Chapter NR 106

NR 106.98(2)(d) (d) For a primary or secondary industrial discharger, if the department determines that the permittee’s effluent may contain PFOS or PFOA, the department shall require that the permittee sample its effluent at least monthly.

NR 106.98(2)(e) (e) The department may require PFOS or PFOA monitoring for other discharges not included in one of the categories specified under pars. (a) to (d) if the department has a reasonable expectation that the discharge contains PFOS or PFOA at levels that will likely cause or contribute to an exceedance of the criteria under s. NR 102.04 (8) (d) 1.

NR 106.98 Note Note: The department has authority to sample the effluent from permitted facilities under s. 283.55, Stats.

NR 106.98 Note Note: The department has authority under s. NR 205.066 (1) to specify monitoring frequency for PFOS and PFOA in WPDES permits at its discretion on a case-by-case basis after 24 months.

NR 106.98(3) (3) Reduced sample frequency and waiver.

NR 106.98(3)(a) (a) The department may reduce monitoring frequency to once every 3 months for dischargers described under sub. (2) (a), (b) or (d) on a case-by-case basis, but only after at least 12 representative results have been generated.

NR 106.98(3)(b) (b) The department may waive the requirement to conduct PFOS or PFOA sampling for a discharger under sub. (2) if the department determines that it is unlikely that the permittee’s effluent will contain PFOS or PFOA at levels above the criteria in s. NR 102.04 (8) (d) 1. Any approved waivers shall be reviewed at each permit reissuance to determine whether any changes were made at the permitted facility or when the department becomes aware of new information that may result in new or increased discharges of PFOS or PFOA, in which case monitoring may be required.

NR 106.98(4) (4) Determination of the need for a PFOS and PFOA minimization plan. The department shall require creation and implementation of a PFOS and PFOA minimization plan that meets the requirements under s. NR 106.99 as a condition of a WPDES permit whenever the department determines that the discharge from the permitted facility contains PFOS or PFOA at concentrations that have reasonable potential to cause or contribute to an exceedance of the PFOS or PFOA standard in s. NR 102.04 (8) (d) 1. When determining whether a permitted discharge has the reasonable potential to cause or contribute to an exceedance of the PFOS or PFOA standard in s. NR 102.04 (8) (d) 1., the department shall use the methods in this subsection to make the determination and shall use representative data that meet the sampling and analysis requirements under ch. NR 219 and s. NR 106.995. When making a reasonable potential determination for a permitted discharge of PFOS or PFOA under this subsection, the department shall consider whether the intake provisions in s. NR 106.06 (6) (b) apply to the discharge. When calculating a water quality based effluent limitation for PFOS in the reasonable potential determination, the department shall apply the requirements in s. NR 106.06 (1) and (6) in the calculation and shall use the applicable PFOS criterion in s. NR 102.04 (8) (d) 1. A mixing zone under s. NR 106.06 (2) may not be included in the limit calculation for a discharge of PFOS. When calculating a water quality based effluent limitation for PFOA in the reasonable potential determination, the department shall apply the requirements in s. NR 106.06 (1) and (4) to (11) in the calculation and shall use the applicable PFOA criterion in s. NR 102.04 (8) (d) 1. If any one of the following methods indicate that there is reasonable potential for an exceedance of either the PFOS or PFOA standard, a PFOS and PFOA minimization plan shall be required in the permit:

NR 106.98(4)(a) (a) If at least 11 daily discharge concentrations of the substance are greater than the limit of detection, a PFOS and PFOA minimization plan is required for a permitted facility if the upper 99th percentile of the 30-day average discharge concentrations for PFOS or PFOA exceeds the applicable water quality based effluent limitation calculated under this subsection. To calculate upper 99th percentile values of the daily discharge concentrations, one of the following shall be used:

NR 106.98(4)(a)1. 1. If a log normal probability distribution is determined to be appropriate, the upper 99th percentile of the 30-day average discharge concentrations may be calculated using the equation under s. NR 106.05 (5) (a).

NR 106.98(4)(a)2. 2. If a probability distribution other than log normal is determined to be more appropriate and alternate methods are available, those methods may be used to calculate the upper 99th percentile.

