Chapter NR 211

NR 211.13(2)(e)3. 3. This paragraph does not apply if the industrial user can show that overflow does not occur between the industrial user and the POTW treatment plant.

NR 211.13(3) (3) Provisional credits. For pollutants which are not discharged currently (i.e., new or modified facilities, or production changes) the POTW may apply for authorization to give removal credits prior to the initial discharge of the pollutant. Consistent removal for the first 18 months of discharge shall be based on data from treatability studies or demonstrated removal at other treatment facilities where the quality and quantity of influent are similar. Eighteen months after initial discharge of pollutants, consistent removal shall be demonstrated pursuant to the requirements of sub. (2). If the POTW cannot demonstrate consistent removal pursuant to the requirements of sub. (2), the authority to grant provisional removal credits shall be terminated by the department. All industrial users to whom the revised discharge limits had been applied shall achieve compliance with the applicable categorical pretreatment standards within a reasonable time, not to exceed the period of time prescribed in the applicable categorical pretreatment standards, as may be specified by the department.

NR 211.13(4) (4) Terms and conditions for POTW granting and continuing conditional removal credits. A POTW required to develop a local pretreatment program by s. NR 211.20 may give removal credits pending approval of the program under the following terms and conditions:

NR 211.13(4)(a) (a) All industrial users who are currently subject to a categorical pretreatment standard and who apply for a conditional removal credit shall submit to the POTW the information required in s. NR 211.15 (1) (a) to (h). However, new or modified industrial users shall only submit the information required by s. NR 211.15 (1) (a) to (f), pertaining to the categorical pretreatment standard as modified by the removal credit. The industrial users shall indicate what additional technology, if any, will be needed to comply with the categorical pretreatment standard as modified by the removal credit;

NR 211.13(4)(b) (b) The POTW shall have submitted to the department an application for pretreatment program approval meeting the requirements of subch. II of ch. NR 211 in a timely manner, not to exceed the time limitation set forth in a compliance schedule for development of a pretreatment program included in the POTW’s WPDES permit, but in no case later than July 1, 1983, where no permit deadline exists;

NR 211.13(4)(c) (c) The POTW shall:

NR 211.13(4)(c)1. 1. Compile and submit data demonstrating its consistent removal in accordance with sub. (2);

NR 211.13(4)(c)2. 2. Comply with the conditions specified in sub. (1) (b); and

NR 211.13(4)(c)3. 3. Submit a complete application for removal credit authority in accordance with sub. (5);

NR 211.13(4)(d) (d) If a POTW receives authority to grant conditional removal credits and the department subsequently makes a final determination, after appropriate notice, that the POTW failed to comply with the conditions in pars. (b) and (c), the authority to grant conditional removal credits shall be terminated by the department. All industrial users to whom the revised discharge limits had been applied shall achieve compliance with the applicable categorical pretreatment standard within a reasonable time, not to exceed the period of time prescribed in the applicable categorical pretreatment standard, as may be specified by the department.

NR 211.13(4)(e) (e) If a POTW grants conditional removal credits and the POTW or the department subsequently makes a final determination, after appropriate notice, that the industrial user failed to comply with the conditions in par. (a), the conditional credit shall be terminated by the POTW or the department for the non-complying industrial user. The industrial user to whom the revised discharge limits had been applied shall achieve compliance with the applicable categorical pretreatment standard within a reasonable time, not to exceed the period of time prescribed in the applicable categorical pretreatment standard, as may be specified by the department. The conditional credit may not be terminated where a violation of the provisions of this paragraph results from causes entirely outside of the control of the industrial user or the industrial user had demonstrated substantial compliance.

NR 211.13(4)(f) (f) The department may decide not to review an application for conditional removal credit authority, in which case the conditionally revised discharge limits shall become effective and remain in effect until reviewed by the department. This review shall be conducted in accordance with the procedures of s. NR 211.30 before any pretreatment program approval or any WPDES permit reissuance pursuant to the pretreatment program approval.

NR 211.13(5) (5) POTW application for authorization to give removal credits.

