Chapter NR 211

NR 211.17 History History: Cr. Register, March, 1992, No. 435, eff. 4-1-92; corrections in (1) (a), (b) and (8) made under s. 13.92 (4) (b) 7., Stats., Register May 2011 No. 665; CR 19-082: am. (1) (b) Register July 2020 No. 775, eff. 8-1-20.

NR 211.18 NR 211.18 Defenses.

NR 211.18(1) (1) In any action brought for violation of s. NR 211.10 (1) or (2) (c), (d), (e), (f) or (g), an industrial user shall have an affirmative defense if the industrial user demonstrates that:

NR 211.18(1)(a) (a) The industrial user did not know or have reason to know that its discharge, alone or in conjunction with the discharge or discharges from other sources, would cause pass through or interference; and

NR 211.18(1)(b) (b)

NR 211.18(1)(b)1. 1. A local limit designed to prevent pass through or interference was developed in accordance with s. NR 211.10 (3) (a) for each pollutant in the user’s discharge which caused pass through or interference and the industrial user was in compliance with each local limit prior to and during the pass through or interference; or

NR 211.18(1)(b)2. 2. If a local limit designed to prevent pass through or interference has not been developed in accordance with s. NR 211.10 (3) (a) for the pollutant or pollutants which caused the pass through or interference, the industrial user’s discharge immediately prior to and during the pass through or interference did not substantially change in nature or constituents from the industrial user’s prior discharge activity when the POTW was regularly in compliance with the POTW’s WPDES permit requirements and, in case of interference, applicable requirements for sewage sludge use or disposal.

NR 211.18(2) (2) In any action brought for noncompliance with categorical pretreatment standards, an industrial user shall have an affirmative defense if the industrial user demonstrates all of the requirements of pars. (a) to (d) by properly signed contemporaneous operating logs or other evidence.

NR 211.18(2)(a) (a) The noncompliance was exceptional, unintentional, temporary and beyond the reasonable control of the industrial user;

NR 211.18(2)(b) (b) The industrial user demonstrates that the noncompliance was not caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance or careless or improper operation;

NR 211.18(2)(c) (c) The industrial user identifies the causes of the noncompliance; and

NR 211.18(2)(d) (d)

NR 211.18(2)(d)1. 1. The industrial user has provided the information listed in subd. 1. a. to c. to the control authority within 24 hours of becoming aware of the noncompliance.

NR 211.18(2)(d)1.a. a. A description of the discharge and the cause of noncompliance;

NR 211.18(2)(d)1.b. b. The exact date and time period of noncompliance or, if not yet corrected, the anticipated time noncompliance is expected to end;

NR 211.18(2)(d)1.c. c. The steps being taken or planned to reduce, eliminate and prevent recurrence of the noncompliance.

NR 211.18(2)(d)2. 2. If this information is provided orally, a written submission to the control authority shall be made within 5 days.

NR 211.18 History History: Cr. Register, March, 1992, No. 435, eff. 4-1-92.

NR 211.19 NR 211.19 Loss of treatment capacity and bypass.

NR 211.19(1) (1) Industrial users shall control production or contain discharges to the extent necessary to maintain compliance with pretreatment standards and requirements upon the reduction, loss or failure of a treatment facility until the facility is restored or an alternative method of treatment is provided. This requirement applies to, but is not limited to, the situation in which the primary source of power for the treatment facility is reduced, lost or fails.

NR 211.19(2) (2) A bypass that does not result in a violation of any pretreatment standard or requirement is prohibited except where the bypass is necessary for essential maintenance.

