Specifically, the proposed rule package will address EPA’s issues with the state authority regarding permit processing issues and other permit issuance procedural matters. In a letter dated July 18, 2011, the U.S. Environmental Protection Agency (EPA) identified 75 potential issues with Wisconsin’s statutory and regulatory authority for the WPDES permit program. EPA directed the department to either make rule changes to address this inconsistency or obtain a statement from the Attorney General’s Office verifying that the existing rule is consistent with federal regulations. The department believes adoption of these rule changes (referred to as Rule Package 6) will address EPA’s concerns for 13 of the issues. The item number of the applicable EPA issue is indicated in each rule section that addresses an EPA issue.
Chapter NR 200 - This chapter contains the requirements for permit applications and water quality standards variances. A new section was created to add the federal regulations for the preparation of a draft permit after the receipt of a complete application, which were lacking in the rule as cited in EPA issue 65. Chapter NR 201 - This chapter contains the requirements for the contents of the fact sheet for WPDES permits. Because of several changes needed to update the existing rule this chapter was repealed and recreated. It now includes all the federal regulations to address EPA issues 21 and 66. It is also consistent with s. 283.45, Stats. A note states that if the public notice includes some of the information specified in the fact sheet it may be omitted from the fact sheet because it is more appropriate in the public notice (decision to issue or deny a permit and the beginning and end dates of the comment period). The recreated rule was written compliant with the format procedures for drafting rules that the existing rule did not follow. Chapter NR 203 - This chapter contains the processes for public noticing a draft permit, informational hearing, final determination to issue or deny a permit, and public adjudicatory hearing. Following are the significant changes to this rule: • The rule was revised to address EPA issues 3, 22, 50, and 51 to be consistent with federal regulations. This consists of language clarifying the processes for permit actions (modifications, revocation and reissuance, or termination), identifying the causes for permit actions, the notification of government agencies and others, and public informational hearing requests.
• The rule was revised to address 2011 Act 167 changes to ch. 283 and ch. 285, Stats., and changes initiated by the department to clarify public notice procedures. This consists of language to identify what is to be included in the public notice, allows use of the department’s Internet Web site to post public notices and documents, proposed variances to water quality standards may be included in the public notice, the term notification replaces circulation to reflect the broader use of electronic media, and permit actions related to substantial changes to concentrated animal feeding operation nutrient management plans. Chapter NR 205 - This chapter contains WPDES program definitions, general conditions applicable to WPDES permits, and requirements for the issuance of WPDES general permits. The rule was revised to address EPA issues 18, 45, 47, 48, 49, and 62 to be consistent with federal regulations. This consists of language that added termination of the permit for certain violations, replaced the use of the term suspension with termination, clarified the signatory requirements for permit documents, revised the reporting requirements for facility changes, and added general conditions that permit compliance constitutes compliance for purposes of enforcement and affirmative defense. 6. Summary and comparison with existing and proposed federal regulations:
The department rules will be consistent with existing federal regulations with the revisions contained in this rule package. No proposed federal regulations are applicable; none were mentioned in EPA’s letter that contained the 75 issues the department needed to address.
7. Comparison of similar rules in adjacent states:
All the other U.S. EPA Region 5 states (Illinois, Indiana, Michigan, Minnesota and Ohio) are subject to the U.S. EPA regulations that are delegated to the states for implementation. Wisconsin’s rules for permit processing and other permit issuance procedures should essentially be the same as the other states.
8. Summary of factual data and analytical methodologies:
Not applicable.
9. Analysis and supporting documentation used to determine effect on small business or in preparation of an economic impact analysis:
Not applicable. The requirements of this rule package establish permit processing procedures that are implemented by the department and affect department staff, not the permit applicants. Other changes to the standard permit conditions in ch. NR 205 are minor. 10. Effect on small business:
None, the requirements of this rule package affect the department not the permit applicants.
11. Agency contact:
Paul W. Luebke, PH
Wisconsin Department of Natural Resources
Bureau of Water Quality WQ/3
101 South Webster Street
P.O. Box 7921
Madison, WI 53707-7921
12. Where comments may be submitted:
Comments on the rule package may be submitted to the agency contact listed in item 11. A notice of public hearing was posted March 14, 2014. The rule package documents are posted on the Administrative Rules System Web site which can be accessed at the link below.
An informational hearing is scheduled for May 1, 2014. Comments on the proposed rule must be received on or before May 12, 2014.
SECTION 1. NR 200.11 is created to read:
NR 200.11 Draft Permit. (1) Once an application is complete, the department shall tentatively decide whether to prepare a draft permit or to deny the application.
