Contact Person
Scott Loomans, Wildlife Regulation Policy Specialist, 101 South Webster St., Madison, WI 53707. (608) 267-2452,
scott.loomans@wisconsin.gov.
Natural Resources
Environmental Protection — General, Chs.
NR 100—
This statement of scope was approved by the governor on May 29, 2012.
Rule No.
Relating to
Revisions to Chapter
NR 106 related to the Wisconsin's Pollutant Discharge Elimination System Permit (WPDES) Program for the purpose of making the rules consistent with federal regulations (Rule Package #4).
Rule Type
Permanent.
Finding/Nature of Emergency (Emergency Rule Only)
Not applicable.
Detailed Description of the Objective of the Proposed Rule
The proposed rule will include changes to Chapter
NR 106 to address some of issues raised by U.S. Environmental Protection Agency (EPA) in a July 18
th 2011 letter. In the letter, EPA identified 75 potential inconsistencies between Wisconsin's state statutory or regulatory authority and federal regulations. The proposed changes to Ch.
NR 106 will address some of the issues included in EPA's letter and will also include other related minor clarifying changes and corrections. Any proposed changes to current practices are discussed below. The proposed changes to Ch.
NR 106 include changes related to acute limit calculations, the allowance for extended compliance schedules for tier II value based limitations, ammonia water quality based effluent limitations, time periods for expression of certain water quality based effluent limitations, chloride water quality based effluent limitations, alternative limitations when test methods are not sufficiently sensitive, whole effluent toxicity testing (WET) reasonable potential procedures and other WET issues, and TMDL procedures required under the Great Lakes Initiative federal regulations. It should be noted that the department will be proposing a total of eight packages to address most of the 75 issues identified in EPA's July 18
th letter. The department combined issues together based on subject matter. There will be other packages that include revisions to Ch.
NR 106.
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 106 will be modified to address the following specific issues identified by EPA in its July 18, 2011 letter:
•
Issue #10 – Revisions regarding the Great Lakes Initiative and its impact on Total Maximum Daily Loads (TMDL), waste load allocations (WLA), determining reasonable potential and establishing water quality-based effluent limits (WQBEL). These requirements already apply directly to Wisconsin waters in the Great Lakes basin because EPA overpromulgated the procedures for Wisconsin waters in
40 CFR 132.6(h).
•
Issue #28 – Revise rule for calculating acute toxicity limits (would not affect strictness of limits when viewed in context with chronic toxicity limits).
•
Issue #32 – Revise language addressing compliance schedules for limits based on “secondary" values in Great Lakes Basin permits.
•
Issues #31, #35, #36, #37 and #38 – Ammonia rule language clarifications regarding compliance schedules, water quality based effluent limits and variances.
•
Issues #2, #30, #34, #41 – Language clarifications addressing the expression of contaminant limits, including the duration of time over which limits for toxic substances are expressed, mass limitations, chloride effluent limits, ammonia effluent limits, contaminants in intake water and internal waste streams.
•
Issues # 39, #40, #42 and #43 – Chloride rule language clarifications addressing variances, water quality based effluent limits, Whole Effluent Toxicity (WET) Testing and chlorinated source water.
•
Issue #70 – Rule changes regarding alternative limits.
•
Issue #74 – Language clarification regarding Whole Effluent Toxicity (WET) testing. This rule will result in procedural changes, including an increase in testing requirements following failed WET tests.
Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
The purpose of this proposed rule package is to ensure that Wisconsin's WPDES permit program is consistent with federal regulations. 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 this rule package. Additional authority is discussed below.
Section
283.55 (1) (d) provides the department with rulemaking authority for effluent sampling methods. Section
283.55 (1) (e) requires that permittees provide any other information to the department that is needed to determine the type and quantity of pollutants discharged.
Wisconsin Stat. s.
283.15 provides the department with authority for rules on variance procedures.
In addition, s.