NR 106.98(4)(b) (b) If fewer than 11 daily discharge concentrations of the substance are greater than the limit of detection, a PFOS and PFOA minimization plan is required for a permitted facility if the arithmetic average discharge concentration exceeds one-fifth of the applicable water quality based effluent limitation calculated under this subsection. The arithmetic average discharge concentration shall be calculated using all available representative discharge data, applying the following principles:

NR 106.98(4)(b)1. 1. If, in the judgment of the department, the analytical methods used to test for the substance represent acceptable methods, all values reported as less than the limit of detection shall be set equal to zero for calculation of the average concentration.

NR 106.98(4)(b)2. 2. If, in the judgment of the department, the analytical methods used to test for the substance do not represent the best acceptable methods, all values reported as less than the limit of detection shall be discarded from the data.

NR 106.98 History History: CR 21-083: cr. Register July 2022 No. 799, eff. 8-1-22.

NR 106.985 NR 106.985 PFOS and PFOA minimization plans, permit implementation procedures schedule.

NR 106.985(1) (1) General. If the department determines a permittee has reasonable potential to cause or contribute to an exceedance of the PFOS or PFOA standard in s. NR 102.04 (8) (d) 1. based on the reasonable potential procedures and data collected under s. NR 106.98, the department shall notify the permittee in writing that a PFOS and PFOA minimization plan that satisfies the requirements in s. NR 106.99 is required.

NR 106.985 Note Note: The department intends to make the reasonable potential determination during the term of the first reissued permit under s. NR 106.98 (2) as soon as the effluent sampling is completed. If the department determines that a permittee has reasonable potential to cause or contribute to an exceedance of the PFOS or PFOA standard, the department will modify the permit pursuant to the public notice and public participation procedures under ch. 283, Stats., and ch. NR 203 to incorporate the PFOS and PFOA minimization plan and other related terms and conditions, including annual progress reporting requirements and a schedule of compliance to meet applicable water quality based effluent limitations into the permit.

NR 106.985(2) (2) Schedules. The following timeline applies to a permittee that receives written notification that a PFOS and PFOA minimization plan is required under sub. (1):

NR 106.985(2)(a) (a) The permittee shall submit an initial PFOS and PFOA minimization plan that contains applicable goals and actions listed in s. NR 106.99 for department review and approval no later than 90 days after written notification under sub. (1) was sent from the department. The department may approve, conditionally approve, or reject the plan. The department shall provide a written response to the permittee within 120 days of receiving the plan and, if the initial plan is rejected, the response shall explain the reasons for the rejection. The permittee shall submit a revised plan that addresses all deficiencies and concerns within 30 days of department notification.

NR 106.985(2)(b) (b) As soon as possible after department approval of the PFOS and PFOA minimization plan, the department shall modify or revoke and reissue the permit in accordance with the public notice and public participation procedures required under ch. 283, Stats., and ch. NR 203 to include the PFOS and PFOA minimization plan and other related terms and conditions, including annual progress reporting requirements and a schedule of compliance to meet applicable water quality based effluent limitations. After the permit has been modified or revoked and reissued the permittee shall implement actions identified in the approved plan and report annually to the department on the progress of the PFOS and PFOA minimization plan. The annual PFOS and PFOA minimization plan report shall include all of the following:

NR 106.985(2)(b)1. 1. An analysis of trends in total effluent concentrations based on sampling, and for municipal dischargers an analysis of how influent and effluent concentrations vary with time and with significant loading of PFOS and PFOA.

NR 106.985(2)(b)2. 2. A summary of activities that have been implemented during the previous year and description of which, if any, activities from the approved PFOS and PFOA minimization plan were not pursued and why.

NR 106.985(2)(b)3. 3. An assessment of whether each implemented PFOS and PFOA minimization action appears to be effective or ineffective at reducing pollutant discharge concentrations and identification of actions planned for the upcoming year.

NR 106.985(2)(b)4. 4. Identification of barriers that have limited the plan’s effectiveness and adjustments to the plan that will be implemented during the next year to help address these barriers.