NR 211.13(5)(a) (a) Any POTW that wants to give removal credits or modify existing ones shall apply for authorization from the department. Such application may be submitted at any time and shall include the following information:

NR 211.13(5)(a)1. 1. A list of pollutants for which removal credits are proposed;

NR 211.13(5)(a)2. 2. The data required pursuant to sub. (2);

NR 211.13(5)(a)3. 3. Proposed revised discharge limits for each affected subcategory of industrial users calculated in accordance with sub. (1) (c);

NR 211.13(5)(a)4. 4. A certification that the POTW has an approved local pretreatment program or qualifies for the exceptions to this requirement found in subs. (4) and (7);

NR 211.13(5)(a)5. 5. A specific description of the POTW’s current methods of using or disposing of its sludge and a certification that the granting of removal credits will not cause a violation of the sludge requirements identified in sub. (1) (b) 4.;

NR 211.13(5)(a)6. 6. A certification that the granting of removal credits will not cause a violation of the POTW’s WPDES permit limits and conditions as required in sub. (1) (b) 5.; and

NR 211.13(5)(a)7. 7. A demonstration that the granting of removal credits will be consistent with sub. (1) (b) 6. for each industrial user for whom removal credits are proposed.

NR 211.13(5)(b) (b) The department shall review the POTW’s application for authorization to give or modify removal credits in accordance with the procedures of s. NR 211.30 within 180 days from public notice of an application to complete review.

NR 211.13(5)(c) (c) Nothing in these regulations precludes an industrial user or other interested party from assisting the POTW in preparing and presenting the information necessary to apply for authorization.

NR 211.13(6) (6) Continuation and withdrawal of authorization.

NR 211.13(6)(a) (a) A POTW authorized to grant removal credits for a pollutant regulated in a categorical pretreatment standard may extend that removal credit to the same pollutant when it is regulated in other categorical standards. If a POTW elects to extend removal credits to a new categorical standard, industrial subcategory, or one or more industrial users that were not granted removal credits, it shall notify the department. A POTW may extend removal credits if granting the removal credit will not cause the POTW to violate the sludge requirements identified in sub. (1) (b) 4., or its WPDES permit limits and conditions as required by sub. (1) (b) 5.

NR 211.13(6)(b) (b) Removal credits shall be included in the authorized POTW’s WPDES permit as soon as possible and shall become an enforceable requirement of the POTW’s WPDES permit. The removal credits shall remain in effect for the term of the POTW’s WPDES permit, provided the POTW maintains compliance with the conditions specified in par. (d).

NR 211.13(6)(c) (c) A POTW authorized to give removal credits shall monitor and report on the POTW’s removal capabilities. The reporting period shall be specified by the department and may not be less than once per year. A minimum of one sample per month during the reporting period is required, and all sampling data shall be in-cluded in the POTW’s compliance report. As a condition of retaining removal credit authorization, the POTW’s consistent removal shall continue to be equal to or greater than the removal credit.

NR 211.13(6)(d) (d)

NR 211.13(6)(d)1. 1. Compliance with the conditions in sub. (1) (b) 3. to 5. may be reviewed by the department whenever it elects and shall, at the very least, be reviewed whenever the POTW’s WPDES permit is reissued. If the department determines, on the basis of compliance monitoring reports or other information available to it, that the conditions specified in sub. (1) (b) 3. to 5. are not being met, the department shall withdraw the POTW’s authority to grant removal credits or modify those credits in accordance with the procedures specified in subd. 3.

NR 211.13(6)(d)2. 2. If, during the term of the POTW’s WPDES permit, the department determines that the POTW’s consistent removal rate is consistently and substantially lower than the removal credit specified in the POTW’s WPDES permit, the department shall either withdraw the POTW’s authority to grant removal credits or modify those credits in accordance with the procedures specified in subd. 3.

NR 211.13(6)(d)3. 3. If the department tentatively determines that a POTW’s authority to grant removal credits should be withdrawn or modified, the department shall notify the POTW of its determination and give the POTW a reasonable time to take corrective action. The period for corrective action may exceed 60 days only if the POTW or industrial users demonstrate that a longer period is reasonably necessary to undertake appropriate corrective action.

NR 211.13(6)(d)4. 4. If the department finds the corrective action insufficient, the department shall, in accordance with the procedures specified in s. NR 211.30, issue a public notice, provide a public comment period of at least 30 days and provide an opportunity for interested persons to request a public hearing. The mailing list for the public notice shall include, at a minimum, the POTW and industrial users to whom the revised discharge limits have been applied.

NR 211.13(6)(d)5. 5. If the department finally determines to withdraw or modify the POTW’s authority to grant removal credits, the department shall provide notice of the determination to the POTW, all industrial users to whom the revised limits have been applied and each person who has requested individual notice. This notice shall include the basis for the determination. Notice of the final determination shall also be published in the same newspaper that published the notice of the tentative determination.

NR 211.13(6)(d)6. 6. Following the notice required by subd. 5., all industrial users to whom revised discharge limits have been applied shall be subject to the modified discharge limits or the limits prescribed in the applicable categorical pretreatment standard. Industrial users shall comply with these limits within a reasonable time, not to exceed the period of time prescribed in the applicable categorical pretreatment standard, as may be specified by the department.

NR 211.13(7) (7) Where the department has not required the POTW to develop a pretreatment program, the POTW may not be required to develop a pretreatment program as a precondition to obtaining authorization to give removal credits. The POTW shall, however, be required to comply with the other conditions of sub. (1) (b).

NR 211.13 History History: Cr. Register, September, 1986, No. 369, eff. 10-1-86; cr. (1) (b) 6., (2) (e), (5) (a) 7., (6) (d) 4. to 6., am. (2) (a), (5) (a) 5. and 6., r. and recr. (2) (d) 2. to 4. and (6) (d) 3., Register, March, 1992, No. 435, eff. 4-1-92; CR 13-006: r. and recr. (2) (e) 2. b. Register January 2014 No. 697, eff. 2-1-14.

NR 211.14 NR 211.14 Fundamentally different factors variances.

NR 211.14(1) (1) Any interested person believing that factors relating to an industrial user are fundamentally different from the factors considered during development of a categorical pretreatment standard applicable to that industrial user, and that the existence of those factors justifies a different discharge limit from that specified in the applicable categorical pretreatment standard may request a fundamentally different factors variance under this section. Such a variance request may be initiated by EPA.

NR 211.14(2) (2) 

NR 211.14(2)(a) (a) A request for a fundamentally different factors variance may be approved only if:

NR 211.14(2)(a)1. 1. Factors relating to the industrial user which would be affected by the variance are fundamentally different from the factors considered in establishing the applicable categorical pretreatment standard;

NR 211.14(2)(a)2. 2. There is an applicable categorical pretreatment standard which specifically controls the pollutant for which alternative limits have been proposed; and

NR 211.14(2)(a)3. 3. The procedural requirements of this section have been met.

NR 211.14(2)(b) (b) A request for a fundamentally different factors variance to establish limits less stringent than required by the categorical pretreatment standard may be approved only if:

NR 211.14(2)(b)1. 1. The alternative limit requested is no less stringent than justified by the fundamental difference; and

NR 211.14(2)(b)2. 2. The alternative limit will not result in a violation of any prohibited discharge standard set forth in or established under s. NR 211.10;

NR 211.14(2)(b)3. 3. The alternative limit will not result in an environmental impact not related to water quality which would be fundamentally more adverse than the impact considered during development of the categorical pretreatment standard; and

NR 211.14(2)(b)4. 4. Compliance with the applicable categorical pretreatment standard would result in either a removal cost wholly out of proportion to the removal cost considered during development of the standard or an environmental impact not related to water quality which would be fundamentally more adverse than the impact considered during development of the standard.

NR 211.14(2)(c) (c) A request for a fundamentally different factors variance to establish limits more stringent than required by the categorical pretreatment standard may be approved only if:

NR 211.14(2)(c)1. 1. The alternative limit requested is no more stringent than justified by the fundamental difference; and

NR 211.14(2)(c)2. 2. Compliance with the alternative limit would not result in either a removal cost wholly out of proportion to the removal cost considered during development of the standard or an environmental impact not related to water quality which would be fundamentally more adverse than the impact considered during the development of the standard.

