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.. * 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:
