the level which can be achieved by the technology-based treatment requirements applicable to the permittee.
To correct technical mistakes such as errors in calculations or mistakes in applying pertinent regulations to permit terms and conditions.
Unable to achieve effluent limitation.
Where the permittee has installed a treatment technology considered by the permit writer in setting effluent limitations, and where the permittee has properly operated and maintained its treatment facilities, but nevertheless has been unable to achieve compliance with those effluent limitations, the department may modify the limitations to reflect the level of pollutant control actually achieved, but in no case be less stringent than a subsequently promulgated effluent limitations guideline.
Land application plans.
When required by a permit condition to incorporate a land application plan for beneficial reuse for sewage sludge or other biosolids, to revise an existing land application plan or to add a land application.
Transfer of permit.
To reflect a change in ownership or operator of a permitted facility. A transfer of a permit to a new owner or operator is subject to all of the following procedures:
A permit may only be transferred after notification of the department of the proposed new permittee. The modification request shall include the “Facility Information" section of the permit application or equivalent.
The current permittee and proposed new permittee shall submit to the department a written agreement that specifies the date of transfer and acceptance of responsibility for compliance with the permit and liability for any violations.
The modification is exempt from public notice procedures under s. NR 203.015
, if the department determines no other change to the permit is necessary.
One of the causes for termination in sub. (3)
exists and the department determines that a modification is more appropriate than termination.
(2) Revocation and reissuance.
The department may revoke and reissue a permit for any of the following causes:
For any of the causes for a modification listed in sub. (1)
provided the permittee agrees to the revocation and reissuance.
Based on one of the causes for termination in sub. (3)
if the department determines that a revocation and reissuance is the appropriate action to take.
The department may terminate a permit, or deny an application for reissuance, for any of the following causes:
Substantial noncompliance by the permittee with any condition of a permit.
Failure by the permittee in the permit application or during the permit issuance process to fully disclose all relevant facts, or the permittee's misrepresentation of any relevant facts at any time.
A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification, revocation and reissuance, or termination.
A change in any condition that requires either a temporary or permanent reduction or elimination of any discharge or sludge use or disposal practice regulated by the permit.
NR 203.136 Note
Refer to 40 CFR 122.62
, and 122.64
for federal regulations on the causes for a permit modification, revocation and reissuance, or termination.
NR 203.136 History
History: CR 14-027: cr. Register July 2015 No. 715, eff. 8-1-15; correction in (1) (c) made under s. 35.17, Stats., Register July 2015 No. 715. NR 203.14
NR 203.14 Intent.
The purpose of this subchapter is to provide adequate procedures to insure as broad a degree of public participation in administrative adjudication of WPDES permits and their conditions as is consistent with procedural due process to the parties involved in the proceedings.
NR 203.15 Applicability of subchapter. NR 203.15(1)
This subchapter is applicable only to the review of the following:
The reasonableness of or necessity for any term or conditions of any issued or modified WPDES permit.
If the hearing is a contested case pursuant to s. 227.01 (3)
, Stats., the rules in ch. NR 2
, will be applicable to the extent that they are not in conflict with the specific procedures in this subchapter for WPDES adjudicatory hearings.
NR 203.15 History
Cr. Register, January, 1974, No. 217
, eff. 2-1-74; am. (1) (a), Register, September, 1984, No. 345
, eff. 10-1-84; am. (1) (a), (b) and (2), Register, February, 1996, No. 482
, eff. 3-1-96; corrections in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, November, 1996, No. 491
A review hearing pursuant to this subchapter may be petitioned by any permit applicant, a permittee, a state affected or to be affected by a discharge or 5 or more persons.
The petition shall be filed within 60 days after notice of any action, which is reviewable under this section, is issued by the department.
NR 203.16 History
Cr. Register, January, 1974, No. 217
, eff. 2-1-74; am. (2), Register, February, 1996, No. 482
, eff. 3-1-96.
TO THE DEPARTMENT OF NATURAL RESOURCES:
The undersigned hereby petition(s) for a review of the department's (proposed rule) (decision) entitled and dated , 2 . The specific issue(s) requested to be reviewed (is) (are): The specific interest(s) of the petitioner(s) (is) (are): . The reasons why a hearing is warranted are: .
NR 203.17 History
Cr. Register, January, 1974, No. 217
, eff. 2-1-74.
NR 203.18 Form of hearing notice; content. NR 203.18(1)(1)
Form of hearing notice.
Notice of a scheduled public hearing shall be in writing, with a title identifying the subject of the notice and the number of the proposed rule, and the number of the subject permit or permit application.
(2) Content of hearing notice.
The notice of a scheduled public hearing shall contain the following:
The name, address, and phone number of the governmental unit conducting the hearing.
If applicable, the name of the waterway to which the discharge is to be made, a general statement of the location of the proposed discharge, and a statement whether such discharge is a new or existing discharge.
Information regarding the date, time and location of the hearing.
If applicable, a brief statement that a public notice of a completed permit application had been issued, including date of issuance.
The address and phone number where interested persons may obtain further information, request a copy of each draft permit if applicable, request a copy of each fact sheet when applicable, request a copy of proposed rules when applicable and inspect and copy forms and related documents.
A statement that reasonable costs will be charged for copies of all information excluding public notices and fact sheets.
Where applicable, a statement that confidential information has been received and used to determine some of the conditions for the permit.
If it should be necessary to allow less than 30 days' notice prior to a hearing, a statement of the reasons for such shorter time period.
A brief description of the nature of the hearing and the procedures to be used at the hearing.
(3) Circulation of notice.
The notice of hearing shall be circulated pursuant to the provisions of ss. NR 203.02 (4)
and 203.03 (4)
, at least 30 days prior to the hearing. If it is necessary to allow less than 30 days' notice prior to a hearing, the hearing notice shall state the reasons for the shorter time period.
NR 203.18 History
Cr. Register, January, 1974, No. 217
, eff. 2-1-74; am. (3), Register, September, 1984, No. 345
, eff. 10-1-84; correction in (3) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 1984, No. 345
; am. (2) (d) and (f), (3), Register, February, 1996, No. 482
, eff. 3-1-96.
NR 203.19 Location of hearing.
The location of the hearing shall be in conformance with s. NR 203.07
NR 203.19 History
Cr. Register, January, 1974, No. 217
, eff. 2-1-74; correction made under s. 13.93 (2m) (b) 7., Stats., Register, September, 1984, No. 345
NR 203.20 Final decision.
The final decision on the issues raised by the petitioners shall be made within 90 days of the close of the hearing.