NR 211.19(3) (3) A bypass that results in a violation of any pretreatment standard or requirement is prohibited unless the conditions of pars. (a) to (c) are met:

NR 211.19(3)(a) (a)

NR 211.19(3)(a)1. 1. Bypass is necessary to prevent loss of life;

NR 211.19(3)(a)2. 2. Bypass is necessary to prevent personal injury; or

NR 211.19(3)(a)3. 3. The industrial user reasonably expects the following to occur without a bypass:

NR 211.19(3)(a)3.a. a. Substantial physical damage to property;

NR 211.19(3)(a)3.b. b. Damage to treatment facilities that would cause them to become inoperable; or

NR 211.19(3)(a)3.c. c. Substantial and permanent loss of natural resources.

NR 211.19(3)(b) (b) No feasible alternatives to the bypass exist, such as use of auxiliary treatment facilities, retention of untreated wastes or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass that occurred during normal periods of equipment downtime or preventive maintenance; and

NR 211.19(3)(c) (c)

NR 211.19(3)(c)1. 1. If an industrial user knows in advance of the need for a bypass, it notifies the control authority at least 10 days before the bypass if possible or otherwise as soon as possible; or

NR 211.19(3)(c)2. 2. An industrial user orally notifies the control authority of an unanticipated bypass within 24 hours from the time the industrial user becomes aware of the bypass and provides a written submission, within 5 days of the time the industrial user becomes aware of the bypass, containing:

NR 211.19(3)(c)2.a. a. A description of the bypass and its cause;

NR 211.19(3)(c)2.b. b. The duration of the bypass, including exact dates and times, and if the bypass has not been corrected, the time it is expected to end; and

NR 211.19(3)(c)2.c. c. A description of the steps taken or planned to prevent recurrence of the bypass.

NR 211.19 History History: Cr. Register, March, 1992, No. 435, eff. 4-1-92.

subch. II of ch. NR 211 Subchapter II — POTW Requirements

NR 211.20 NR 211.20 Establishment of pretreatment programs. The department may require any POTW with a design flow greater than 5 MGD which receives indirect discharges which pass through or interfere with the POTW’s operations or are subject to pretreatment standards to establish a POTW pretreatment program in accordance with the provisions of ss. NR 211.21 through 211.26. In addition, the department may require any POTW with a design flow of 5 MGD or less to establish such a program or part of such a program if the nature or volume of industrial user contributions, treatment process upsets, violations of POTW effluent limits, contamination of municipal sludge, or other circumstances warrant such a program in order to prevent interference with POTW treatment operations or the pass-through of untreated pollutants or in order to improve opportunities for disposal of municipal sludge. The pretreatment program shall be developed in accordance with a compliance schedule established by the department in the POTW’s WPDES permit which calls for the completion by specific dates of major events leading to the development and implementation of the pretreatment program.

NR 211.20 History History: Cr. Register, July, 1983, No. 331, eff. 8-1-83.

NR 211.21 NR 211.21 Compliance dates. POTWs shall establish pretreatment programs which meet the requirements of ss. NR 211.22 to 211.26 no later than 3 years after the reissuance or modification of an existing WPDES permit to require the development of a pretreatment program, but in no case later than July 1, 1983. A POTW identified after July 1, 1983, as being required to develop a pretreatment program shall develop a pretreatment program which meets the requirements of ss. NR 211.22 to 211.26 and submit it as soon as possible, but not later than one year after written notification from the department that a pretreatment program is required.

NR 211.21 History History: Cr. Register, July, 1983, No. 331, eff. 8-1-83; am. Register, March, 1992, No. 435, eff. 4-1-92.

NR 211.22 NR 211.22 Legal authority requirements. Where the department requires a POTW to develop a pretreatment program under this subchapter, the POTW shall operate under legal authority and include procedures, fully enforceable in federal or state courts, which at a minimum enables the POTW to perform the following functions. These authorities and procedures shall be fully exercised and implemented at all times.

NR 211.22(1) (1) Deny or condition new or increased discharge of pollutants, or changes in the nature of pollutants, discharged to the POTW by industrial users where such discharges do not meet applicable pretreatment standards and requirements or where such discharge causes the POTW to violate its WPDES permit.

NR 211.22(2) (2) Require compliance with applicable pretreatment standards and requirements by industrial users.

