The proposed rule offers the option to apply for a fundamentally different factors variance (FDFV) to all* industrial categories of dischargers and other technology based variances. Federal law allows a facility to apply for a FDFV based on certain requirements (see 33 USC 1311(n) and 40 CFR 125 subpart D). The FDFV requirements in 40 CFR 125, subpart D are applicable to state programs (40 CFR 123.25(36)). Wisconsin Adm. Code currently offers this variance option to 25 out of 46 industrial categories identified in ch. NR 220. The proposed rule allows more industrial dischargers flexibility when effluent limitation guidelines (ELGs) apply to their industrial category as a whole but the given discharger’s facilities, equipment or other factors related to the discharger are fundamentally different from the factors considered by the department or by EPA in developing the ELGs.. * Except that this does not apply to the BPT for steam electric power generation.
WET Exemption (Issue 11):
Federal rules at 40 CFR 122.44(d) and 40 CFR 123.25(15) pertain to the establishment of effluent limitations based on water quality standards. The federal code (40 CFR 122.44(d)(1)(v)) states that limits on whole effluent toxicity (WET) are not necessary where chemical-specific limits are sufficient to attain and maintain applicable water quality standards. Wisconsin Adm. Code s. NR 106.08 contains requirements for whole effluent toxicity (WET) testing. Consistent with federal law, the proposed rule eliminates the requirement for WET limitations where chemical-specific limits for the effluent are sufficient to attain and maintain applicable water quality standards. 6. Summary and comparison with existing and proposed federal regulations:
Following the revisions contained in this rule package, the department rules will be consistent with existing federal regulations:
40 CFR 122.44 (d, k, and l) - Permit limitation requirements, including reasonable potential requirements, compliance with federal ELGs, and antibacksliding; 40 CFR 132, Appendix F, Procedure 9 – Great Lakes Compliance Schedules; Clean Water Act sections 303 (d) (4) and 402 (o) - Antibacksliding.
7. Comparison of similar rules in adjacent states:
All the other EPA Region 5 states (Illinois, Indiana, Michigan, Minnesota and Ohio) are subject to the EPA regulations that apply to the NPDES permit program and 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 those in 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:
Impacts to small businesses, if any, are expected to be the same as impacts to other businesses. Since most of the revisions are consistent with existing department practices, department staff do not expect significant impacts. This rule package simply incorporates federal requirements into state rules, none of which provide special exceptions for small businesses. The federal regulations do not grant the department authority to promulgate less stringent requirements based on a facility’s ability to pay or handle reporting burdens, except that in some cases businesses may quality for economic variances. Economic variances to water quality standards are allowed in Wis. Stats. ss. 283.15 and 283.16. 10. Effect on small business:
The rule may have minor economic impacts on small businesses in isolated cases, but no broad, significant impacts are expected. Economic impacts are not expected because the department is already required under state statutes to include conditions in permits that are consistent with federal regulations and therefore most of the revisions are consistent with existing department practices. The impacts to small businesses, if any, are expected to be the same as impacts to other businesses. The proposed rules did not provide less stringent requirements for small businesses because federal regulations do not allow exceptions for small businesses. The rule will primarily impact WPDES permittees, including publically owned treatment plants (municipalities) and industrial wastewater dischargers such as power plants, pulp and paper mills, cheesemakers, food processors, and others. In some isolated cases, it is possible the rule changes may inhibit the ability of permittees to receive relaxed limits, but the department already has antidegradation procedures in place which also include restrictions on relaxing limitations that may lower water quality. It also may allow industrial dischargers to receive alternative (more or less stringent) technology based limits due to factors that make the individual discharger fundamentally different from the industrial category to which it belongs by definition. All dischargers whose permits include new limitations will be subject to updated compliance schedule regulations, as well. The department does not anticipate an increase in monitoring, reporting or compliance costs. In most cases, changes in this rule package simply codify existing practices. See the EIA for further discussion of impacts and benefits.
