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
Horicon, Wi 53032-9782
Phone: (920) 387-7886
Fax: (920) 387-7888
13. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearing, by regular mail, fax, or email to:
Jennifer Jerich
Wisconsin Department of Natural Resources
Bureau of Water Quality
N7725 Highway 28
Horicon, Wi 53032-9782
Phone: (920) 387-7886
Fax: (920) 387-7888
A hearing and comments submission deadline is currently planned for December 2015.
SECTION 1. NR 106.03 (4m) and (11m) are created to read:
NR 106.03 (4m) “Great Lakes system” includes all the surface waters within the drainage basin of the Great Lakes.
(11m) “Same waterbody” means two hydrologically connected points with similar water quality characteristics in which a pollutant can travel between in a reasonable period of time without significantly changing chemically or physically. Hydrological connections can include surface and groundwater connections.
SECTION 2. NR 106.06 (2) (a) and (b) are repealed and recreated to read:
NR 106.06 (2) Limitations for bioaccumulative chemicals of concern (BCCs). (a) For purposes of this subsection, the following definitions apply:
1. “New discharge” means any point source that first received WPDES permit coverage from the department after November 6, 2000. It does not include a discharge from a publicly owned treatment works if the discharge from the treatment works is caused by a project that is correcting or preventing a public health problem.
2. “Existing discharge” means any point source that currently has a WPDES permit and that has continually had WPDES permit coverage since November 6, 2000 or earlier. It also includes a discharge from a publicly owned treatment works that becomes permitted after November 6, 2000 if the discharge from the treatment works is caused by a project that is correcting or preventing a public health problem.
3. “Expanded discharge” means any increase in concentration, level or loading of a BCC, which would exceed a limitation specified in a current WPDES permit, or which, according to the procedures in s. NR 106.05, would result in the establishment of a new limitation in a reissued or modified WPDES permit. It does not include an expanded discharge from a publicly owned treatment works if the expanded discharge from the treatment works is caused by a project that is correcting or preventing a public health problem. (b) Notwithstanding any other provisions in chs. NR 102 and 106, there shall be no mixing zones for effluent limitations for new discharges of BCCs or for the expanded portions of existing discharges of BCCs into waters of the Great Lakes system. Effluent limitations for new discharges of BCCs and for expanded portions of existing discharges shall equal the most stringent applicable water quality criterion or secondary value for the BCC. Effluent limitations for an expansion of an existing discharge of BCCs shall be determined by means of a mass balance where the limitation for the existing portion of a permitted discharge that meets the provisions of par. (br) 1. or 2. shall be determined using the requirements of sub. (4) and the limitation for any expanded portion of the discharge may not exceed the most stringent criterion or value for that BCC. Note: An example of a project that is preventing or correcting a public health problem is a situation where a community with failing septic systems connects to a POTW, as defined in s. 106.59, to avert a potential public health threat from the failing systems. SECTION 3. NR 106.06 (2) (br) is created to read:
NR 106.06 (2) (br) Effluent limitations for existing discharges of BCCs into waters of the Great Lakes system, may not include a mixing zone or exceed the most stringent applicable water quality criteria or secondary values for BCCs, except as provided under subd. 1. or 2.
1. Water conservation. A mixing zone may be granted and an effluent limitation may exceed the most stringent water quality criterion or secondary value for a discharged BCC if the permittee demonstrates in the permit application that failure to grant a mixing zone for the BCC would preclude water conservation measures that would lead to an overall load reduction of the BCC, even though a higher concentration of the BCC occurs in the effluent.
2. Technical and economic considerations. A mixing zone may be granted and an effluent limitation may exceed the most stringent water quality criterion or secondary value for the discharged BCC, provided the permittee demonstrates and the department concurs that all the following conditions are met:
a. For the BCC discharged, the permittee is in compliance with and will continue to comply with the WPDES permit requirements and this chapter.
b. The permittee has reduced and will continue to reduce loadings of the BCC for which a mixing zone is requested to the maximum extent possible, such that any additional controls or pollution prevention measures to reduce or ultimately eliminate the BCC discharged would result in unreasonable economic effects on the discharger or the affected community because the controls or measures are not feasible or cost-effective.
3. Approval Requirements. If the department approves a mixing zone for a BCC under this paragraph, the following requirements shall be met:
a. The approved mixing zone is no larger than necessary to account for the technical constraints and economic effects identified under subd. 2.
b. All water quality criteria or secondary values for the BCC shall be met at the edge of an approved mixing zone or be consistent with the applicable U.S. environmental protection agency (EPA) approved total maximum daily load (TMDL).
c. The permit shall contain a numeric effluent limitation for the BCC, determined using the requirements of sub. (4) and the limit shall not be less stringent than the limit that was effective on November 6, 2000.
d. The WPDES permit may, as appropriate, require the discharger to implement an ambient water quality monitoring plan to ensure compliance with water quality criteria and consistency with any applicable TMDL, including the evaluation of alternative means for reducing the BCC from other sources in the watershed.
e. Any mixing zone for a BCC approved by the department pursuant to this paragraph shall be limited to one permit term unless the permittee applies for a mixing zone approval at the next reissuance and the department approves the mixing zone in the subsequent permit applications in accordance with the requirements of this paragraph.
f. The corresponding permit fact sheet for an approved mixing zone shall specify the mixing provisions used in calculating the permit limits and shall identify each BCC for which a mixing zone is approved.
SECTION 4. NR 106.06 (6) is repealed and recreated to read:
NR 106.06 (6) Effluent Limitations Based Upon Elevated Background Concentrations. Whenever the representative background concentration for a toxic or organoleptic substance in the receiving water is determined to be greater than any applicable water quality criterion or secondary value for that substance the calculation of an effluent limitation and the determination of the need for the limitation in a permit shall be performed subject to all of the following:
(a) If the department has developed an EPA approved TMDL for the toxic or organoleptic substance in the receiving water, an effluent limitation for that substance shall be consistent with the TMDL.
(b) If no EPA approved TMDL has been developed and if the intake source of the wastewater is all from the same waterbody as the receiving water of the discharge, the department may determine that the discharge does not have a reasonable potential to cause or contribute to an excursion above the applicable water quality criterion or secondary value for the substance, and may determine that a numeric limitation is not necessary, provided the permittee has demonstrated that all of the following conditions are met:
1. The permittee withdraws 100 percent of the intake water containing the substance from the same waterbody into which the discharge is made.
2. The permittee does not contribute any additional mass of the identified intake substance to its wastewater.
3. The permittee does not alter the identified intake substance chemically or physically in a manner that would cause adverse water quality impacts to occur that would not occur if the substance were left in-stream.
4. The permittee does not contribute to a statically significant increase the identified intake substance concentration, as determined by the department, at the edge of the mixing zone or at the point of discharge if a mixing zone is not allowed, as compared to the concentration of the substance in the intake water, unless the increased concentration does not cause or contribute to an excursion of water quality standard for that substance.
