TMDL Development and Implementation (Issue 10)
The GLI requires specific procedures for developing and implementing TMDLs in the Great Lakes Basin at 40 CFR part 132, Procedure 3 of Appendix F. TMDL procedures are also specified at 40 CFR 130.7. In 2000, EPA disapproved of Wisconsin’s TMDL development program for toxic compounds, and other pollutants regulated in the GLI and discharged into the Great Lakes Basin and consequently promulgated 40 CFR 132.6(h). The proposed rule revision creates a subchapter in NR 212 to address this over promulgation and to conform to the federal requirements in 40 CFR 132.6(h) and 40 CFR 130.7. Compliance Schedules (Issues 31, 32, 37, and 40)
Section 502(17) of the Clean Water Act (CWA), 33 U.S.C. 1362(17), defines a compliance schedule as an “enforceable sequence of actions or operations leading to compliance with an effluent limitation”. 40 CFR 122.47 also establishes requirements for compliance schedules. A demonstration or data collection that is intended to justify a change in an effluent limitation is not an action leading to compliance with a final effluent limitation under the CWA. Therefore, the proposed rule revision recommends changes to the ammonia and chloride compliance schedule procedures to conform to these requirements. 40 CFR Part 132, Appendix F, Procedure 9, does allow time to be added to a compliance schedule for these purposes for dischargers within the Great Lakes basin that have limitations based on secondary criteria. Therefore, revisions are also recommended to the compliance schedule program for secondary values to limit this authority to only discharges in the Great Lakes Basin in conformance with federal law. Other
A variance is a revision to a water quality standard that must be supported on the basis of one of the factors specified in 40 CFR 131.10(g), and requires EPA review and approval before it can be implemented (40 CFR 131.21(c)). This rule revision proposes to clarify EPA’s role in reviewing variances, and also provides clarification on chloride and ammonia variance procedures. 7. Comparison with Similar Rules in Adjacent States:
All the other EPA Region 5 states (Illinois, Indiana, Michigan, Minnesota and Ohio) are subject to the EPA regulations. Iowa and portions of the EPA Region 5 states that do not drain to the Great Lakes are not subject to GLI requirements. Although Wisconsin’s program is consistent with federal law, it is not directly comparable to the Iowa implementation program, as Wisconsin is subject to these additional federal requirements. A brief comparison of key states is provided below on the six key issues addressed in the proposed rule revision.
Calculation of Water Quality-Based Effluent Limitations
All EPA Region 5 states and Iowa appear to use the final acute value (FAV) and mass balanced approach for calculating water quality-based effluent limitations to protect from acute toxicity effects on fish and aquatic life. Iowa, Indiana, and Ohio use a 1Q10 mass balance based approach for calculating these types of water quality-based effluent limitations. Illinois, Michigan, and Minnesota also use a mass balance based approach for calculating these water quality-based effluent limitations but do not specify the specific stream flow data used in this equation in code. After a cursory review of available guidance, it appears that 7Q10 data are used or alternative flow based on best professional judgment. Additionally, none of these states have a 20 mg/L or 40 mg/L cap for ammonia limitations specified in code. It is noted, however, that Michigan does have specific ammonia limitations codified for categories of point source discharges. Therefore, repealing this provision would make Wisconsin’s program consistent with EPA regulations, the other EPA Region 5 states, and Iowa.
Expression and Inclusion of Effluent Limits in WPDES Permits
Michigan, Illinois, Ohio, and Iowa express water quality-based effluent limitations derived from acute toxicity impacts on fish and aquatic life as daily maximum limitations, and water quality-based effluent limitations derived from chronic toxicity as monthly average limitations. Statistical methods are not specified in Ohio or Iowa for converting chronic water quality standards for toxic substances to monthly average permit limitations. Michigan and Illinois, on the other hand, chose to codify portions of EPA’s Technical Support Document to convert chronic water quality standards to monthly average limitations. Human health limitations are solely expressed as monthly average limitations in these states.
These states do not provide a codified methodology for creating additional permit limitations if the triggered water quality-based effluent limitations are not sufficient to meet the requirements of 122.45(d). Minnesota and Indiana’s approach for expression and inclusion of effluent limitations in permits is structured identically to 122.45(d). Minnesota does not provide a methodology in code for calculating these limitations. Indiana, on the other hand, chose to codify EPA’s recommending methodology in the Technical Support Document. The proposed rule revisions closely mirror Indiana’s approach for calculating and expressing permit limits as this approach reflects the requirements of 122.45(d) and EPA guidance. However, the proposed methodology also considers the averaging period used for deriving the toxicity criteria and, therefore, differs slightly from the Indiana approach.