283.31 (3) and
(4), Stats., 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, state water quality standards and total maximum daily loads. 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.
Estimate of Amount of Time that State Employees will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
To comply with the requirements noted by U.S. EPA in its July 2011 letter, it is estimated that rule development will require staff time of about 600 hours.
List with Description of all Entities that may be Affected by the Proposed Rule
Publicly-owned Treatment Works (POTW) facilities and other facilities requiring Wisconsin Pollutant Discharge Elimination System (WPDES) permits may be affected by the proposed rule.
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
The proposed changes in this rule will bring Wisconsin Administrative Code Ch.
NR 106 into compliance with federal regulations
40 C.F.R. s. 122 and with the Federal Clean Water Act.
Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to have a Significant Economic Impact on Small Businesses)
Many of the rule changes are not substantive, as the changes would merely clarify language without changing current interpretation or departmental procedures. Potential increases in the frequency of sample collection and the amount of water quality tests conducted, including increases in WET testing are expected to have a moderate economic impact on small businesses.
Contact Person
Peggy Wischhoff (608) 267-7627.
Natural Resources
Environmental Protection — General, Chs.
NR 100—
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
Rule revisions related to the Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program to ensure that permit limitations and requirements are consistent with federal regulations (Rule Package #5).
Rule Type
Permanent.
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 or potential inconsistencies with Wisconsin's authority to administer its National Pollutant Discharge Elimination System (NPDES) approved program. 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 clarifying the department's 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. Four of the rule packages have already initiated the rule making process. The department had begun addressing the issues in the four 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 rule packages already started, the department is proposing four additional rule packages to address EPA's concerns and this proposed rule is one of the four. The department has compiled the issues into packages based on either subject matter or rule chapter. Each proposed rule packages will also include minor clarification changes to affected chapters.
This proposed package will address some of the issues raised in EPA's July 18
th letter, and includes revisions to Chapters
NR 106,
200,
205,
210, and
220 through
296. The purpose of the proposed changes is to ensure that the state's regulations are consistent with federal regulations. Specifically, the proposed rules will address EPA's issues regarding Technology Based Limits, New Source Performance Standards (NSPS), Expression of Limits in Permits and other limitation provisions in
40 CFR 122.45, Mass limits in Permits, General Reasonable Potential Procedures, Pollutants in the Intake for Technology Based Limits, Best Management Practices in Permits, General Compliance Schedule provisions, Permit Application requirements for Industrial dischargers, and Intake requirements for new facilities under CWA (316(b)). Minor corrections, reorganization and clarifying changes may also be made to Chapters
NR 106,
200,
205,
210, and
220 through
296 to incorporate the federal changes.
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 18, 2011 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 rule changes should be made so state rules for the WPDES permit program are more specific and clearly consistent with the federal regulations specified below.
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 permittees affected by these proposed rule changes. One exception may be EPA Issue involving expression of limits in permits. For some permits there may be added limits. Although there may be changes in how limits are expressed in some permits, the changes should not significantly impact a permittee's ability to meet the limits or the monitoring necessary to demonstrate compliance. The department continues to work on this issue with EPA.
Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Wisconsin 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. s.
283.55 (1) (d) provides the department with rulemaking authority for effluent sampling methods. Section
283.55 (1) (e) requires that permittees provide any other information to the department that is needed to determine the type and quantity of pollutants discharged.
Wisconsin Stat. s.
283.13 (1) states that the department shall promulgate a list of categories and classes of point sources which is at least as comprehensive as the list appearing in applicable federal laws. One of the proposed rule changes will update the list of categories and classes of point sources consistent with federal regulations. Wis. Stat. ss.
283.13 (2) – (4) requires compliance with treatment technology limitations. Wis. Stat. s.
283.19 states that the department shall promulgate by rule new source performance standards and Wis. Stat. s.
283.21 (1) provides authority for the department to promulgate by rule effluent standards.
In addition, Wis. Stat. ss.