11. Agency contact:
Jason Knutson
Wisconsin Department of Natural Resources
Bureau of Water Quality WY/3
101 South Webster Street
P.O. Box 7921
Madison, WI 53707-7921
SECTION 1. NR 106.08 (6) (e) and (f) are created to read:
NR 106.08 (6) (e) Exception. WET limits are not necessary under this subsection when the department determines chemical-specific limits for the effluent are sufficient to attain and maintain applicable numeric and narrative water quality standards, taking into consideration all of the following: 1. Existing controls on the discharge.
2. Controls on the pollutant discharged by nonpoint source pollution in the watershed.
3. The variability of the pollutant or parameter in the effluent discharged.
4. Sensitivity of species to toxicity testing when evaluating whole effluent toxicity as defined in s. NR 106.03. 5. Dilution of the effluent in the receiving water.
(f) Fact sheet. If the department determines WET limitations are not necessary under par. (e), all of the factors that are required for the determination must be specifically discussed in the fact sheet for the permit.
SECTION 2. NR 106.117 is repealed and recreated to read:
3.
“Recommencing discharger” means a permitted source that recommences discharge after terminating its operations.(b) The first permit issued by the department to a new source or a new discharger shall contain a schedule of compliance only when necessary to allow a reasonable opportunity to attain compliance with state or federal limitations promulgated after commencement of construction but less than 3 years before commencement of the discharge.
Note: The department recognizes pollution control equipment start-up problems may arise at the commencement of a new discharge. Enforcement discretion may be used in the 90 days following commencement of discharge, in such cases.
(c) For recommencing dischargers, a schedule of compliance shall be included in the permit only when necessary to allow a reasonable opportunity to attain compliance with limitations promulgated less than 3 years before recommencement of the discharge.
(2) SCHEDULES FOR REISSUED OR MODIFIED PERMITS. A reissued or modified permit may, when appropriate, include a schedule for compliance with new or more stringent effluent limitations that are established by this chapter.
(3) SCHEDULE REQUIREMENTS. A schedule of compliance included in a permit shall meet all of the following conditions:
(a) Time for compliance. Any schedules of compliance under this section shall require compliance as soon as possible but may not extend beyond any applicable federal or state statutory deadlines. The schedule also may not extend beyond 5 years from the date that the permit is reissued or modified to include the new or more stringent effluent limitation, except as provided in par. (b) or as provided in other chapters.
(b) Great Lakes dischargers. For an existing discharger to the Great Lakes system with a permit that was originally issued before March 23, 1997, if the effluent limitation is based on a secondary value under s. NR 105.03(25), the permit shall require compliance with the secondary value based limitation within a reasonable period of time, no later than 5 years after permit reissuance or modification to include the limitation. The compliance schedule may allow the permittee additional time to conduct studies for the purpose of revising the secondary value or to develop a criterion if requested by the permittee in accordance with s. NR 106.07 (8). The time period allowed for such studies may not exceed 2 years. In cases where the permittee wishes to conduct a study on the secondary value, the permit also shall contain a reopener clause, requiring a permit modification if the department determines the specified studies demonstrate that a revised limitation is appropriate. Any revised limitation shall be incorporated through a permit modification and a reasonable time period, up to 5 years, may be allowed for compliance, but in no case may the compliance schedule for the revised limitation extend beyond 7 years from the date the secondary value based limitation was initially included in the permit. (c) Interim dates. If a permit establishes a schedule of compliance that exceeds one year from the date of permit reissuance or modification, the schedule shall set forth interim requirements and the dates for their achievement as follows:
1. The time between dates for the achievement of interim requirements shall not exceed one year, except in the case of a schedule for compliance with standards for sewage sludge use and disposal, the time between dates for the achievement of interim requirements shall not exceed 6 months.
2. If the time necessary for completion of any interim requirement is more than one year and is not readily divisible into stages for completion, the permit shall specify dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.
(d) Pollution and waste minimization measures. The schedule of compliance may require the permittee to evaluate pollution and waste minimization measures as a means for complying with the effluent limitation.
(e) Extension beyond permit expiration. If a permit is modified to include a limitation, the schedule of compliance may extend beyond the expiration date of the permit if an interim permit limit that is effective upon the permit’s expiration date is included in the permit.