NR 211.14(3) (3) Factors considered fundamentally different are:

NR 211.14(3)(a) (a) The nature or quality of pollutants contained in the industrial user’s raw process wastewater;

NR 211.14(3)(b) (b) The volume of the industrial user’s process wastewater and the volume of effluent discharged;

NR 211.14(3)(c) (c) The environmental impact, other than that related to water quality, of control and treatment of the industrial user’s raw process wastewater;

NR 211.14(3)(d) (d) The energy requirements of the application of control and treatment technology;

NR 211.14(3)(e) (e) Age, size, and configuration of the industrial user’s equipment, facilities, production processes and process changes, availability of land, and engineering aspects of the application of control technology; and

NR 211.14(3)(f) (f) The cost of compliance with required control technology.

NR 211.14(4) (4) Factors which may not be considered fundamentally different are:

NR 211.14(4)(a) (a) The feasibility of installing the required pretreatment equipment within the time allowed by the categorical pretreatment standard;

NR 211.14(4)(b) (b) The assertion that the standard cannot be achieved with the appropriate pretreatment equipment installed, if such assertion is not based on factors listed in sub. (3);

NR 211.14(4)(c) (c) The industrial user’s ability to pay for the required pretreatment equipment; or

NR 211.14(4)(d) (d) The impact of a discharge on the quality of the POTW’s receiving water.

NR 211.14(5) (5) Requests for a variance shall be submitted in writing to the department within 180 days after the effective date of the federal categorical pretreatment standard. If the industrial user has requested a categorical determination under s. NR 211.33, the request for a fundamentally different factors variance may be delayed to within 30 days after the final decision on the category determination has been made. Variance requests shall include the following:

NR 211.14(5)(a) (a) The name and address of the person making the request;

NR 211.14(5)(b) (b) Identification of the interest of the person making the request;

NR 211.14(5)(c) (c) Identification of the POTW receiving the indirect discharge from the industrial user for which the variance is requested;

NR 211.14(5)(d) (d) Identification of the categorical pretreatment standards applicable to the industrial user;

NR 211.14(5)(e) (e) A list of each pollutant for which an alternative discharge limit is sought;

NR 211.14(5)(f) (f) The alternative discharge limits being proposed for each pollutant identified in par. (e);

NR 211.14(5)(g) (g) A description of the industrial user’s existing pretreatment equipment;

NR 211.14(5)(h) (h) A schematic flow chart of the industrial user’s water system including water supply, process wastewater systems, and points of discharge; and

NR 211.14(5)(i) (i) A statement of facts clearly establishing why the variance request should be approved, including detailed supporting data, documentation and evidence necessary to fully evaluate the merits of the request.

NR 211.14(6) (6) The department will act only on written requests for variances which contain all of the information required in sub. (5). Persons who submit incomplete requests will be notified that the requests are deficient and will be given 30 days to correct the deficiency. If the deficiency is not corrected within 30 days, or within an extended period if allowed by the department, the request for the variance shall be denied.

NR 211.14(7) (7) The department shall publish a notice of its receipt of a request for a fundamentally different factors variance and shall mail copies of the notice to the affected industrial user and any other interested party. The public notice shall be published as a Class I notice under ch. 985, Stats., in a newspaper of general circulation in the area in which the industrial user is located. The department shall allow a 30-day period for public review and comment.

NR 211.14(8) (8) If the department finds that fundamentally different factors do not exist, the department shall deny the request. If the department finds that fundamentally different factors do exist, the request and findings shall be forwarded to EPA for EPA’s approval, disapproval, or revision and approval of the variance. A copy of the final determination shall be sent to the person requesting the variance, and to the affected industrial user and POTW.

NR 211.14 History History: Cr. Register, July, 1983, No. 331, eff. 8-1-83.

NR 211.15 NR 211.15 Monitoring and reporting requirements.

NR 211.15(1) (1) Within 180 days after the effective date of a categorical pretreatment standard as published in the federal register, or 180 days after the final decision in a request for category determination under s. NR 211.33, whichever is later, industrial users subject to that standard which are not new sources and which are currently discharging or scheduled to discharge into a POTW shall submit to the control authority a report containing the information listed in pars. (a) to (g), except when reports containing this information have already been submitted to the control authority for other purposes. At least 90 days before the commencement of discharge, new sources and sources that become industrial users subsequent to the promulgation of an applicable categorical pretreatment standard shall submit a report to the control authority which at a minimum contains the information listed in pars. (a) to (e). New sources shall estimate the information required by pars. (d) and (e). New sources shall also include in this report information regarding the method of pretreatment that will be used to meet the applicable pretreatment standards. The control authority may require the industrial user to submit any additional information which the control authority finds is necessary to determine the industrial user’s ability to meet the applicable pretreatment standards.