NR 211.22(3) (3) Control through permit, order, or similar means the discharge to the POTW by each industrial user.

NR 211.22(4) (4) Require the development by industrial users of the compliance schedules required under s. NR 211.15 (1) (g).

NR 211.22(5) (5) Require the submission of all notices and self-monitoring reports from industrial users as are necessary to assess and assure compliance by industrial users with pretreatment standards and requirements.

NR 211.22(6) (6) Carry out all inspection, surveillance, and monitoring procedures necessary to determine, independent of information supplied by industrial users, whether industrial users are complying with applicable pretreatment standards and requirements. Representatives of the POTW must be authorized to enter any premises of any industrial user in which an effluent source or treatment system is located or in which records are required to be kept, under s. NR 211.15 (8), to assure compliance with pretreatment standards and requirements.

NR 211.22(7) (7) Obtain remedies, including injunctive relief, for any industrial user’s:

NR 211.22(7)(a) (a) Noncompliance with any pretreatment standard or requirement;

NR 211.22(7)(b) (b) Failure to allow the POTW to enter and to carry out inspections and monitoring activities;

NR 211.22(7)(c) (c) Noncompliance with any rule, regulation or order issued by the POTW; or

NR 211.22(7)(d) (d) Noncompliance with any reporting requirement imposed by the POTW or by this chapter.

NR 211.22(8) (8) Have authority to seek or assess civil or criminal penalties in at least the amount of $1,000 per day for each violation of a pretreatment standard or requirement.

NR 211.22(9) (9) After informal notice to the industrial user, immediately and effectively halt or prevent any discharge of pollutants to the POTW which reasonably appear to present an imminent danger to the health or welfare of persons.

NR 211.22(10) (10) After notice to the industrial user and an opportunity to respond, halt or prevent any discharge to the POTW which endangers or may endanger the environment or which threatens to interfere with the operation of the POTW.

NR 211.22(11) (11) Comply with the confidentiality requirements of s. NR 211.26.

NR 211.22 History History: Cr. Register, July, 1983, No. 331, eff. 8-1-83; am. (intro.) and (3), r. and recr. (7), renum. (8) to (10) to be (9) to (11) and am. (10), cr. (8), Register, March, 1992, No. 435, eff. 4-1-92.

NR 211.23 NR 211.23 Procedural requirements.

NR 211.23(1) (1) Where the department requires a POTW to develop a pretreatment program under this subchapter, the POTW shall develop and fully implement procedures to ensure compliance with the requirements of a pretreatment program. At a minimum, these procedures shall enable the POTW to:

NR 211.23(1)(a) (a) Identify and locate all possible industrial users who might be subject to the pretreatment program.

NR 211.23(1)(b) (b) Reclassify, upon the POTW’s own initiative or in response to a petition from an industrial user, a significant industrial user not subject to categorical pretreatment standards as a nonsignificant industrial user after a finding that the industrial user has no potential for adversely affecting the POTW’s operation or for violating any pretreatment standard or requirement.

NR 211.23(1)(c) (c) Identify the character and volume of pollutants contributed to the POTW by industrial users.

NR 211.23(1)(d) (d) Notify industrial users of applicable pretreatment standards and requirements including those relating to user charges and solid or hazardous waste disposal.

NR 211.23(1)(e) (e) Receive and analyze self-monitoring reports and other notices submitted by industrial users.

NR 211.23(1)(f) (f) Randomly sample and analyze the effluent from industrial users and conduct surveillance and inspection activities in order to identify, independently of information supplied by industrial users, occasional and continuing noncompliance with pretreatment standards.

NR 211.23(1)(g) (g) Develop an enforcement response plan that discusses how the POTW will investigate and respond to instances of industrial user noncompliance. At a minimum, the plan shall:

NR 211.23(1)(g)1. 1. Describe how the POTW will investigate instances of noncompliance;

NR 211.23(1)(g)2. 2. Describe the escalating enforcement responses the POTW will take in response to all anticipated types of industrial user violations and the time periods within which the responses will take place; and

NR 211.23(1)(g)3. 3. Identify by title the officials responsible for each type of response.