(2) If the department tentatively decides to deny the permit application, the department shall issue a notice of intent to deny. A notice of intent to deny the permit application shall follow the same procedures as any draft permit prepared under this section. If the department’s final decision is that the tentative decision to deny the permit application was incorrect, the department shall withdraw the notice of intent to deny and proceed to prepare a draft permit under par. (4) of this section.
(3) If the department tentatively decides to issue a WPDES permit, a draft permit shall be prepared under paragraph (4) of this section.
(4) A draft permit shall contain terms and conditions required pursuant to ch. 283, Stats., and all rules promulgated pursuant to ch. 283, Stats. (5) All draft permits prepared by the department under this section shall be accompanied by a fact sheet if required under ch. NR 201. The department shall provide public notice of the draft permit and fact sheet, and opportunity for a public hearing under ch. NR 203 and ch. 283, Stats. SECTION 2. NR 201 is repealed and recreated to read:
FACT SHEET FOR WPDES PERMITS
NR 201.01 Purpose. The purpose of this chapter is to identify when the department shall prepare a fact sheet for a draft Wisconsin Pollutant Discharge Elimination System (WPDES) permit, and what information shall be included in the fact sheet. The fact sheet describes the discharge to be permitted with a brief explanation of the draft permit’s effluent limits, monitoring requirements, and other conditions. The department shall send a copy of the fact sheet to the applicant and any interested person upon request.
NR 201.02 Applicability. The department shall prepare a fact sheet for each discharge for which it proposes to issue a WPDES individual permit under s. 283.31, Stats., a storm water permit under s. 283.33, Stats., or a general permit under s. 283.35, Stats. A fact sheet does not need to be prepared for each facility that is granted coverage under a general permit that covers a specific category of discharge. NR 201.03 Contents of permit fact sheet. The fact sheet shall include all of the following information if applicable:
(1) The name and address of the applicant and facility location where the discharge occurs.
(2) A statement as to whether the discharge is in existence or is a proposed new discharge or new source.
(3) Justification for any waivers from permit application requirements that were granted.
(4) A brief description of the type of facility and activity resulting in the discharge that is described in the permit application and is subject to the permit requirements.
(5) A sketch or detailed description of the discharge outfall location with respect to the receiving water, surface water or groundwater as applicable.
(6) A description of the type and quantity of discharges regulated under the permit shall include all of the following:
(a) Information about the wastewater sources and by-product solids, biosolids or sludges.
(b) Treatment processes, storage facilities, and outfalls.
(c) The average daily discharge concentration and mass loading where appropriate of any pollutants subject to effluent limitations.
(d) The average daily flow in gallons or millions of gallons per day for continuous flows or the volume and frequency of batch discharges.
(e) The average monthly effluent temperatures for thermal discharge outfalls that may be subject to temperature limitations.
(7) If the tentative determination is to issue a permit all of the following shall be included:
(a) An explanation of the derivation of proposed effluent limitations for those pollutants proposed to be limited including: toxic pollutants, internal waste streams, and indicator pollutants. Include the calculation of any water quality based effluent limitations, technology based limitations, best professional judgment limitations established on a case-by-case basis, and limitations that are established for new sources or new discharges.
(b) Justification for any waivers granted from monitoring any pollutants contained in technology based effluent limit guidelines because the pollutant is not present or is only present at the background level due to the water intake without any increase of the pollutant from the activities of the discharger.
(c) A brief discussion and rationale of any proposed schedule of compliance, including interim dates and requirements, for meeting the proposed effluent limitations. For schedules to achieve compliance with water quality based effluent limitations, a brief description of treatment technologies or control strategies that may be available to achieve compliance.
(d) A brief summary of and basis for any proposed permit conditions including supporting regulatory or statutory references, which will have a significant impact on the discharge described in the application.
(e) An explanation of the limitations, conditions or standards included in the permit regarding by-product solids, biosolids or sludges, and a description of the land application plan or other means of disposal.
(8) A brief description of the uses for which the receiving waters have been classified and of the applicable water quality standards and effluent limitations.
(9) A statement of the tentative determination to issue or deny a permit.
(10) A description of the procedures for reaching a final decision on the draft permit including all of the following:
(a) The beginning and ending date of the 30 day period for submitting written comments.
(b) The address where comments will be received.
(c) Procedures for requesting a public hearing and a statement on the nature of such hearings.
(d) Any other procedures for public participation in the final determination.
(e) Name and contact information of the person from whom to obtain additional information.
