NATURAL RESOURCES BOARD
REPEALING, RENUMBERING, AMENDING, REPEALING AND RECREATING, AND CREATING RULES
The statement of scope for this rule, WT-12-12, was approved by the Governor on May 29, 2012, published in Register 678 on June 14, 2012 and approved by the Natural Resources Board on June 27, 2012. The Wisconsin Natural Resources Board proposes an order to: to repeal NR 106.13, 221.05, 225.05, 228.05, 231.05, 236.05, 239.05, 240.05, 245.05, 247.05, 250.05, 258.05, 261.14, 268.05, 269.05, 275.05, 276.05, 277.05, 280.05, 281.05, 284.13, 286.05, 290.13, 294.05, 295.05, and 296.05; to renumber and amend NR 200.21 and 220.12; to amend NR 106.117, 200.065 Table 1, 200.21, 205.01, 205.03(27) and (28), 207 Chapter (title), 207.01, 220 Subchapter III Title, 220.10 and 220.12; repeal and recreate NR 106.117 (1), 220.13 and 220.15; to create NR 106.08 (6) (e) and (f), 200.07(5), 200.21 (2) and (2) (Note), 205.067, 205.10, 205.14, 207 Subchapter I (title), 207 Subchapter II, 210.05 (5), 220.12 (1) and (2), and 220 Subchapter IV; all relating to the WPDES permits, and affecting small businesses. Analysis Prepared by the Department of Natural Resources
1. Statutes interpreted:
2. Statutory authority:
Sections 227.11(2)(a), 283.11, 283.13, 283.15, 283.19, 283.21, 283.31, 283.37, 283.45, 283.53, 283.55 and 283.83 Stats. 3. Explanation of agency authority:
Chapter 283, Stats, grants authority to the department to establish, administer and maintain a Wisconsin Pollutant Discharge Elimination System (WPDES). Sections 283.11 and 283.31, Stats, provide authority to promulgate rules to administer the WPDES permit program consistent with federal requirements and to include terms and conditions in permits consistent with federal regulations. Section 283.13 provides authority to establish technology based effluent limitations in permits as well as more stringent water quality-based effluent limitations to comply with any state or federal law, rule or regulation. Section 283.15, Stats, authorizes variances to water quality based effluent limitations. Sections 283.19 and 283.21, Stats, grant authority to the department to establish new source performance standards and toxic effluent standards. Section 283.37, Stats, provides authority to establish rules for permit applications, and s. 283.45, Stats, provides authority for rules for fact sheets. Section 283.53, Stats, provides authority for permit modifications, revocation and reissuances and terminations.
Section 283.55 grants authority to the department to establish monitoring requirements in permits and s. 283.83 provides authority for a continuing planning process which includes schedules of compliance for limitations. The department also has authority to promulgate rules under s. 227.11 (2) (a), Stats., to administer the specific statutory requirements in ch. 283, Stats. 4. Related statute or rule:
These rules relate directly to the WPDES permit program that regulates wastewater discharges. Related rules include all other rules that comprise the WPDES permit program and include Chapters NR 100 to 106 and 200 to 299, Wis. Adm. Code. 5. Plain language analysis:
The purpose of the proposed rule changes is to ensure that the state’s regulations are consistent with federal regulations. Minor clarifications and corrections will also be made to these chapters.
Since 1974, Wisconsin has been approved by the U.S. Environmental Protection Agency to conduct a National Pollutant Discharge Elimination System permit program under the provisions of the Clean Water Act. State NPDES programs are required to include certain minimum federal requirements. On July 18, 2011, the department received a letter from the EPA identifying 75 issues and potential inconsistencies with Wisconsin’s authority to administer its approved WPDES permit program. There have been several rule packages initiated and adopted to address the 75 issues. This rule package (commonly referred to as Rule Package 5) contains provisions to address the following issues.
New Source Performance Standards and other ELGs (Issue 7):
Federal law requires EPA to promulgate New Source Performance Standards (NSPS) and other Effluent Limitation Guidelines (ELGs). NSPS are technology based ELGs that apply to new sources. Under federal law (40 CFR ss. 123.25(15) and 122.44(a)(1)), state NPDES programs must have the legal authority to include permit conditions meeting the federal NSPS standards and other ELGs. In the July 18, 2011 letter, EPA questioned whether Wisconsin has the authority to include limits in permits based on federal NSPS standards and other ELGs. This issue was addressed through an Attorney General’s statement dated January 19, 2012. This rule package proposes revisions to clarify the authority provided in state statutes as interpreted by the Attorney General’s Office and as required under federal law. Where any ELGs, including NSPS, for a given industrial category of dischargers are promulgated federally but the category of dischargers is not listed in the Wis. Adm. Code, the department must include a limitation based upon the federal ELGs in a WPDES permit issued to a discharger that fits within the applicable category. Similarly, if federal ELGs for a listed industrial category are more stringent than the state’s promulgated ELGs, the state must include limitations based upon the federal ELGs. This proposed rule clarifies this federal requirement.
Reasonable Potential (Issue 11):
Under federal regulations (40 CFR ss. 123.25(15) and 122.44 (d)), a state is required to include a water quality based effluent limitation in a permit for a pollutant in a discharge if there is reasonable potential for the discharge to cause or contribute to an exceedance of a water quality standard. Wis. Stats. s. 283.31 requires that WPDES permits contain water quality based effluent limitations (WQBELs) when necessary to achieve water quality standards. Existing state regulations establish reasonable potential procedures for toxic and organoleptic substances as well as for phosphorus in chs. NR 106 and 217, respectively. The proposed rule package expands these requirements to all pollutants, including whole effluent toxicity (WET), and to narrative standards as required under federal regulations. The proposed rules also delineate processes for determining what constitutes “reasonable potential” to exceed water quality standards and for establishing limits in the absence of state water quality criteria for specific pollutants. Best Management Practices for Permits (Issue 13):
Best management practices (BMPs) are schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of waters of the state. They can include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.
