• Modify s. NR 106.06(6) provisions that regulate pollutant discharges when a pollutant is present in the intake water used as the water supply for industrial and municipal dischargers. The proposed rules adopt the federal requirements for establishing effluent limitations. • Remove the exemption from regulation in s. NR 106.10(1) and (2) for noncontact cooling water (NCCW) containing chlorine or other chemical additives present at levels consistent with those in public water supplies, as required by a Dane County Circuit Court Stipulation and Order in Case No. 12-CV-0569, Midwest Environmental Defense Center v. WDNR (March 2, 2012) and federal regulations. • Remove the special definition of “representative data” for purposes of determining reasonable potential to exceed effluent limitations for mercury in s. NR 106.145(1) and (2), as required by a Dane County Circuit Court Order in Case No. 12-CV-3654, Midwest Environmental Defense Center v. WDNR, (July 1, 1014) and federal regulations. 6. Summary and comparison with existing and proposed federal regulations:
The table below sets forth the sections of ch. NR 106 that the department is proposing to revise, the issue number in EPA’s July 18, 2011, letter that identifies the need for the proposed revision, and the issue and corresponding federal regulation that the department has considered in proposing these rules: Wis. Adm. Code Section | EPA Issue Number | Issue | Federal Code Section |
106.06(2) | 71 | BCC Mixing Zone Phase-outs | 40 C.F.R. Part 132, Appendix F, Procedure 3, paragraph C (Mixing Zones for Bioaccumulative Chemicals of Concern (BCCs)) |
106.06(6) 106.03(11m) | 10 | Pollutants in Intake Water | 40 C.F.R. 132.6, Appendix F, Procedure 5, paragraphs D and E (Consideration of Intake Pollutants) 40 C.F.R. 122.44(d)(1)(vii)(A) (Requiring that limits on point sources must comply with all applicable water quality standards) |
106.10(1) & (2) | 17 | Non-contact Cooling Water Exemption | 40 C.F.R. 122.44(d)(1)(i) (Requiring WQBELs for all pollutants which cause or have the reasonable potential to cause or contribute to an excursion above any state water quality standard) |
106.145(1) & (2) | 8 | Mercury Reasonable Potential Determination | 40 C.F.R. Part 132, Appendix F, Procedure 5 (Reasonable potential determination procedures) |
In 1995, EPA issued Final Water Quality Guidance for the Great Lakes System. The federal Guidance conforms with key treaty provisions agreed to by the United States and Canada in the Great Lakes Water Quality Agreement, a binational agreement establishing common water quality objectives for the Great Lakes. Section 118(c) of the Clean Water Act, 33 U.S.C. 1268(c), requires all Great Lakes states, including Wisconsin, to adopt procedures consistent with the federal Water Quality Guidance for the Great Lakes System. If a Great Lakes state fails to adopt the federal guidance, EPA must promulgate the federal standard for the state. In 2000, EPA overpromulgated sections of ss. NR 106.06 and 106.10 at 40 C.F.R. 132.6. In Issue 10 of EPA’s letter, EPA directed Wisconsin to amend state rules to cure the disapproval of the provisions of s. NR 106.06 regarding consideration of intake pollutants in determining reasonable potential. In Issue 17, EPA directed Wisconsin to revise s. NR 106.10 so it conforms to 40 C.F.R. 122.44(d) regarding reasonable potential determinations. In a February 17, 2009 letter, EPA objected to Wisconsin’s existing mercury reasonable potential rule in s. NR 106.145 as inconsistent with federal requirements. In Issue 8 of EPA’s letter, EPA directed Wisconsin to amend the rule to cure EPA’s 2009 disapproval. Section NR 106.06(2) currently contains a note expressing the State’s intent to develop a rule to phase out mixing zones for existing dischargers of bioaccumulative chemicals of concern (BCCs) to comply with the federal Great Lakes Water Quality Initiative (GLI). In Issue 71 of EPA’s letter, EPA directed Wisconsin to establish a rule to phase out mixing zones for BCCs for discharges within the Great Lakes basin. The department believes adoption of the proposed rules will address EPA’s concerns. The department received comments from the EPA on December 18, 2015 and additional clarifications on December 23, 2015. The department revised s. 106.06 in response to EPA’s comments. The department’s complete response to all comments received can be found in the Summary of Responses to Comments. 7. Comparison of similar rules in adjacent states:
All of the neighboring states (Illinois, Iowa, Michigan, and Minnesota) are subject to the federal Clean Water Act and EPA regulations. Like Wisconsin, the states of Illinois, Michigan, and Minnesota are subject to the GLI requirements for those portions of the state that are within the Great Lakes system (defined in 40 CFR 132.2 as “all the streams, rivers, lakes, and other bodies of water within the drainage system of the Great Lakes within the United States”). Because Iowa is not within the Great Lakes system, the GLI requirements do not apply to the Iowa implementation program. The proposed rules will align Wisconsin’s WPDES regulations with federal regulations and are consistent with the procedures used in neighboring GLI states (Illinois, Michigan and Minnesota). 8. Summary of factual data and analytical methodologies:
A discussion of EPA’s reasons for issuing the federal Water Quality Guidance for the Great Lakes System and the data underlying EPA’s analysis are included in “Final Water Quality Guidance for the Great Lakes System: Supplementary Information Document” (SID) (EPA 1995). See also 60 Fed. Reg. 15366 to 15385 (1995) (concerning the history of the Great Lakes Water Quality Initiative and EPA’s adoption of Final Water Quality Guidance for the Great Lakes System).