Whole Effluent Toxicity
Indiana, Michigan, and Ohio’s WET reasonable potential procedures were also over promulgated by EPA on September 5, 2000 at 40 CFR 132.6(c). Indiana and Michigan updated their WET reasonable potential procedures to be consistent with the GLI since the over promulgation. Michigan also specifies when chloride or other pollutant limitations can be used in lieu of WET limitations similar to Wisconsin. Other states do not specify this authority in code. It is not clear whether this action has satisfied EPA at this time. Illinois chose to incorporate the requirements of Procedure 5 of Appendix F at 40 CFR 132 by reference. Illinois uses an alternative method for WET data outside of the Great Lakes basin, however. Wisconsin is proposing to apply the same procedure statewide. Iowa does not appear to have specific WET procedures in code. Iowa is not subject to the GLI and is, therefore, not subject to the same federal restrictions as Wisconsin. TMDL Development and Implementation
TMDL develop and implementation procedures vary among the EPA Region 5 states. Minnesota, for example, does not have any procedures in code for specifying TMDL development or implementation at this time. Their current TMDL program relies solely on guidance. Michigan and Indiana have promulgated general principles and procedures for developing and implementing TMDLs that appear to align with the requirements of the GLI. Indiana’s program solely applies to TMDLs within the Great Lakes Basin, and not to discharges outside of the Basin. Indiana does specify general provisions for calculating wasteload allocations in the absence of a TMDL and preliminary wasteload allocations for the entire state, however. Ohio’s program incorporates by reference the requirements of 40 CFR 130.7. Additional specificity is provided in Ohio’s TMDL procedures, but these do not align directly with the requirements for the GLI. The Illinois TMDL program in the Great Lakes Basin is not specific at this time, and was over promulgated by EPA on September 5, 2000 at 40 CFR 132.6(b). Iowa does not appear to have specific TMDL procedures in code. Iowa is not subject to the GLI and is, therefore, not subject to the same federal restrictions as Wisconsin. Compliance Schedules
All EPA Region 5 states and Iowa specify their authority for granting compliance schedules for toxic substances in code, including ammonia and chloride. This authority aligns with the CWA, but these programs have varying specificity provided in code. For example, Michigan and Illinois have specific measures and time frames specified in code for their compliance schedules. They also provide that a “reopener” clause can be included in a NPDES permit to modify the permit pending new data, but these data collection efforts are not authorized as part of the compliance schedule. Additionally Michigan and Illinois allow time extensions for the purposes of data collection in compliance schedule for water quality-based effluent limitations derived secondary values. Illinois does not limit this extension to only Great Lake discharges, however. Indiana and Minnesota’s compliance schedule authority, on the other hand, is more generically stated compared to Michigan and Illinois, and solely defines what a compliance schedule is and what the maximum duration of a compliance schedule may be.
Other
All water quality standard variances must be approved by EPA. Some states including Illinois, Iowa, and Minnesota do not specify this approval authority in code. Other states such as Michigan and Indiana do specify this authority.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
The methodology identified in this rule package is based on Clean Water Act and Great Lake Initiative requirements and on EPA guidance including the Technical Support Document for Water Quality-based Toxics Control (March 1991). PB91-127415.
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
DNR’s System for Wastewater Applications, Monitoring and Permits (SWAMP) was used to compile existing WET data by permittee. These data were then analyzed to determine which of these permittees would trigger a chronic or acute WET limitation based on the revised reasonable potential methodology. Quotes from WET laboratories frequently used by point source discharges in Wisconsin were used to provide a range of costs for WET testing and TRE studies. Shipping quotes were also gathered from frequently used shipping companies, which included overnight and weekend shipping rates. Other costs, such as staff time, are site-specific and difficult to approximate. Therefore, a 5% margin of safety was added to the total costs projected to account for other potential costs.
10. Effect on Small Business (initial regulatory flexibility analysis):
Of the 126 WPDES permit holders that are believed to be economically and fiscally impacted by the proposed rule revision, 43 dischargers are believed to be small businesses. The potentially impacted businesses include food processors, cheese makers, and other small businesses like metal finishing plants and manufacturers. WET laboratories are typically small business and would likely be positively impacted by the revisions. Costs incurred by these small businesses are the result of increased WET monitoring, and toxicity reduction evolution (TRE) studies. It is estimated that small cheese makers may incur a fiscal impact of $83,000-$109,000, the impact to food processors may range from $51,000-$65,500, and other small businesses may incur a cost between $24,000-$35,000. Flexibility has been built into this rule to help minimize these economic impacts. Specifically, the rule package clarifies what WET data should be used to make WET limitation determinations in WPDES permits. Additionally, this rule provides flexibility on monitoring and reporting requirements for WET.
