ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING AND AMENDING, AMENDING, REPEALING AND RECREATING AND CREATING RULES
The statement of scope for this rule, WT-31-10 was published in Register No. 662 on February 28, 2011. The Wisconsin Natural Resources Board proposes an order to repeal NR 106.145 (2) (b) 2.; to consolidate, renumber and amend NR 106.145 (2) (b) (intro.) and 1., to amend NR 106.145 (1) (b), and (2) (title); to repeal and recreate NR 106.06 (2) (a), (b), (6) and 106.10; and to create NR 106.03 (4m), (11m), and 106.06 (2) (br); relating to calculating water quality based effluent limitations for point source discharges to surface waters.
WT-31-10
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Analysis Prepared by the Department of Natural Resources
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) Permit Program consistent with the requirements of the federal water pollution control act of 1972, commonly known as the Clean Water Act, and amendments to the act. Section 283.11 requires that rules promulgated by the department as they relate to point source discharges must comply with the Clean Water Act and regulations adopted under that act. Section 283.13 (5), Stats., authorizes the department to establish more stringent water quality based effluent limitations (WQBELs) and to require compliance with such limitations if these limitations are necessary to comply with any state or federal law, rule or regulation. Section 283.31(3), and (4), Stats., provides authority to issue permits that require compliance with effluent limitations and standards for point source discharges to surface waters and any more stringent limitations needed to comply with state or federal water quality standards or any applicable federal law or regulation. The department also has general authority to promulgate rules under s. 227.11 (2) (a), Stats., that interpret the specific statutory authority granted in ch. 283, Stats. 4. Related statute or rule:
These rule changes relate directly to the WPDES Permit program and the regulation of wastewater discharges. Chapter NR 106, Wis. Adm, Code, contains the procedures used by the Bureau of Water Quality to calculate water quality based effluent limitations for WPDES permits issued to point source discharges to surface waters under ch. 283, Stats. Related statutes and rules include: s. 281.15, Stats., which authorizes the department to promulgate water quality standards for waters of the state. Water quality standards for surface waters are set in chs. NR 102 to 105, Wis. Adm. Code. 5. Plain language analysis:
The primary purpose of these proposed rule changes to ch. NR 106, Wis. Adm. Code, is to be consistent with federal requirements for calculating and implementing water quality based effluent limitations for point source discharges to surface waters included in WPDES Permits. In a letter dated July 18, 2011, U.S. Environmental Protection Agency (EPA) identified 75 potential issues or deficiencies in Wisconsin’s statutory and regulatory authority for the WPDES Permit Program. EPA directed the department to either make rule changes to address these inconsistencies or deficiencies or obtain a statement from the Attorney General’s Office verifying that the existing rules are consistent with federal regulations. The proposed rules address four of the 75 issues identified in EPA’s July 18, 2011, letter.
In addition to making some minor clarifications and cross-referencing corrections to the Administrative Code for uniformity, these proposed rule changes will:
• Revise s. NR 106.06(2) to phase out (with some exceptions) mixing zone allowances for discharges of bioaccumulative chemicals of concern (BCCs) in the Great Lakes system. While Wisconsin is already adhering to the requirements of the federal Great Lakes Water Quality Initiative (GLI), the proposed rules formally adopt the GLI requirements. When Wisconsin last made changes to NR 106, a footnote in the rule indicated that such changes would be promulgated. • Modify s. NR 106.06(6) provisions that regulate pollutant discharges when a pollutant is present in the intake water used as the water supply for industrial and municipal dischargers. The proposed rules adopt the federal requirements for establishing effluent limitations. • Remove the exemption from regulation in s. NR 106.10(1) and (2) for noncontact cooling water (NCCW) containing chlorine or other chemical additives present at levels consistent with those in public water supplies, as required by a Dane County Circuit Court Stipulation and Order in Case No. 12-CV-0569, Midwest Environmental Defense Center v. WDNR, et. al. (March 2, 2012) and federal regulations. • Remove the special definition of “representative data” for purposes of determining reasonable potential to exceed effluent limitations for mercury in s. NR 106.145(1) and (2), as required by a Dane County Circuit Court Order in Case No. 12-CV-3654, Midwest Environmental Defense Center v. WDNR, (July 1, 1014) and federal regulations. 6. Summary and comparison with existing and proposed federal regulations:
The table below sets forth the sections of ch. NR 106 that the department is proposing to revise, the issue number in EPA’s July 18, 2011, letter that identifies the need for the proposed revision, and the issue and corresponding federal regulation that the department has considered in proposing these rules: Wis. Adm. Code Section EPA Issue Number Issue Federal Code Section
106.06(2) 71 BCC Mixing Zone Phase-outs 40 C.F.R. Part 132, Appendix F, Procedure 3, paragraph C (Mixing Zones for Bioaccumulative Chemicals of Concern (BCCs)) 106.06(6)
106.03(11m) 10 Pollutants in Intake Water 40 C.F.R. 132.6, Appendix F, Procedure 5, paragraphs D and E (Consideration of Intake Pollutants) 106.10(1) & (2)