NR 106.985(2)(c) (c) A permittee may be allowed up to a maximum period of 85 months from the date the permit was modified or revoked and reissued to include the initial PFOS and PFOA minimization plan to implement PFOS and PFOA source reduction activities. After the initial PFOS and PFOA minimization plan is incorporated into the permit under par. (b), prior to each subsequent permit reissuance within the maximum 85 month period, the department shall evaluate whether levels of PFOS or PFOA in the effluent still have the reasonable potential to cause or contribute to an exceedance of the standard pursuant to s. NR 106.98 (4). If the department determines that levels of PFOS or PFOA in the effluent no longer have the reasonable potential to cause or contribute to an exceedance of the standard, the department may remove future PFOS and PFOA minimization plan requirements and future scheduled actions. However, the department shall include terms and conditions in the permit in accordance with the requirements in sub. (3). If the department determines that levels of PFOS or PFOA in the effluent still have the reasonable potential to cause or contribute to an exceedance of the PFOS or PFOA standard and there are feasible effective PFOS or PFOA source reduction activities that the permittee can still implement, the department may include the PFOS and PFOA minimization plan with source reduction activities in the reissued permit as a condition of the schedule. The department may require submittal of an updated PFOS and PFOA minimization plan as part of the reissuance application, or the permittee may choose to submit a revised PFOS and PFOA minimization plan. All revised PFOS and PFOA minimization plans are subject to department review and approval. If, however, the department or the permittee determine that there are no more feasible effective PFOS or PFOA source reduction activities that a permittee can implement, then the source reduction activities have been completed and par. (d) applies.

NR 106.985(2)(d) (d) After the actions in pars. (a) to (c) have been completed, all of the following requirements apply:

NR 106.985(2)(d)1. 1. For PFOS, after a permittee has completed all feasible PFOS source reduction activities within the maximum allowable period of 85 months, if the department determines levels of PFOS in the permitted discharge still have the reasonable potential, as determined using the procedures in s. NR 106.98 (4), to cause or contribute to an exceedance of the PFOS standard in s. NR 102.04 (8) (d) 1., the permittee shall be required to achieve compliance with a water quality-based effluent limitation that is calculated using the procedure in s. NR 106.98 (4). The limit shall be expressed as a monthly average and in accordance with the requirements in s. NR 106.07 unless impracticable.

NR 106.985(2)(d)2. 2. For PFOA, after a permittee has completed all feasible PFOA source reduction activities within the maximum allowable period of 85 months, if the department determines levels of PFOA in the discharge still have the reasonable potential, as determined under the procedures in s. NR 106.98 (4), to cause or contribute to an exceedance of the PFOA standard in s. NR 102.04 (8) (d) 1., a water quality-based effluent limitation for PFOA shall be included in the permit. The limitation shall be calculated using the calculation procedures in s. NR 106.98 (4). The PFOA limitation shall be expressed as a monthly average and in accordance with the requirements in s. NR 106.07 unless impracticable.

NR 106.985(2)(d)3. 3. The department may provide additional time in the compliance schedule consistent with the requirements under s. NR 106.117 to achieve compliance with the water quality-based effluent limitations as soon as reasonably possible.

NR 106.985(2)(d)4. 4. The department shall require continued monitoring of PFOS and PFOA with the water quality-based effluent limitation at a frequency specified in the permit and may require continued monitoring in the permit even if a water quality-based effluent limit for PFOS or PFOA is not required in the permit under this subsection.

NR 106.985(3) (3) Maintenance of PFOS and PFOA effluent quality. If implementation of the PFOS and PFOA minimization plan reduces or eliminates the discharge of PFOS and PFOA to a level where the permitted discharge no longer has the reasonable potential to cause or contribute to an exceedance of the PFOS or PFOA standards under s. NR 102.04 (8) (d) 1., the permittee shall maintain effluent quality below the standards. The department may require continued monitoring of PFOS and PFOA and may include requirements in a permit to ensure maintenance of effluent quality.

NR 106.985 History History: CR 21-083: cr. Register July 2022 No. 799, eff. 8-1-22.

NR 106.99 NR 106.99 PFOS and PFOA minimization plans.