(f) Reporting. No later than 14 days following each interim date and the final date of compliance, the permittee shall notify the department in writing of its compliance or noncompliance with the interim or final requirements or, if par. (c) 2. is applicable, submit progress reports.
Note: An interim permit requirement is not necessarily a numerical effluent limitation.
Note: Compliance schedule provisions for TMDL-based limits, technology-based limits, and phosphorus limits may differ from the requirements of this section. These provisions can be found in ss. NR 212.75 (5), 205.14, and 217.17, respectively SECTION 3. NR 106.13 is repealed.
SECTION 4. NR 200.065 Table 1 is amended to read:
NR 200.065
Table 1
Minimum monitoring requirements
Wastewater Discharge Type | Number of Monitoring Tests | Pollutants Required to be Monitored |
Major municipal discharge | 1 | Pollutants listed in s. NR 215.03 excluding asbestos, 2−chloroethyl vinyl ether and dioxin; pollutants listed in ch. NR 105, Tables 1 through 9 excluding bis(chloromethyl) ether, dichlorodifluoromethane, dioxin and trichlorofluoromethane; and pollutants listed in ch. NR 102, Table 1 |
| 4 | Copper, ammonia, phosphorus and hardness |
| 1 | Chloride and whole effluent toxicity |
Minor municipal discharge | 4 | Copper, ammonia, phosphorus and hardness |
| 1 | Chloride, arsenic, cadmium, chromium, lead, nickel and zinc |
Primary industry process discharge | 1 | Pollutants listed in s. NR 215.031 excluding asbestos, 2−chloroethyl vinyl ether and dioxin; pollutants listed in ch. NR 1051 , Tables 1 through 9 excluding bis (chloromethyl) ether, dichlorodifluoromethane, dioxin and trichlorofluoromethane; and pollutants listed in ch. NR 1021 , Table 1 |
| 4 | Copper, ammonia, phosphorus and hardness |
| 1 | BOD5 (five−day biochemical oxygen demand), COD (chemical oxygen demand), chloride, total residual chlorine, oil and grease, pH, total suspended solids, temperature (summer and winter), arsenic, cadmium, chromium, lead, mercury, nickel, zinc |
| 1 | Fecal coliform and pollutants listed in s. NR 215.06 excluding TOC (total organic carbon) when the applicant believes the pollutant is present in the discharge for reasons other than its presence in the intake water |
Secondary industry process, cooling water, manufacturing, commercial, mining, or silvicultural discharge or cooling water discharge, or both | 4 | Copper, ammonia, phosphorus and hardness |
| 1 | BOD5 (five−day biochemical oxygen demand), COD (chemical oxygen demand), chloride, total residual chlorine, oil and grease, pH, total suspended solids, temperature (summer and winter), arsenic, cadmium, chromium, lead, mercury, nickel, zinc |
| 1 | Any of the following pollutants that the applicant believes is present in the discharge for reasons other than its presence in the intake water: Pollutants listed in ss. NR 215.03, 215.05 and 215.06 excluding 2−chloroethyl vinyl ether, dioxin, asbestos and TOC (total organic carbon), pollutants listed in ch. NR 105, Tables 1 through 9 excluding bis(chloromethyl) ether, dichlorodifluoromethane, dioxin and trichlorofluoromethane; and pollutants listed in ch. NR 102, Table 1 |
Noncontact cooling water discharge | 1 | Ammonia, BOD5 (five day biochemical oxygen demand), chloride, oil and grease, pH, phosphorus, total suspended solids and temperature (summer and winter) |
| 1 | Any of the following pollutants that the applicant believes is present in the discharge for reasons other than its presence in the intake water: Pollutants listed in ss. NR 215.03, 215.05 and 215.06 excluding 2−chloroethyl vinyl ether, dioxin, asbestos and TOC (total organic carbon); pollutants listed in ch. NR 105, Tables 1 through 9 excluding bis(chloromethyl) ether, dichlorodifluoromethane, dioxin and trichlorofluoromethane; and pollutants listed in ch. NR 102, Table 1 |