11. Agency Contact Person:
Amanda Minks
Department of Natural Resources
Bureau of Water Quality WQ/3
101 South Webster Street
P.O. Box 7921
Madison, WI 53707-7921
608-264-9223
12. Place where comments are to be submitted and deadline for submission:
Written comments submitted at the public hearing, by regular mail, fax, or email during the public hearing comment period which ended on December 18, 2015. The department received comments from the Wisconsin Legislative Council Rules Clearing House on December 2, 2015. The department completed a response to comments received.
Section 1 NR 106.03 (1) is renumbered NR 106.03 (1r).
Section 2 NR 106.03 (1g), (2m) and (notes), and (5m) are created to read:
NR 106.03 (1g) "AMZ" means acute mixing zone concentration based on presence of a zone of initial dilution under s. NR 106.06 (3) (c). (2m) "Deficiency toxicity" means a condition that exists when adverse effects occur to aquatic organisms because concentrations of common ions are too low.
Note: Changes in the concentration of ions in surrounding waters can cause organisms to expend too much energy trying to regulate the balance of water and dissolved materials in bodily fluids, and may result in death.
Note: Examples of common ions are sodium, calcium, magnesium, potassium, etc.
(5m) "IC50" means the point estimate of the concentration of a toxic substance, wastewater effluent or other aqueous mixture that would cause a 50% reduction in a nonlethal biological measurement, such as reproduction or growth, of the exposed test organisms in a given time period.
Section 3. NR 106.03 (10) and (11) are repealed.
Section 4. NR 106.03 (13) is amended to read:
NR 106.03 (13) "TUa" or "toxic unit acute" means a value that is equal to 100 divided by the LC50 LC50 except as provided in s. NR 106.08 (6) (d). Section 5. NR 106.03 (13m) is created to read:
NR 106.03 (13m) "TUc" or "toxic unit chronic" means a value that is equal to 100 divided by the IC25 or the IC50 except as provided in s. NR 106.08 (6) (d). Section 6. NR 106.03 (14) is amended to read:
NR 106.03 (14) "Whole effluent toxicity" or "WET" means the aggregate toxic effect of an effluent as measured directly by a toxicity test.
Section 7. NR 106.04 (1) (intro.) is amended to read:
NR 106.04 (1) (intro.) General. Water quality based The department shall establish water quality-based effluent limitations shall be established whenever categorical effluent limits required under s. 283.13, Stats., are less stringent than necessary to achieve applicable water quality standards specified in chs. NR 102 to 105. Water quality based quality-based effluent limitations for a point source shall be specified in the permit for that point source. Section 8. NR 106.04 (3m) is created to read:
NR 106.04 (3m) In lieu of imposing limitations at the point of discharge when imposition of limitations at the point source discharge location is impracticable or infeasible, the department may impose water quality-based effluent limitations on an internal waste stream before that waste stream mixes with other waste streams or cooling water streams. Monitoring requirements as specified in s. NR 106.07 (1) shall also be applied to the internal waste streams in these instances. Section 9. NR 106.05 (1) (c) is amended:
NR 106.05 (1) (c) If the department determines that a limitation based on an aquatic life acute or chronic secondary value should be established in a permit according to the provisions in this section, a permittee may request an alternative wet WET limit in accordance with s. NR 106.07 (7). Section 10. NR 106.05 (8) is repealed and recreated to read:
NR 106.05 (8) If representative discharge data are not available for a substance, the department may include water quality-based effluent limitations in a permit if, in the judgment of the department, water quality standards will be exceeded if the discharge of the substance is not limited.
Section 11. NR 106.05 (8) (note) is repealed.
Section 12. NR 106.06 (3) (b) is repealed and recreated to read:
NR 106.06 (3) (b) To assure compliance with par. (a), the department shall calculate the water quality-based effluent limitation for a substance using the following procedures whenever the background concentration of the substance in the receiving water is less than the acute water quality criterion or secondary value: 1. A limitation shall be calculated using the following conservation of mass equation whenever sufficient site-specific data exist:
Limitation =(WQC) (Qs +(1−f)Qe) − (Qs − fQe) (Cs)
