ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING, RENUMBERING AND AMENDING, AMENDING, REPEALING AND RECREATING AND CREATING RULES
The statement of scope for this rule, WT-11-12, was approved by the Governor on May 29, 2012 published in Register 678A on June 14, 2012 and approved by the Natural Resource Board on June 27, 2012. The Wisconsin Natural Resources Board proposes an order to repeal NR 106.03 (10), NR 106.03 (11), NR 106.05 (8) note, NR 106.145 (9) (b) note, NR 106.32 (2) (b) (2), NR 106.32 (3) (a) 4. a. note, NR 106.34, NR 106.36 (3) note, NR 106.36 (4), NR 106.37 (1) (note), NR 106.37 (2) note, NR 106.37 (3) and NR 106.37 (3) note, NR 106.38, NR 106.88 (2) note, NR 106.88(4), NR 106.88(6), NR 106.91 note; to renumber NR 106.03 (1); to amend NR 106.03 (13), NR 106.03(14), NR 106.05 (1) (c), NR 106.06 (3) (c) (intro), NR 106.06(3)(c)4., NR 106.06 (3) (c) 5., NR 106.06 (7), NR 106.07 (8), NR 106.09 (3) (b), NR 106.09 (3) (b) 1., NR 106.115 table 1 (title) and Table 2 (title), NR 106.32 (2) (b) and 2., NR 106.32 (3) (a) 4. a., NR 106.36 (3)Table 1(title), NR 106.37 (1), NR 106.55 (6) (a) Table 1 (title), NR 106.62, NR 106.75, NR 106.83 (2) (c), NR 106.87 (1), NR 106.91, NR 212.01, NR 212.02 (2), NR 212.03, NR 212.03 (3), (12), (22), and (24), NR 212.12 (2) (d), NR 212.40 (2), (b), and (c), NR 212.60 (1), (b), (d), (e), and (g), NR 212.70 (1) (a) and (b), NR 212.70 Table 5m (title), NR 217.14 (2) and (3); to repeal and recreate NR 106.05 (8), NR 106.06 (3) (b), NR 106.07 (2), NR 106.07 (3), NR 106.07 (4), NR 106.07 (5), NR 106.08, NR 106.09 (2) (e), NR 106.09 (3) (c), NR 106.33, NR 106.37 (2), NR 106.8 8(1), NR 106.88 (2), NR 106.88 (3), NR 106.88 (5), NR 106.89, NR 212.02 (1); and to create NR 106.03 (1g), NR 106.03 (2m), NR 106.03 (2m) note, NR 106.03 (5m), NR 106.03 (13m), NR 106.04 (3m), NR 106.06 (3) (bm), NR 106.06 (4) (f), NR 106.07 (1) (title), NR 106.07 (2) note, NR 106.07 (3) note, NR 106.07 (4) note, NR 106.07 (5m) and (title), NR 106.07 (6) (title), NR 106.07 (7) (title), NR 106.07 (8) (title), NR 106.07 (9) (title), NR 106.07 (10) and (title), NR 106.09 (2) (f), NR 106.09 (3) (c), NR 106.09 (3) (d), NR 106.1 (note), NR 106.32 (2) (e), NR 205.03 (9g), NR 205.065 and 205.066, NR 212 Subchapter I (title), NR 212 Subchapter II (title), NR 212 Subchapter II and (title) relating to WPDES permit implementation, TMDL implementation, and TMDL development and affecting small business.
WT-11-12
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: Chapter 283, Stats. 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. More specifically, s. 283.11(1), Stats., authorizes the department to promulgate by rule effluent limitations and standards for any category of point sources established by the U.S. Environmental Protection Agency (EPA) and for which EPA has promulgated effluent limitations and standards. In addition, s. 283.13, Stats., authorizes the department to establish technology-based effluent limitations as well as more stringent water quality-based effluent limitations to comply with any state or federal law, rule or regulation. Section 283.15, Stats., authorizes variances to water quality-based effluent limitations. Section 283.31, Stats., provide authority to issue permits that require compliance with effluent limitations and standards for point source discharges to surface waters. General permits conveying coverage to multiple point sources can be issued pursuant to s. 283.35, Stats. Section 283.45, Stats., grants authority to develop permit factsheets to accompany the WPDES permit. 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 Statutes or Rules:
These rules relate directly to the WPDES permit program that regulates wastewater discharges. Chapters NR 106 and 212, Wis. Adm. Code, relate to permit processing and permit issuance procedures. Chapter NR 205, Wis. Adm. Code, contains general provisions applicable to the WPDES permit program. Chapters NR 106 and NR 205, Wis. Adm. Code, are also being updated in rule packages WT-13-12, WT-12-12, and WT-31-10. The following board order complements updates made in these other rule packages. 5. Plain Language Analysis:
The purpose of the proposed rule is to ensure that the state’s regulations relating to Wisconsin Pollution Discharge Elimination System (WPDES) permitting, total maximum daily load (TMDL) implementation, and TMDL development are consistent with federal regulations. On July 18, 2011, the Department received a letter from the Environmental Protection Agency (EPA) identifying seventy five issues and potential inconsistencies with Wisconsin’s authority to administer its approved WPDES permit program. Modifications to NR 106, NR 205, and 212 are necessary to address several issues identified in the EPA letter. Minor clarifications and corrections are also needed in these chapters.
Specifically, the proposed rule revisions perform six overall functions: modifies the procedures used to calculate water quality based effluent limitations for toxic substances, changes how effluent limitations for toxic substances are expressed and when they are included in WPDES permits, modifies the procedure used for determining when whole effluent toxicity (WET) limitations are required in WPDES permits, creates a framework to develop and implement TMDLs, clarifies and modifies procedures for granting compliance schedules, and other modifications. The proposed changes are briefly described below.
Calculation of Water Quality Based Effluent Limitations (Issues 2, 28, 35)
The proposed rule creates a new methodology for calculating acute fish and aquatic life water quality based effluent limitations for toxic substances to address issue 28 in EPA’s July 18, 2011 letter. This change is necessary to conform to 40 CFR 122.44(d)(1)(vii)(A) and to ensure that Wisconsin’s permitting program is adequately protecting fish and aquatic life from acute toxicity effects in low stream flow situations. Specifically, the rule creates a mass balance approach to calculate acute fish and aquatic life water quality based effluent limitations in low stream flow conditions using 1-day 10-year hydrologically based low flow data (1Q10). This rule package also proposes changes to the specific provisions relating to the imposition of ammonia water quality based effluent limits in permits to address issue 35 in EPA’s letter. Under current laws, WPDES permits may not include ammonia limitations when they exceed 20 mg/L in the summer and 40 mg/L in the winter. This provision does not conform to the requirements in 40 CFR 122.44(d) and was determined invalid in MEA v. WDNR, Case No. 12CV3654. This rule revision proposes to delete this provision and base all permitting decisions for ammonia on a reasonable potential analysis in conformance with standard reasonable potential procedures for ammonia in ch. NR 106. Other proposed changes are included that are clarifying in nature. Specifically, the rulemaking seeks to clarify DNR’s ability to:
• Establish effluent limitations on internal waste streams (Issue 2 – 40 CFR 122.45 (h)) • Include mass limitations in addition to concentration based effluent limitations (Issue 2 – 40 CFR 122.44(f)) • Express water quality based effluent limitations for metals as total recoverable (Issue 2- 40 CFR 122.45(c)) Expression and Inclusion of Effluent Limits in WPDES Permits (Issue 2, 30, 34, 40 and 41 and 70)
The proposed rule modifies how water quality-based and technology-based effluent limitations are to be expressed in WPDES permits in order to comply with the requirements in 40 CFR 122.45(d) and applicable EPA guidance. Specifically, federal law and guidance requires that weekly average and monthly average limitations be included in WPDES permits for a given pollutant whenever limitations are determined to be necessary for continuous discharges subject to NR 210 - mainly publicly owned treatment works (POTWs). Daily maximum and monthly average limitations are required in WPDES permits for a given pollutant whenever limitations are determined to be necessary for continuous discharges not subject to NR 210 (e.g. industrial discharges). Changes to s. NR 106.07 are made to address this issue. There is an exception to 40 CFR 122.45(d). The Department may choose to not express limits as specified in 40 CFR 122.45(d) if it is impracticable. The Department made a demonstration for phosphorus limitations that expression of water quality based limits as specified in 40 CFR 122.45(d) was impracticable and USEPA approved the state’s impracticability demonstration. This rule package does not change the reasonable potential procedures in s. NR 106.05, Wis. Adm. Code. However, clarification was provided to explicate that any water quality-based effluent limitation, which has the reasonable potential to be exceeded, will be included in the WPDES permit. Alternative limitations may be included in a WPDES permit if a water quality standard is approved (Issue 40). This rule also clarifies the Departments authority to include a water quality based effluent limitation absent representative effluent data for a pollutant (Issue 70).
Whole Effluent Toxicity (WET) (Issue 2, 10, 42, and 74)
EPA over promulgated Wisconsin’s WET reasonable potential procedures used for discharges to the Great Lakes Basin on December 6, 2000 at 40 CFR 132.6(j). To conform to the requirements of the Great Lakes Initiative (40 CFR 132.6 (j), and 40 CFR part 132, Procedure 6 Appendix F, Paragraph D). This issue was included in issues 10 and 74 of EPA’s July 18th letter. The proposed rule modifies the reasonable potential process used for determining whether WET limitations are required in WPDES permits. Specifically, the proposed methodology utilizes a reasonable potential multiplication factor to convert the calculated effluent toxicity value to the estimated 95th percentile toxicity value. In addition to these changes, this rulemaking provides clarification to situations where chloride limitations are included in WPDES permits in lieu of WET limitations (Issue 42), and requires that WET permitting decisions be made whenever representative WET data is available (Issue 74). The proposed rule revision also seeks to clarify the averaging period of WET limitations (Issue 2). TMDL Development and Implementation (Issue 10)
In 2000, EPA disapproved of Wisconsin’s TMDL development program for toxic compounds, and other pollutants subject to GLI regulations, discharged into the Great Lakes Basin and promulgated 40 CFR 132.6(h). To conform to the requirements of 40 CFR 130.7 and the GLI at 40 CFR part 132, Appendix F, the proposed rule revision seeks to create NR 212 subchapter II to describe acceptable TMDL development procedures and to clarify procedures used to implement approved TMDLs in WPDES permits. Specifically, this rule provides general allocation procedures for TMDLs developed in the Great Lakes Basin as well as in other basins in the state, and provides procedures for deriving TMDL-based limitations, and public participation opportunities. These changes should address the TMDL component of issue 10 in EPA’s comment letter. Compliance Schedules (Issues 31, 32, 37, 40)
This rule revision proposes several changes to compliance schedule provisions for chloride, ammonia, and secondary values. These adjustments are intended to address part of issues 31, 32, 37 and 40 in EPA’s comment letter. These changes will clarify that a compliance schedule must be an enforceable sequence of actions or operations leading to compliance with an effluent limitation, and clarify that compliance schedules can only be granted if it is demonstrated that an existing point source can’t comply with a permit limitation upon permit reissuance.
Currently, Wisconsin Law allows additional time to be added to an ammonia compliance schedules at ss. NR 16.332 (2) (b) (2), NR 106.32 (3) (a) 4. a, and NR 106.37 (2-3), Wis. Adm. Codes, for the purposes of gathering additional data. As currently written, these provisions do not conform to the requirements of 40 CFR 122.47 and were determined invalid in Court Case No. 12CV3654 MEA vs. WDNR. This rule revision proposes to delete portions of these sections so that time cannot be added to a compliance schedule for the purposes of collecting additional data. Revisions are also proposed to clarify that a WPDES permit may be modified if an alternative ammonia limitation is approved by WDNR during the term of the permit or at the time of permit application. These modifications are subject to antidegradation requirements in ch. NR 207, Wis. Adm. Code.
