Finding/Nature of Emergency (Emergency Rule Only)
Not applicable.
Detailed Description of the Objective of the Proposed Rule
On July 18, 2011, the department received a letter from EPA identifying seventy five questions and potential inconsistencies between Wisconsin's statutory or regulatory authority to administer its National Pollutant Discharge Elimination System (NPDES) approved program and federal statutes or regulations. In the letter, EPA stated that the department must either demonstrate that it has adequate authority to administer the program for the seventy five issues, or promulgate rules or enact statutory language providing that authority. In response to the questions and comments, the department proposed a broad based approach that included rulemaking, statutory changes, a demonstration of authority through an Attorney General's statement, and an addendum to Memorandum of Agreement.
For the rule making component of this broad based approach, the department is proposing eight different rule packages to address some of the listed concerns. For four of the rule packages, the department has already initiated the rule making process. The department had begun addressing the issues in these rule packages prior to EPA's letter because the department was aware that rule revisions were needed for consistency with federal regulations.
In addition to the packages already started, the department is proposing four additional rule packages to address EPA's concerns of which this proposed rule is one. The department has compiled the issues into packages based on either subject matter or rule chapter. The proposed rule package may also include minor corrections and clarifying changes to the affected chapters.
This proposed rule package addresses 13 of the issues raised in EPA's July 18
th letter, and includes revisions to Chapters
NR 200,
201,
203, and
205. The purpose of the proposed changes is to ensure that the state's regulations are consistent with federal regulations as well as recent statutory revisions in
2011 Act 167. Specifically, the proposed rule package will address EPA's issues with state authority regarding permit processing issues and other permit issuance procedural matters. The federal issue in EPA's July 18
th letter and corresponding DNR rule chapters proposed for change are shown below.
Issue Description
40 CFR Part Wis. Adm. Code
3 Process and reasons for permit modifications, 124.5(a),(c)(d) NR 203
terminations and revocation, and reissuances. 122.62 and 122.64
I8 Signatures and certification statement for 122.22(a),(b),(d) NR 205.07(1)(g)
permit applications.
21 Description of elements in fact sheets. 122.56 NR 201
22 Sending draft permits to agencies and others. 124.10 NR 203
45 Permits not a property interest, permit shield, 122.5 NR 205
etc. provisions.
47 Signatory to permit. 122.22 NR 205.07(1)(g)
48 Termination of permit for certain violations. 122.41(a) NR 205.07(1)(a)
49 Notification of facility changes. 122.41(1)(1)(i) NR 205.07(1)(q)(1)
50 Notice of intent to terminate permit. 124.5(a)-(d) NR 203
51 Public information hearing requests. 124.11 NR 203.05(2)(c)
62 Suspension of permits eliminated. 122.41(f) NR 205.07(1)(b)
65 Preparation of draft permit required. 124.6 NR 200.10
66 Fact sheet for every WPDES facility. 124.8 and 124.56 NR 201.01
Minor clarifications and corrections will also be made to these chapters. In addition, the department will revise the terms used throughout the chapter so that they are consistent with federal regulations, and include changes to incorporate recent statutory revisions in
2011 Act 167 for permit processing and notices (e.g. electronic notices, reissuance, revoked and reissuance, termination, and 14 day comment period for substantial changes to CAFO nutrient management plans).
Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives
In the July 18th letter, EPA notified Wisconsin that changes must be made to state rules or statutes to ensure consistency with federal laws and regulations for the NPDES permit program, or alternatively, the state must demonstrate that it has adequate authority (through an Attorney General's Statement or other information). For all of the issues addressed in this rule package, the department determined that proposing rule changes should be made so state rules for the WPDES permit program are more detailed and clearly consistent with federal regulations.
For most of the issues addressed in the proposed rules, the department has been issuing permits under state statutory provisions that are consistent with federal regulations. Therefore in most cases, there will be little change for the permittee affected by these proposed rule changes or other citizens. The issues in the proposed rule package are minor technical discrepancies that have little bearing on the administration of the WPDES program.