9. Analysis and supporting documentation used to determine effect on small business or in preparation of an economic impact analysis:
A notice soliciting comments regarding potential economic impacts of these proposed rule changes was sent to all industrial and municipal facilities currently regulated by a Wisconsin Pollutant Discharge Elimination System (WPDES) permit. Many of the provisions of the proposed rule revision are already implemented by the department when setting water quality based limits as required by EPA under federal law.
DNR's System for Wastewater Applications, Monitoring and Permits (SWAMP) was used to compile existing WPDES permit holders with non-contact cooling water discharge outfalls. These data were used to determine which facilities may have impact from this rule.
The proposed revisions to ch. NR 106.06, Wis. Adm. Code contain provisions relating to discharges within the Great Lakes system and outside the Great Lakes system. The proposed rule contains different standards for determining permit limits for certain discharges outside the Great Lakes system, to allow permittees outside the Great Lakes system greater flexibility than is required by federal law for dischargers within the Great Lakes system. The department sought cost estimates for dechlorination from a number of consutlants. Cost estimates range widely for meeting provisions of s. NR 106.06 (10), Wis. Adm. Code because of site specific conditions of industrial facilities. This rule does not specify monitoring frequency or compliance schedule timelines to allow for case by case assessment to ensure adequate environmental protection and reasonable reporting requirements. 10. Effect on small business:
The department is currently required to use the procedures in the federal law when developing water quality based effluent limits. The proposed rules are consistent with and no more restrictive than federal law. As a result, many of the facilities impacted by these proposed rule changes have already had permits reissued in compliance with the proposed rules. While some small businesses with noncontact cooling water outfalls or certain substances present in their intake water may have economic impacts from changes required to meet WPDES permit limits, these impacts will be no greater than those that would be required to comply with the federal law.
11. A copy of any comments and opinion prepared by the Board of Veterans Affairs under s. 45.03 (2m), Stats., for rules proposed by the Department of Veterans Affairs: Not Applicable.
12. Agency contact:
Jennifer Jerich
Wisconsin Department of Natural Resources
Bureau of Water Quality
N7725 Highway 28
Horicon, Wi 53032-9782
Phone: (920) 387-7886
Fax: (920) 387-7888
13. Public Hearing and comments:
The department received comments from the Wisconsin Legislative Council Rules Clearing House on December 4, 2015. The department public noticed the proposed rules on November 10, 2015 and held a public hearing on December 7, 2015. The public comment period ended on December 18, 2015. The department received written comments from EPA and Wisconsin Manufacturers & Commerce (WMC) on December 18, 2015. The department also received additional comments from EPA on December 23, 2015.
Wisconsin Manufacturers & Commerce (WMC) provided written comments regarding the statutory requirements of the promulgation of administrative rules. WMC expressed concern over the original scope statement and compliance with s. 227.135 (4), State Stats., and compliance with s. 227.14 (2) (a) (4) requiring the department complete an analysis in the Economic Impact Analysis of state regulations is Illinois, Iowa, Michigan and Minnesota. The department has reviewed the scope statement for WT-31-10 and believes the proposed rule changes fall within the scope identified in 2010 when the scope statement was approved. The department provided additional documentation of state regulations in Illinois, Iowa, Michigan and Minnesota in the Responses to Comments on Rule Package 3. The provisions of this proposed rule align Wisconsin’s WPDES regulations with federal regulations. EPA provided written comments seeking clarification on the rule repealing specific sampling requirements before a determination of reasonable potential can be made for mercury and on compliance with TMDL implementation language in 40 CFR 132. EPA provided additional comments seeking clarification on provisions in ss. NR 106.06 (2) and 106.06 (6), Wis. Adm. Code. Rule package 3 repeals the minimum data set requirement for determination of reasonable potential in Section 9. Rule package 3 mentions TMDL as a portion of the procedures in ch. NR 106.06 (6), Wis. Adm. Code but does not include TMDL implementation procedures. TMDL implementation procedures are found in Rule package 4. The changes in Rule package 4 seek to address key implementation concerns as well as EPA’s disapproval of the TMDL program within the Great Lakes Basin. The department modified Section 4 of the proposed rule, repealing and recreating s.106.06 (6), Wis. Adm. Code, in response to EPA’s comments regarding effluent limitations based on elevated background concentrations outside the Great Lakes basin. In addition, the department modified the definition of expanded discharge to provide additional clarity. EPA provided written confirmation that the changes made address the concerns and EPA is in agreement that the proposed language is consistent with federal law. The Wisconsin Legislative Council Rules Clearinghouse provided comments on the rule package including style, rule referencing or language clarity. The majority of these comments were to address form, style or grammar. The department made the suggested changes with some exceptions. A complete summary of these exceptions is in the Response to Comments on Rule Package 3 document.