NR 211.23(1)(h) (h) Investigate instances of noncompliance by collecting and analyzing samples and other information with sufficient care to produce evidence admissible in enforcement proceedings or in judicial actions.

NR 211.23(1)(i) (i) Make the information obtained under pars. (a) to (h) available to the department or EPA upon request.

NR 211.23(1)(j) (j) Annually publish a list of the industrial users that were in significant noncompliance with the applicable pretreatment standards and requirements at any time during the previous 12 months. The list shall be published in a newspaper of general circulation that provides meaningful public notice in the area served by the POTW. A significant industrial user has been in significant noncompliance if: any of the criteria in subds. 1. to 8. apply. A non-significant industrial user has been in significant noncompliance if criteria in subd. 3., 4., or 8. apply.

NR 211.23(1)(j)1. 1. Sixty-six percent or more of all the measurements of the industrial user’s wastewater for the same pollutant taken during a 6 month period exceeded by any magnitude any numeric pretreatment standard or requirement including an instantaneous limit.

NR 211.23(1)(j)2. 2. Thirty-three percent or more of all the measurements of the industrial user’s wastewater for the same pollutant taken during a 6 month period equaled or exceeded the product of the numeric pretreatment standard or requirement including an instantaneous limit multiplied by either 1.4 for BOD, TSS, and fats-oil-grease; 1.2 for all other pollutants except pH; or exceeded a pH limit by .4 standard units.

NR 211.23(1)(j)3. 3. The control authority has reason to believe that the industrial user has caused, alone or in combination with other discharges, interference, pass through or endangerment of the health of POTW personnel or the general public because of a violation of a pretreatment standard or requirement.

NR 211.23(1)(j)4. 4. The industrial user has discharged a pollutant that has caused imminent endangerment to human health, welfare or the environment or has otherwise resulted in the POTW’s exercise of its emergency authority to halt or prevent a discharge.

NR 211.23(1)(j)5. 5. The industrial user failed to meet, by 90 days or more, a milestone date contained in a compliance schedule within a local control mechanism or enforcement order for starting construction, completing construction or attaining compliance.

NR 211.23(1)(j)6. 6. The industrial user has failed to provide within 45 days of a deadline a required report containing all required monitoring results and other information, such as a baseline monitoring report, 90 day compliance report, periodic self-monitoring report or report on compliance with a compliance schedule.

NR 211.23(1)(j)7. 7. The industrial user has failed to accurately report noncompliance.

NR 211.23(1)(j)8. 8. The control authority has determined that any other violation or group of violations, which may include a violation of required best management practices, by the industrial user has adversely affected the operation or implementation of the local pretreatment program.

NR 211.23(2) (2) The POTW shall have sufficient resources and qualified personnel to carry out the authority and procedures described in this section and s. NR 211.22, unless conditional approval of the pretreatment program is requested under s. NR 211.24 (2).

NR 211.23 History History: Cr. Register, July, 1983, No. 331, eff. 8-1-83; r. and recr. (1), Register, March, 1992, No. 435, eff. 4-1-92; CR 13-006: am. (1) (j) Register January 2014 No. 697, eff. 2-1-14.

NR 211.235 NR 211.235 Regulation of significant industrial users. A POTW with an approved pretreatment program shall:

NR 211.235(1) (1) 

NR 211.235(1)(am) (am) Control the discharge from each significant industrial user through individual control mechanisms or, as provided in par. (b), through general control mechanisms. The control mechanism shall have a duration of no longer than 5 years and may not be transferred without prior notification to the POTW. The control mechanism shall contain or contain by reference the following:

NR 211.235(1)(am)1. 1. Statement of duration;

NR 211.235(1)(am)2. 2. Transferability requirements;