NR 106.99(1) (1) General. A PFOS and PFOA minimization plan shall include similar types of goals and actions that are required for pollutant minimization programs under s. NR 106.04 (5). The plan shall be implemented in a manner that reduces PFOS and PFOA concentrations to the maximum extent practicable and shall include all of the following:

NR 106.99(1)(a) (a) Identification of specific PFOS and PFOA source reduction activities to be undertaken and a relative timeline to implement those activities.

NR 106.99(1)(b) (b) A list of PFOS and PFOA source reduction activities that have been implemented prior to submission of the plan, if any, and a description of how effective those activities were in reducing potential and actual PFOS or PFOA discharges, concentrations, or sources.

NR 106.99(1)(c) (c) An explanation of how implementation of the PFOS and PFOA minimization plan will be documented, including measures such as the number of contacts of various types made, programs implemented, and other activities.

NR 106.99(1)(d) (d) Steps to measure the effectiveness of the PFOS and PFOA minimization plan elements in reducing potential and actual PFOS and PFOA discharges. Where the permittee regularly monitors influent, effluent, sludge, or biosolids for PFOS and PFOA, measures shall include any changes in PFOS and PFOA concentrations over comparable historic data. When practicable, other measures or estimates of PFOS and PFOA reductions from programs such as PFOS and PFOA recycling, collection, or safe disposal may also be included.

NR 106.99(2) (2) Municipal discharger plans. In addition to the actions under sub. (1), for permitted municipal dischargers, a PFOS and PFOA minimization plan shall consist of all of the following elements:

NR 106.99(2)(a) (a) Source identification. The permittee shall establish an inventory of treatment system users to identify dischargers to the municipal treatment system that may be significant sources of PFOS or PFOA.

NR 106.99 Note Note: The following types of users are examples of users that have the potential to be significant sources of PFOS or PFOA: (a) Metal finishers that are using, or have used, PFAS-containing wetting agents, demisters, defoamers, or surfactants in their plating tanks; (b) Landfills that have accepted waste from metal finishers using hexavalent chromium or other industries associated with PFAS use, including tanneries, fabric or leather treaters, or paper manufacturers; (c) Contaminated sites discharging wastewater potentially containing PFAS, including those associated with firefighting foam, certain metal finishing wastes, or water- or stain-repellent treatment chemicals, (d) Centralized waste treatment facilities that accept any of the above wastewaters; and (e) Any other industrial users that use or have used PFAS products or raw materials.

NR 106.99(2)(b) (b) Source monitoring. Once sources have been identified under par. (a), the permittee shall develop a monitoring plan to sample all probable sources of PFOS and PFOA, the sampling protocol that will be followed, and the timeline for completion. The monitoring plan shall include a schedule to conduct all sampling of identified probable sources of PFOS and PFOA within the first 24 months from the date the permit was modified or revoked and reissued to include the initial PFOS and PFOA minimization plan. Any plan developed for collecting PFOS and PFOA samples from the permittee’s sewer system users may be independently implemented by the permittee, jointly by the permittee and others, or by another governmental unit.

NR 106.99(2)(c) (c) Perform source monitoring. The permittee shall provide sample results from each probable source identified in the monitoring plan for PFOS and PFOA, using grab samples, and following recommended sampling protocols to prevent cross-contamination.

NR 106.99 Note Note: Permittees may refer to the Michigan Department of Environmental Quality’s “Wastewater PFAS Sampling Guidance” for recommended sampling protocols and cross-contamination prevention measures. This document may be found through searching the Michigan Department of Environment, Great Lakes, and Energy website.

NR 106.99(2)(d) (d) Actions to reduce or eliminate PFOS and PFOA in permitted discharges. The plan shall identify PFOS and PFOA source reduction activities and measures to eliminate, reduce, or control sources to the maximum extent practicable.

NR 106.99 Note Note: An example of an action to eliminate, reduce, or control PFAS in permitted discharges is to update sewer use ordinances.

NR 106.99(2)(e) (e) Education and outreach. The plan shall include activities to educate the general public, industrial and commercial sewer system users, or other professionals about the ways to reduce the use of PFAS-containing products, proper disposal of PFAS-containing products, and other mitigation efforts.