(See PDF for image)SECTION 1. NR 106.03 (4g), (4r), and (11m) are created to read:
NR 106.03 (4g) “Great Lakes” means the open Wisconsin waters of Lake Superior, Lake Michigan, Green Bay and Chequamegon Bay, as well as adjoining open waters that exhibit characteristics of Lake Superior, Lake Michigan, Green Bay and Chequamegon Bay, or in other ways are determined by the department to be equivalent to these waters.
(4r) “Great Lakes system” means all the surface waters within the drainage basin of the Great Lakes.
(11m) “Same waterbody” means hydrologically connected waters of the State with similar water quality characteristics in which a pollutant can travel between in a reasonable period of time without significantly changing chemically or physically. Hydrological connections can include surface and groundwater connections.
SECTION 2. NR 106.06 (2) (a) and (b) and (Note) are repealed.
SECTION 3. NR 106.06 (2) (am) and (Note), (bg), and (br) are created to read:
NR 106.06 (2) (am) In this subsection, the following definitions apply:
1. “New discharge” means any discharge from a point source that first received WPDES permit coverage from the department after November 6, 2000. “New discharge” does not include a discharge from a publicly owned treatment works if the discharge from the treatment works is caused by a project that is correcting or preventing a public health problem.
2. “Existing discharge” means any discharge from a point source that currently has a WPDES permit and that has continually had WPDES permit coverage since November 6, 2000 or earlier. “Existing discharge” includes a discharge from a publicly owned treatment works that becomes permitted after November 6, 2000 if the discharge from the treatment works is caused by a project that is correcting or preventing a public health problem.
3. “Expanded portion of an existing discharge” means any increase in concentration, level, or loading of a BCC, which would exceed a limitation specified in a current WPDES permit, or which according to the procedures in s. NR 106.05, would result in the establishment of a new limitation in a reissued or modified WPDES permit. “Expanded portion of an existing discharge” does not include an expanded discharge from a publicly owned treatment works if the expanded discharge from the treatment works is caused by a project that is correcting or preventing a public health problem. Note: An example of a project that is preventing or correcting a public health problem is a situation where a community with failing septic systems connects to a POTW, as defined in s. 106.59, to avert a potential public health threat from the failing systems. (bg) Notwithstanding any other provisions in chs. NR 102 and 106, mixing zones may not be used for effluent limitations for new discharges of BCCs or for the expanded portion of an existing discharge of BCCs into the Great Lakes system. Effluent limitations for new discharges of BCCs and for expanded portions of existing discharges shall equal the most stringent applicable water quality criterion or secondary value for the BCC. Effluent limitations for an expanded portion of an existing discharge of BCCs shall be determined by means of a mass balance where the limitation for the existing portion of a permitted discharge that meets the provisions of par. (br) 1. or 2. shall be determined using the requirements of sub. (4) and the limitation for any expanded portion of the discharge may not exceed the most stringent criterion or value for that BCC. (br) Effluent limitations for existing discharges of BCCs into the Great Lakes system may not include a mixing zone or exceed the most stringent applicable water quality criteria or secondary values for BCCs, except as provided under subd. 1. or 2.
1. Water conservation. A mixing zone may be granted and an effluent limitation may exceed the most stringent water quality criterion or secondary value for a discharged BCC if the permittee demonstrates in the permit application that failure to grant a mixing zone for the BCC would preclude water conservation measures that would lead to an overall load reduction of the BCC, even though a higher concentration of the BCC occurs in the effluent.
2. Technical and economic considerations. A mixing zone may be granted and an effluent limitation may exceed the most stringent water quality criterion or secondary value for the discharged BCC, if the permittee demonstrates and the department concurs that all the following conditions are met:
a. For the BCC discharged, the permittee is in compliance with and will continue to comply with the WPDES permit requirements and this chapter.
b. The permittee has reduced and will continue to reduce loadings of the BCC for which a mixing zone is requested to the maximum extent possible, such that any additional controls or pollution prevention measures to reduce or ultimately eliminate the BCC discharged would result in unreasonable economic effects on the discharger or the affected community because the controls or measures are not feasible or cost-effective.
3. Approval Requirements. If the department approves a mixing zone for a BCC under this paragraph, the following requirements shall be met:
a. The approved mixing zone is no larger than necessary to account for the technical constraints and economic effects identified under subd. 2.
b. All water quality criteria or secondary values for the BCC shall be met at the edge of an approved mixing zone or be consistent with the applicable U.S. environmental protection agency (EPA) approved total maximum daily load (TMDL).
c. The permit shall contain a numeric effluent limitation for the BCC, determined using the requirements of sub. (4) and the limit shall not be less stringent than the limit that was effective on November 6, 2000.
