ORDER OF THE STATE OF WISCONSIN
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, adopted by the Natural Resources Board on June 27, 2012 and approved by the Governor on October 30, 2017. 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, Stats., 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, Stats., grants authority to the department to establish monitoring requirements in permits and s. 283.83, Stats., 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 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. Section 283.31, Stats., 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.