The proposed rule changes will include new requirements for electronic and web notices established pursuant to
2011 Act 167. Mandatory electronic notification is an added step for the department in the permit public notification process. Also, pursuant to
2011 Act 167, there are different notice procedures and comment periods for substantial changes to nutrient management plans of permitted concentrated animal feeding operations (CAFOS). These new state statutory requirements state that notices may be done electronically and state the department shall provide a 14-day period for comments and hearing requests on substantial changes to nutrient management plans. Allowing less than 30 days notice for these types of changes are consistent with federal regulations in
40 CFR 122.42(e)(6).
Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
The primary purpose of this proposed rule package is to incorporate specific federal NPDES permit procedures and requirements that apply to Wisconsin's WPDES permit program, and to include new permit processing requirements for the WPDES permit program in
2011 Act 167. Wis. Stat. s.
283.11 (1) states that the department shall promulgate by rule effluent limitations, standards of performance for new sources, toxic effluent standards or prohibitions and pretreatment standards for any category or class of point sources established by the U.S. Environmental Protection Agency and for which that agency has promulgated any effluent limitations, toxic effluent standards or prohibitions or pretreatment standards for any pollutant. Subject to a few exceptions, Wis. Stat. s.
283.11 (2) further states that rules must comply with and not exceed federal law and regulations. Wis. Stat. s.
283.11 clearly provides rulemaking authority for the majority of this rule package. Additional authority is discussed below.
Wisconsin Stat. s.
283.37 (1) specifies that the department shall promulgate rules relating to applications for permits under this chapter which shall require at a minimum that every owner or operator of a point source discharging pollutants into the waters of the state shall have on file either a completed permit application on forms provided by the department or a completed permit application under section 13 of the rivers and harbors act of 1899,
33 USC 407 or under the federal water pollution control act, as amended,
33 USC 1251 to
1376. This statutory provision provides rulemaking authority related to permit applications.
Wisconsin Stat. ss.
283.39 (1) and s.
283.41 state that the department shall promulgate by rule procedures for providing notice of permit applications and permit actions.
In addition, Wis. Stat. ss.
283.31 (3) and
(4) states that the department may issue a permit upon condition that the permit contains limitations necessary to comply with any applicable federal law or regulation and state water quality standards. Wis. Stat. s.
283.13 (5) states that the department shall establish more stringent limitations than required under subs. (2) and (4) (technology based requirements) and shall require compliance with such limitations in any permit issued, reissued or modified if these limitations are necessary to meet applicable water quality standards, treatment standards, schedules of compliance or any other state or federal law, rule or regulations. All of these explicit statutory requirements in combination with s.
227.11 (2) provide the department with authority to promulgate rules that are consistent with federal regulations.
Finally, the following list of sections in Chapter
283, Wis. Stats., in combination with s.
227.11 (2), Wis. Stats., provides the department with authority to promulgate rules that are consistent with federal regulations.
Wis. Stats. Description
283.49 Public hearing.
283.45 Fact sheets.
283.53 Permit duration, modification, revocation and reissuance.
283.63 Review of permits, decisions, terms and conditions.
Estimate of Amount of Time that State Employees will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
400 hours of state employee time to develop the rule package. The department will consult with permitted facilities and other interested groups as well as EPA in developing these rule revisions.
List with Description of all Entities that may be Affected by the Proposed Rule
•
Municipal wastewater treatment systems with individual or general WPDES permits.
•
Industries with individual or general WPDES permits.
•
Public participation procedures in the permit issuance process, including new procedures for substantial changes to the nutrient management plans for permitted CAFOs.
Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
This rule package will ensure state rules are consistent with federal regulations identified by EPA in its July 18th letter that are specified in section 2 above.
Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to have a Significant Economic Impact on Small Businesses)
The department believes the economic impact would be minimal because the regulatory changes are very minor (insignificant impact on small businesses). Initially, there will be some additional work for department staff to establish procedures for electronic notices.
Contact Person
Paul W. Luebke
Bureau of Water Quality
608-266-0234
Natural Resources
Environmental Protection — Wis. Pollutant Discharge Elimination System, Chs.
NR 200—
This statement of scope was approved by the governor on May 29, 2012.
Rule No.
Relating to
Analytical test methods and procedures for analysis of wastewater samples.
Rule Type
Permanent.
Finding/Nature of Emergency (Emergency Rule Only)
Not applicable.
Detailed Description of the Objective of the Proposed Rule
This rule change is necessary to comply with findings by the Environmental Protection Agency (EPA).
On July 28, 2011, the department received a letter (dated July 18, 2011) from EPA identifying seventy-five questions and potential inconsistencies between Wisconsin's statutory or regulatory authority to administer its National Pollutant Discharge Elimination System (NPDES) approved program and federal statutes or regulations.
DNR is taking a broad-based approach in response to EPA's letter. For the rule making component of this broad based approach, the department is proposing eight different rule packages to address some of the listed concerns. This is the eighth proposed rule package which is designed to address the ninth citation in EPA's July 18
th letter. After conferring with EPA, the department is proposing to respond to the ninth citation through revisions to Chapter
NR 219. The purpose of the proposed changes is to ensure that the state's regulations are consistent with federal regulations.