Existing rules contain best management practice requirements for land application activities, storm water runoff, and runoff from Concentrated Animal Feeding Operations (CAFOs). Federal rules (40 CFR 122.44 (k)) identify certain other circumstances when BMPs must be included in permits. The proposed rule contains provisions to conform to federal requirements for when the department must include best management practices (BMPs) in permits to control or abate the discharge of pollutants. The proposed rule states that BMPs will be included when numeric effluent limitations are infeasible or when BMPs are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of the Clean Water Act, consistent with 40 CFR 122.44(k)(3) and (4). Antibacksliding (Issue 14):
Pursuant to 40 CFR 122.44 (l) and the Clean Water Act, 33 USC 1342(o), the water quality based effluent limitations, best professional judgment limitations, and interim limitations, standards, or conditions in any reissued permit must be at least as stringent as those in the previous permit, with some exceptions. These provisions are referred to as “antibacksliding” provisions. Existing state rules contain antidegradation procedures to prevent lowering of water quality in surface waters unless necessary, but existing rules do not specifically contain the antibacksliding requirements in 40 CFR 122.44 (l) and the Clean Water Act 33 USC 1342(o). The proposed rules add provisions to conform to federal requirements. Compliance Schedules (Issues 15 and 29):
Federal rules contain requirements for compliance schedules that are applicable to state programs (see 40 CFR 123.25(18) and 122.47(a)) and Great Lakes states (40 CFR 123.25(38) and 40 CFR Part 132)). Existing state rules contain specific provisions for compliance schedules for toxic and organoleptic substances, ammonia, temperature, and phosphorus. The proposed rule adds a new section for compliance schedule requirements to ch. NR 205, expanding the compliance schedule provisions to all appropriate situations, not just upgrades to meet limits for toxic and organoleptic substances, ammonia, temperature, or phosphorus. The proposed rule also revises the compliance schedule requirements in chapter 106 for consistency with 40 CFR 122.47 and with 40 CFR 132, Appendix F, Procedure 9 for Great Lakes dischargers. The proposed rule also repeals s. NR 106.13, which allows a compliance schedule for POTWs accepting leachate from a solid waste facility. This specific allowance is not present in 40 CFR 122.47. The proposed rule also clarifies that if a permitted facility has an effective water quality based limitation for a pollutant in a permit and the facility is treating the pollutant to comply with the limitation, there is continued reasonable potential to exceed the water quality standard and the limit must remain in a reissued permit.
Expression of Limits in Permits when Permittee Disposes of Pollutants into Wells or Publically Owned Treatment Works or by Land Application (Issue 20):
The federal rule at 40 CFR 122.50 provides for an adjustment to effluent limitations when part of a discharger’s process wastewater is disposed of to a POTW, a well, or to a land application site and the other part is discharged to a surface water. Since state law doesn’t allow injection of wastewater directly into a private or public well, the proposed rules do not include adjustments to limitations for a direct well injection. The proposed rule codifies the department’s current operating procedure for calculating limitations in these circumstances and establishes consistency in state rules with federal regulations.
Definitions of “Point Source” and “Pollutant” (Issue 44):
Federal law (40 CFR 122.2) contains definitions of “point source” and “pollutant.” These definitions apply to the requirements for state programs in 40 CFR 123.25. EPA raised a question about whether state law definitions were consistent with federal law. This issue was addressed through an Attorney General’s Statement dated January 19, 2012. To clarify state rules, the proposed rule adds “landfill leachate collection system” to the definition of “point source” and “filter backwash” to the “definition of “pollutant.” The proposed revisions to the definitions in rules are consistent with the Attorney General’s interpretation of the state statutory definitions provided in the January 19, 2012 Statement. Expedited Variances (Issue 46):
Federal regulations at 40 CFR 122.21 (o) allow permit variance applications to be submitted before a permit is reissued and time extensions for filing variance requests. The federal variance procedures are applicable to state programs. (40 CFR 123.25(4)). The proposed rule allows the department to accept variance applications before a permit is reissued. This is consistent with the federal regulations and is an existing practice for variances to water quality based effluent limitations pursuant to s. 283.15 (2) (a), Wis. Stats. The proposed rules also establish expedited variance request procedure for variances to technology based limitations in chapter NR 220, consistent with 40 CFR 122.21(o) and (m). Application Materials for Categories of Industries and New Sources and New Dischargers (Issue 61):
Section 40 CFR 122.21 contains permit application requirements for specific industrial categories of dischargers. These requirements apply to state programs (40 CFR 123.25(4)). The department has authority in state rules and statutes to require any additional necessary information in a permit application. The proposed rule sets forth specific additional permit application materials required from the following categories of dischargers: existing manufacturing, commercial, mining, and silvicultural dischargers; aquatic animal production facilities; and new sources and new dischargers. This rule revision reflects current department requirements but will add specificity consistent with the federal requirements. The proposed rules also include the application requirements for variances to technology based requirements. Fundamentally Different Factors Variances and other ELG Variances (Issues 7, 46, 61):
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..