17 Non-contact Cooling Water Exemption 40 C.F.R. 122.44(d)(1)(i) (Requiring WQBELs for all pollutants which cause or have the reasonable potential to cause or contribute to an excursion above any state water quality standard) 106.145(1) & (2) 8 Mercury Reasonable Potential Determination 40 C.F.R. Part 132, Appendix F, Procedure 5 (Reasonable potential determination procedures) In 1995, EPA issued Final Water Quality Guidance for the Great Lakes System. The federal Guidance conforms with key treaty provisions agreed to by the United States and Canada in the Great Lakes Water Quality Agreement, a binational agreement establishing common water quality objectives for the Great Lakes. Section 118(c) of the Clean Water Act, 33 U.S.C. 1268(c), requires all Great Lakes states, including Wisconsin, to adopt procedures consistent with the federal Water Quality Guidance for the Great Lakes System. If a Great Lakes state fails to adopt the federal guidance, EPA must promulgate the federal standard for the state. In 2000, EPA overpromulgated sections of ss. NR 106.06 and 106.10 at 40 C.F.R. 132.6. In Issue 10 of EPA’s letter, EPA directed Wisconsin to amend state rules to cure the disapproval of the provisions of s. NR 106.06 regarding consideration of intake pollutants in determining reasonable potential. In Issue 17, EPA directed Wisconsin to revise s. NR 106.10 so it conforms to 40 C.F.R. 122.44(d) regarding reasonable potential determinations. In a February 17, 2009 letter, EPA objected to Wisconsin’s existing mercury reasonable potential rule in s. NR 106.145 as inconsistent with federal requirements. In Issue 8 of EPA’s letter, EPA directed Wisconsin to amend the rule to cure EPA’s 2009 disapproval. Section NR 106.06(2) currently contains a note expressing the State’s intent to develop a rule to phase out mixing zones for existing dischargers of bioaccumulative chemicals of concern (BCCs) to comply with the federal Great Lakes Water Quality Initiative (GLI). In Issue 71 of EPA’s letter, EPA directed Wisconsin to establish a rule to phase out mixing zones for BCCs for discharges within the Great Lakes basin. The department believes adoption of the proposed rules will address EPA’s concerns. The department will have to seek EPA approval for the proposed rules.
7. Comparison of similar rules in adjacent states:
All of the other EPA Region 5 states or adjacent states (Illinois, Indiana, Iowa, Michigan, Minnesota and Ohio) are subject to EPA regulations implementing the Clean Water Act and the National Pollutant Discharge Elimination System (NPDES) Program. All other states bordering the Great Lakes system (Illinois, Indiana, Michigan, Minnesota, New York, Ohio and Pennsylvania), are subject to the GLI. See 40 CFR Part 132 (setting forth requirements that Great Lakes States must adopt). The proposed rules will align Wisconsin’s WPDES regulations with federal regulations. 8. Summary of factual data and analytical methodologies:
A discussion of EPA’s reasons for issuing the federal Water Quality Guidance for the Great Lakes System and the data underlying EPA’s analysis are included in “Final Water Quality Guidance for the Great Lakes System: Supplementary Information Document” (SID) (EPA 1995). See also 60 Fed. Reg. 15366 to 15385 (1995) (concerning the history of the Great Lakes Water Quality Initiative and EPA’s adoption of Final Water Quality Guidance for the Great Lakes System).
9. Analysis and supporting documentation used to determine effect on small business or in preparation of an economic impact analysis:
A notice soliciting comments regarding potential economic impacts of these proposed rule changes was sent to all industrial and municipal facilities currently regulated by a Wisconsin Pollutant Discharge Elimination System (WPDES) Permit.
DNR's System for Wastewater Applications, Monitoring and Permits (SWAMP) was used to compile existing WPDES permit holders with non-contact cooling water discharge outfalls. These data were used to determine which facilities may have impact from this rule. Many of the provisions of the proposed rule revision are already implemented by the Department when setting water quality based limits as required by EPA under Federal law.
The proposed revisions to s. NR 106.06 contain provisions relating to discharges within the Great Lakes system and outside the Great Lakes system. The department solicited information on economic impacts if the department were to adopt the proposed rules and, as an alternative, if the department were to follow proposed s. NR 106.06(6)(c)(1) statewide. The proposed rule contains different standards for determining permit limits for certain discharges outside the Great Lakes system, to allow permittees outside the Great Lakes system greater flexibility than is required by federal law for dischargers within the Great Lakes system. This rule does not specify monitoring frequency or compliance schedule timelines to allow for case by case assessment to ensure adequate environmental protection and reasonable reporting requirements. 10. Effect on small business:
The potential impacted facilities include facilities with non-contact cooling water outfalls or certain substances present in their intake water. Some of these facilities do not currently have treatment processes and may require upgrades or modifications to the facility to meet effluent limitations. Small businesses without treatment processes would be more likely to have economic impacts from changes required to meet WPDES permit limits. However, the department is currently required to use the procedures in the federal law when developing water quality based effluent limits and, as a result, many of the facilities impacted by these changes have already had permits reissued in compliance with the federal law.
11. A copy of any comments and opinion prepared by the Board of Veterans Affairs under s. 45.03 (2m), Stats., for rules proposed by the Department of Veterans Affairs: Not Applicable.
12. Agency contact:
Jennifer Jerich
Wisconsin Department of Natural Resources
Bureau of Water Quality
N7725 Highway 28