Specifically, the proposed rule package will address EPA's issues with the department rule incorporating SW 846 methods for wastewater sample analysis.
The EPA publication SW-846, entitled Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, is the waste division of EPA's official compendium of analytical and sampling methods that have been evaluated and approved for use in complying with the federal Resource Conservation and Recovery Act (RCRA) regulations. The DNR has allowed SW 846 methods for analysis of wastewater samples since 1995 because the methods are revised frequently and contain stringent quality control measures. However, EPA has requested that DNR remove from Chapter
NR 219 all references to allowing SW 846 methods as “approved" methods for analysis of wastewater samples. EPA has also requested that DNR update Chapter
NR 219 to incorporate analytical methods that have been federally approved in the Federal Register (
40 CFR 136).
Therefore, one objective of this rule change is to remove analytical methods that EPA has not approved for wastewater from the list of approved analyses in Chapter
NR 219. The other objective is to add methods that are currently allowed by EPA per
40 CFR Part 136 but are not included in Chapter
NR 219 at this time.
Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives
Chapter
NR 219 establishes analytical test methods, preservation procedures, requirements for laboratories, and procedures applicable to effluent limitations for discharges from point sources as authorized by ss.
299.11 and
283.55 (1), Stats. The proposed changes to this rule will remove SW 846 analytical methods that EPA has determined are not allowed for WPDES wastewater analyses. Chapter
NR 219 will also be changed to include methods now allowed by EPA under
40 CFR 136. In the July 18
th letter, EPA notified Wisconsin that changes must be made to state rules or statutes to ensure consistency with federal laws and regulations for the NPDES permit program, or alternatively, the state must demonstrate that it has adequate authority (through an Attorney General's Statement or other information). For all of the issues addressed in this rule package, the department determined that proposing rule changes should be made so state rules for the WPDES permit program are clearly consistent with federal regulations.
Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
The purpose of this proposed rule package is to amend Chapter
NR 219, Wis. Admin. Code, to comply with specific federal NPDES testing requirements that apply to Wisconsin's WPDES permit program.
Wisconsin Stat. s.
299.11 (7) (b) authorizes the department to prescribe by rule the accepted methodology to be followed by certified laboratories in conducting tests. This section requires the department to attempt to prescribe this methodology so that it is consistent with any methodology requirements under federal law, including under the federal water pollution control act, as amended,
33 USC 1251 to
1376.
Wisconsin Stat. s.
283.31 (3) authorizes the department to issue permits for the discharge of any pollutant or combination of pollutants upon certain conditions, including that such discharges will meet effluent limitations, standards of performance for new sources, effluent standards, prohibitions, and pretreatment standards, and any more stringent limitations including those necessary to comply with any applicable federal law.
Wisconsin Stat. s.
283.55 (1) authorizes the department to prescribe by rule the methods, locations, and manner of sampling of effluents from each owner or operator of a point source who is required to obtain a permit under 283.31. Samples and test results are required to meet the requirements in Wisconsin Stat. s.
283.55 (1) to provide records to the department regarding, among other things, the volume of effluent discharged and the amount of each pollutant discharged from each point source under the owner's or operator's control.
Wisconsin Stat. s.
281.19 (1) authorizes the department to adopt rules applicable throughout the state for the construction, installation, use and operation of practicable and available systems, methods, and means for preventing and abating pollution of waters of the state. Chapter
NR 219 prescribes procedures and test methods for determining the concentration and quantities of pollutants discharged under WPDES permits.
Estimate of Amount of Time that State Employees will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
It will take state employees approximately 160 hours to develop the rule and other resources to make the changes required by the EPA.
List with Description of all Entities that may be Affected by the Proposed Rule
75 Commercial Analytical Laboratories – these are laboratories that analyze environmental (aqueous, solid and drinking water) samples for hire.
57 Industrial Analytical Laboratories – these are laboratories that are a part of an industry and analyze environmental samples on their own behalf.
245 Municipal Analytical Laboratories – these are laboratories owned by a municipality that generally do analysis of samples for the community's wastewater treatment facility.
10 Public Health/Public Water Utility Analytical Laboratories – these are generally county labs that support the public health department in that area and analyze primarily drinking water samples but may do some wastewater analyses.
WPDES Permittees – these are the permittees that have a WPDES permit which requires samples to be analyzed by approved methods.
Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
This rule package will ensure state rules are consistent with federal regulations identified by EPA in its July 18th letter that are specified in section 2 above.
Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to have a Significant Economic Impact on Small Businesses)