283.31 (3) and
(4), state 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. Wis. Stat. s.
283.31 (6) states that any permit issued by the department my require that the location, design, construction and capacity of water intake structures reflect the best technology available for minimizing adverse environmental impacts. All of these explicit statutory requirements in combination with Wis. Stat. s.
227.11 (2) provide the department with authority to promulgate rules that are consistent with federal regulations. The purpose of these proposed rule changes is to include specific federal permit procedures and requirements that apply to state NPDES permit programs.
Estimate of Amount of Time that State Employees will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
500 hours of state employee time to develop the rule. 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 and industrial wastewater dischargers with specific or general WPDES permits.
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 would make State rules consistent with federal regulations. Specifically, this rule will include revisions regarding the following federal statutes and regulations that were included in the July 18
th letter: Dissolved metal limits, limit duration, intake credits in limit calculations, internal waste streams and mass limits in
40 CFR 122.45 (EPA Issue #2); Federal New Source Performance Standards in
40 CFR 400 series (EPA Issue #7); General reasonable potential procedures for water quality based effluent limitations and narrative standards in
40 CFR 122.44(d) (EPA Issue #11); Best management practices in permits in
40 CFR 122.44(k) (EPA Issue # 13); Antibacksliding requirements in
33 USC 1342(o) and
40 CFR 122.44(l) (EPA Issue # 14); Compliance schedules in
40 CFR 122.47 (EPA Issue #15 and #31 and #32); Adjustment of technology effluent limits when part of wastewater is discharged in POTWs or land applied in
40 CFR 122.50 (EPA Issue # 20 and #2); Compliance schedules where landfill leachate is an issue in
40 CFR 122.47 (EPA Issue #29); Expedited variance procedures in
40 CFR 122.21(o) (EPA Issue #46); and Application requirements for existing manufacturing, commercial, mining, silvicultural discharger, aquatic animal production facilities, new sources, new discharges and cooling water intake structures in
40 CFR 122.21(g), (i), (k) and (r) (EPA Issue #61).
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 there will be limited to moderate economic impacts of implementing the proposed rule because either: the state has already been implementing these requirements in permits through general statutory or regulatory authority, the regulatory changes are very minor or the regulations are not applicable to any permittees in Wisconsin. There are three issues that potentially have more impact. In a small number of cases, effluent limits may be added to permits for pollutants already limited in the permit with a different averaging period. Although there may be changes in how limits are expressed in some permits, the changes should not significantly impact a permittee's ability to meet the limits or the monitoring necessary to demonstrate compliance. The department continues to work on this issue with EPA. A second issue is Best Management Practices (BMP). The department believes it already has authority to require BMPs in permits and requires BMPs for storm water and CAFO permits but will make changes to rule to broaden BMP authority consistent with federal regulations. A third issue is reasonable potential to achieve narrative water quality standards. This issue could result in some cases of stricter requirements to control such things as objectionable deposits, scum or odor, but this is unlikely since the department already has the authority to consider exceedances of narrative standards in permit issuances. The department simply intends to clarify its authority.
For the purpose of this scope statement, the department has considered four aspects of the economic analysis: essence of rule, affected groups, response of affected groups and total costs.
Essence of Rule: The rule changes mainly to form of certain permit limits. For example, it might add a monthly average where previously the department had only required only a daily limit.
Affected Groups: Municipal and industrial wastewater dischargers with specific or general WPDES permits.
Response of Affected Groups: Affected groups will need to spend some resources (time, money) to implement any changes that are made to their permits based on any rule changes. These changes will occur over the next 10 years as permits are renewed.
Total Costs: We believe for all impacted permittees in the state the proposed rule will have less than $ 20,000,000 total implementation and compliance costs including any one time costs to adjust business practices and operations and ongoing costs for the future. Therefore we will analyze this proposed rule using a moderate solicitation period for economic analysis.
Contact Person
Keith Pierce 608 266-1198.
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.
