ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING, AMENDING, REPEALING AND RECREATING, AND CREATING RULES
The statement of scope for this rule, SS 032-12 was approved by the Governor on May 29, 2012, published in Register No. 678A, on June 14, 2012 and approved by the Natural Resources Board on June 27, 2012.
The Wisconsin Natural Resources Board adopts an order to repeal NR 219.04, Table BM; to renumber NR 219.05 and 219.06; to amend NR 157.21, 219.02 (1)(intro.) and (2), 219.04 (1), (2), (4) (Note) and 233.40 (2); to repeal and recreate NR 219.04 Tables A, B, C, D, E, EM, ES and F; and to create NR 219.04 Tables G and H, relating to analytical methods used for Wisconsin Pollutant Discharge Elimination System (WPDES) compliance.
Analysis Prepared by the Department of Natural Resources
1. Statutes interpreted:
2. Statutory authority:
3. Explanation of agency authority:
Section 281.19(1), Stats. authorizes the department to issue general orders, and adopt rules applicable throughout the state for the construction, installation, use and operation of systems, methods and means to prevent and abate pollution of the waters of the state. Section 283.31, Stats. prohibits the discharge of any pollutant into any waters of the state or the disposal of sludge from a treatment work by any person unless such discharge or disposal is done under a permit issued by the department. Section 283.55 (1), Stats. requires permittees to use monitoring methods, including where appropriate, biological monitoring methods, to identify and determine the amount of each pollutant discharged from each point source under the owner’s or operator’s ownership or control. Section 299.15 (2) (a), Stats. authorizes the department by rule to prescribe methods of analysis for pollutants.
4. Related statutes or rules:
Chapters 157, 233, Wis. Adm. Code and ch. 283, Stats.
5. Plain language analysis:
Specifically, the proposed rule package will address EPA's issues with the Department rule (NR 219) 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 ch. NR 219 all references to allowing SW 846 methods as "approved" methods for analysis of wastewater samples. EPA has also requested that DNR update ch. 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 ch. 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 ch. NR 219 at this time.
6. Summary of, and comparison with, existing or proposed federal regulations.
The federal counterpart to this rule is 40 CFR 136. On May 18, 2012, EPA published as final rule, "Guidelines Establishing Test Procedures for the Analysis of Pollutants Under the Clean Water Act; Analysis and Sampling Procedures”. The proposed revision to ch. NR 219 incorporates these changes and is consistent with the federal regulations.
7. Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan and Minnesota:
The States of Illinois, Iowa, Michigan, and Minnesota have wastewater programs delegated to them from the U.S. Environmental Protection Agency. Wisconsin has been the only state within EPA Region 5 which has allowed the use of SW-846 methods for NPDES compliance monitoring. Therefore, removing SW-846 methods from the rule will bring Wisconsin into line with other states.
With respect to new methods promulgated by the EPA, the Illinois EPA incorporated changes to 40 CFR Part 136 with legislation which took effect February 2013. The State of Michigan does not certify laboratories that perform analyses of wastewater. The Minnesota Environmental Laboratory Accreditation Program incorporated the changes to 40 CFR Part 136 for its October 2013 application period. The Iowa Department of Natural Resources rules reference the 2007 edition of 40 CFR Part 136 at this time.
8. Summary of factual data and analytical methodologies used and how any related findings support the regulatory approach chosen:
This proposed rule revision brings Wisconsin up to date with the current federal rules that establish analytical test methods.
9. Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact report:
Alternate approved methods from different authoritative sources are available for all of the analytical methods that are being deleted. The quality control requirements for analyses are established in ch. NR 149; these will not change with updating methods tables. For several analyses, newer methods and techniques have been added. It is possible for a laboratory to change the analytical method it uses and not incur additional costs or, in some cases, actually reduce costs. The requirements imposed upon small business include following approved analytical methods listed in the rule. There are no reporting requirements in NR 219. The small businesses that will likely be impacted by this rule are commercial laboratories certified under ch. NR 149. The vast majority of these laboratories likely follow approved analytical methods that are being maintained in this chapter.
10. Effect on small business:
The proposed changes to ch. NR 219 potentially only affect larger certified commercial laboratories and larger municipal wastewater facilities that analyze samples for compliance with their Wisconsin Pollutant Discharge Elimination System (WPDES) permit. There are 371 laboratories certified or registered to perform analyses by the department. Of these, 238 municipal wastewater laboratories, 48 industrial environmental, and 71 commercial environmental will be impacted by this rule. The remaining laboratories are public health laboratories that analyze drinking water and those that perform testing at hazardous waste facilities. This update will allow laboratories to utilize new techniques that currently require approval by the U. S. Environmental Protection Agency and deletes outdated methods that lack adequate quality control procedures.
Of the 371 certified or registered laboratories that will be impacted by this rule, there are less than 12, 3% of the total, that fit the definition of "small businesses". This proposed rule would affect commercial, industrial, and municipal laboratories that analyze effluent discharges to determine compliance with WPDES permit limitations. All laboratories performing analyses to determine WPDES compliance are expected to keep detailed records of all laboratory information, including: analytical methods and results, corrective action logs, equipment records, quality control records, and sample receipt logbooks.
This proposal does not change analytical testing requirements, nor does it address any change in reporting, schedule or deadline requirements. Sections 299.11 and 283.55, Stats., do not allow for less stringent schedules, deadlines or reporting requirements. Laboratories may seek approval of an alternate test procedure, as specified in s. NR 219.05, Wisc. Adm. Code, from U.S. EPA. WPDES permit terms and conditions and other related regulations require that permitted facilities conduct analytical tests in compliance with the procedures of ch. NR 219. The Laboratory Certification and Registration Program audits laboratories performing these analyses to ensure that testing is performed in compliance with the proposed rule. If a laboratory does not follow an approved method, it is cited during the audit process; a laboratory must correct all identified deficiencies to maintain their certification under ch. NR 149.
11. Agency contact person:
Richard Mealy, Program Chemist
Department of Natural Resources
Laboratory Certification – SS/7
PO Box 7921
Madison, WI 53707