Section 283.37, Wis. Stats., provides authority to establish rules for permit applications. Sections 283.55, and 227.11(2)(a), Wis. Stats., grant authority to the department to establish monitoring requirements in permits. Section 283.83, Wis. 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), Wis. Stats., necessary to administer the specific statutory requirements and effectuate the purpose of ch. 283, Wis. Stats. 4. Related Statutes or Rules:
These rules relate indirectly 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 is to ensure that the state’s regulations are consistent with federal regulations. Minor clarifications and corrections will also be made.
Under the federal water pollution control act (Clean Water Act), the U.S. Environmental Protection Agency (EPA) has a responsibility to promulgate rules addressing the impingement and entrainment of aquatic organisms at cooling water intake structures. Effective January 17, 2002 and October 14, 2014, the EPA promulgated rules that specify requirements for New Facilities and Existing Facilities that address impingement and entrainment at cooling water intake structures. In order to be consistent with the EPA-promulgated New Facilities and Existing Facilities Rules, the Department of Natural Resources (the department) is proposing to create ch. NR 111, Wis. Adm. Code. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
Following the revisions contained in this rule package, the department rules will be consistent with existing federal regulations:
40 CFR 125 Subpart I – Requirements for New Facilities; 40 CFR 125 Subpart J – Requirements for Existing Facilities; 33 U.S.C. § 1326(b), Clean Water Act section 316(b) – Requirements for facilities with cooling water intake structures
7. Comparison with Similar Rules in Adjacent States:
All the other adjacent states including EPA Region 5 states (Illinois, Indiana, Michigan, Minnesota, and Ohio) and EPA Region 7 states (Iowa, Nebraska, Kansas and Missouri) are subject to the EPA regulations that apply to the National Pollutant Discharge Elimination System permit program and that are delegated to the states for implementation, and therefore, have the same requirements as Wisconsin. The proposed rule does add select definitions to clarify implementation of the rule, and such definitions are not in place in neighboring states.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
Not applicable.
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The economic impact analysis was done by creating four categories of compliance with the federal rule, estimating the cost of compliance associated with each category, and then finally estimating the number of facilities in each category. The four categories are: currently in compliance with lower operating costs, currently in compliance with higher operating costs, not in compliance with the 0.5 feet per second (fps) standard and has a lower cost of coming into compliance, and not in in compliance with the 0.5 fps standard and has a higher cost of coming into compliance. The following documents were used to make the economic impact analysis:
- Economic and Benefits Analysis for the Final Section 316(b) Phase II Existing Facilities Rule. EPA-821-R-04-005 (February 2004).
- Technical Development Document for the Final Section 316(b) Phase II Existing Facilities Rule EPA 821-R-04-007 DCN 6-0004 (February 12, 2004).
- “Technical Development Document for the Final Section 316(b) Existing Facilities Rule,” U.S. Environmental Protection Agency EPA-821-R-14-002 (May 2014).
10. Effect on Small Business (initial regulatory flexibility analysis):
The rule will primarily impact power plants and paper mills in Wisconsin and is not expected to affect small businesses. It is expected that no or very few small businesses with an intake structure have intakes with design intake flows that are greater than the minimum threshold and therefore would be subject to the federal rule.
11. Agency Contact Person:
Emma Lorenzen
Wisconsin Department of Natural Resources
Bureau of Water Quality WY/3
101 S. Webster Street
PO Box 7921
Madison, WI 53707-7921
12. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or email to:
Emma Lorenzen
Department of Natural Resources
Bureau of Water Quality WY/3
101 S. Webster Street
PO Box 7921
Madison, WI 53707-7921
(608) 267-7643
The consent of the Attorney General will be requested for the incorporation by reference of 40 CFR 122.2, 122.29(b) (1), (2), (4), ss. NR 40.04 (2) (d), ss. NR 40.05 (2) (d), s. NR 20.38, s. NR 205.07(1)(g) and s. 283.01(12), Stats.
Section 1. NR 111 is created to read:
COOLING WATER INTAKE STRUCTURES