NR 211.15(1)(a) (a) The name, address, and location of the industrial user and the name of the owner or operator.

NR 211.15(1)(b) (b) A list of any environmental control permits held by or for the industrial user.

NR 211.15(1)(c) (c) The nature and average rate of production and the standard industrial classification of the processes carried out by the industrial user. This description shall include a schematic diagram which indicates points of discharge to the POTW from the processes regulated by the applicable categorical pretreatment standard.

NR 211.15(1)(d) (d) The measured average and maximum flows from the industrial user to the POTW, in gallons per day, from regulated process streams and other streams as necessary to allow use of the combined wastestream formula of s. NR 211.12. When approved by the control authority based on considerations of cost or accessibility, the average and maximum flow of the discharge may be estimated by verifiable techniques.

NR 211.15(1)(e) (e) The nature and concentration of pollutants in the discharge from each of the industrial user’s regulated processes and an identification of the applicable categorical pretreatment standards and pretreatment requirements. The nature and concentration of pollutants in each discharge shall be determined in accordance with subds. 1. to 5. In cases where the standard requires compliance with a best management practice or pollution prevention alternative, the user shall submit documentation as required by the control authority or the applicable standard to determine compliance.

NR 211.15(1)(e)1. 1. Sampling and analysis shall be performed to identify the concentration or mass of regulated pollutants in the discharge from each regulated process, according to the requirements of the applicable categorical pretreatment standard and the control authority. Both daily maximum and average values shall be reported. Samples shall be representative of daily operations. A minimum of 4 grab samples per day shall be used for pH, cyanide, total phenols, oil and grease, sulfide and volatile organics. All other samples shall be 24-hour flow proportional composites, unless time proportional or grab sampling is authorized by the control authority. Where alternative sampling is authorized by the control authority, the samples shall be representative of the discharge and the decision to allow alternative methods shall be documented in the industrial user’s file. Multiple grab samples collected during a 24-hour period may be composited prior to analysis provided appropriate protocols specified in ch. NR 219, and in EPA and department guidance are followed. Samples for cyanide, total phenols and sulfides may be composited in the laboratory or in the field. Samples for volatile organics and oil and grease may be composited in the laboratory. Other samples may be composited using approved methodologies as authorized by the control authority.

NR 211.15(1)(e)2. 2. The industrial user shall collect and analyze a minimum of one representative sample to compile the data necessary for this subsection. Sampling shall be performed during full facility production when substances subject to regulation, including those in batch or periodic discharges, are likely to be present in maximum concentrations or quantities for the reporting period. The control authority may require more frequent monitoring when necessary to assess compliance with the applicable pretreatment standards and requirements. If an industrial user samples any pollutant more frequently than required by the control authority and analyzes these samples according to sub. (8), the results of this monitoring shall be included in the report.

NR 211.15(1)(e)3. 3. Samples shall be taken at the discharge from the regulated process, or at the discharge from pretreatment facilities provided that wastewaters that are not regulated by the applicable categorical pretreatment standard are not mixed with the regulated waste-stream prior to the sampling point. Where sampling according to this provision is not feasible, the department may consider allowing alternative means of sampling to be used to determine compliance with the applicable categorical pretreatment standard at the point of discharge from the regulated process. If streams which are not regulated by the applicable categorical pretreatment standard are mixed with the regulated stream prior to the sampling point, the industrial user shall measure the flows and concentrations necessary to allow use of the combined wastestream formula of s. NR 211.12 in order to evaluate compliance with the pretreatment standards. Where an alternative concentration or mass limit has been calculated in accordance with s. NR 211.12 this adjusted limit along with the supporting data shall be submitted to the control authority.

NR 211.15(1)(e)4. 4. Representative historical data may be used in the initial baseline report with the approval of the control authority.

NR 211.15(1)(e)5. 5. The report shall indicate the time, date, and place of sampling, method of analysis, and shall certify that sampling and analysis are representative of normal work cycles and expected pollutant discharges to the POTW.