NR 106.99(2)(f) (f) Other activities. The plan may include activities that the department, in consultation with the permittee, determines to be appropriate for the individual permittee’s circumstances.

NR 106.99(3) (3) Primary and secondary industry plans. In addition to the provisions under s. NR 106.99 (1), for primary and secondary industries, a PFOS and PFOA minimization plan shall consist of an evaluation of all of the following elements:

NR 106.99(3)(a) (a) Source identification and inventory.

NR 106.99(3)(b) (b) Improvement of operational controls or maintenance.

NR 106.99(3)(c) (c) Substitution of raw materials or chemical additives with low or zero PFOS, PFOA, and PFOS and PFOA precursor alternatives.

NR 106.99(3)(d) (d) Institution of alternative processes.

NR 106.99(3)(e) (e) Clean-up of historical contamination.

NR 106.99(3)(f) (f) Other activities that the department, in consultation with the permittee, determines to be appropriate for the individual permittee’s circumstances.

NR 106.99(4) (4) Reviewing and approving a PFOS and PFOA minimization plan. In reviewing the appropriate elements for a PFOS and PFOA minimization plan for municipal dischargers or primary and secondary industrial dischargers, the department shall consider all of the following:

NR 106.99(4)(a) (a) The type and size of discharger.

NR 106.99(4)(b) (b) The operations that generate the wastewater.

NR 106.99(4)(c) (c) The concentrations of PFOS and PFOA in the effluent, influent, and biosolids or sludge, if applicable and available.

NR 106.99(4)(d) (d) The costs of potential PFOS and PFOA minimization plan elements.

NR 106.99(4)(e) (e) The environmental costs and benefits of the PFOS and PFOA minimization plan elements.

NR 106.99(4)(f) (f) The characteristics of the community in which the discharger is located, if applicable.

NR 106.99(4)(g) (g) The opportunities for material or product substitution.

NR 106.99(4)(h) (h) The opportunities available for support from or cooperation with other organizations.

NR 106.99(4)(i) (i) The actions the discharger has taken in the past to reduce PFOS or PFOA use or discharges.

NR 106.99(4)(j) (j) Any other relevant information.

NR 106.99(5) (5) Revisions to plans. Any revision to previously approved plans requires department approval.

NR 106.99 History History: CR 21-083: cr. Register July 2022 No. 799, eff. 8-1-22.

NR 106.995 NR 106.995 Sampling and laboratory analysis requirements.

NR 106.995(1) (1) The permittee shall collect samples in accordance with the requirements in the permit. The department may require either grab or composite samples as a permit condition. If the permittee uses a composite sampler, an equipment blank is required.

NR 106.995 Note Note: If the permittee uses a composite sampler, it is recommended the permittee contact their department compliance representative prior to sample collection for additional sampling information.

NR 106.995(2) (2) The laboratory performing the analyses on any samples shall be certified for the applicable PFAS compounds in the aqueous matrix by the Wisconsin Laboratory Certification Program established under s. 299.11, Stats., in accordance with s. NR 149.41.

NR 106.995 Note Note: If the EPA Office of Water publishes a 1600 series isotope dilution method for the analysis of PFAS in wastewater, the department recommends use of the EPA method.

NR 106.995(3) (3) The department may reject any sample results if results are produced by a laboratory that is not in compliance with certification requirements under ch. NR 149.

NR 106.995 History History: CR 21-083: cr. Register July 2022 No. 799, eff. 8-1-22.

NR 106.996 NR 106.996 New dischargers or new sources. If the department determines that a new source or new discharger may have the reasonable potential to cause or contribute to an exceedance of the PFOS or PFOA standard under s. NR 102.04 (8) (d) 1., the permittee shall install pollution control measures to achieve the standard prior to discharge, and water quality-based effluent limitations for PFOS or PFOA or both that are calculated using the procedure in ss. NR 106.07 (2) and 106.98 (4) and ch. NR 207 shall be included in the permit.

NR 106.996 History History: CR 21-083: cr. Register July 2022 No. 799, eff. 8-1-22; correction made under s. 35.17, Stats., Register July 2022 No. 799.