Section 283.83, Wis. Stats., provides authority for a continuing planning process, which includes schedules of compliance for limitations. The department also has authority to promulgate rules under s. 227.11 (2) (a), Wis. Stats., necessary to administer the specific statutory requirements and effectuate the purpose of ch. 283, Wis. Stats. 4. Related Statutes or Rules:
These rules relate indirectly to the WPDES permit program that regulates wastewater discharges. Related rules include all other rules that comprise the WPDES permit program and include chapters NR 100 to 106 and 200 to 299, Wis. Adm. Code.
5. Plain Language Analysis:
The purpose of the proposed rule is to ensure that the state’s regulations are consistent with federal regulations. Minor clarifications and corrections will also be made.
Under the federal water pollution control act (Clean Water Act), the U.S. Environmental Protection Agency (EPA) has a responsibility to promulgate rules addressing the impingement and entrainment of aquatic organisms at cooling water intake structures. Effective January 17, 2002 and October 14, 2014, the EPA promulgated rules that specify requirements for New Facilities and Existing Facilities that address impingement and entrainment at cooling water intake structures. In order to be consistent with the EPA-promulgated New Facilities and Existing Facilities Rules, the Department of Natural Resources (the department) is proposing to create ch. NR 111, Wis. Adm. Code. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
Following the revisions contained in this rule package, the department rules will be consistent with existing federal regulations:
40 CFR 125 Subpart I – Requirements for New Facilities; 40 CFR 125 Subpart J – Requirements for Existing Facilities; 33 U.S.C. § 1326(b), Clean Water Act section 316(b) – Requirements for facilities with cooling water intake structures
7. Comparison with Similar Rules in Adjacent States:
All the other adjacent states including EPA Region 5 states (Illinois, Indiana, Michigan, Minnesota, and Ohio) and EPA Region 7 states (Iowa, Nebraska, Kansas and Missouri) are subject to the EPA regulations that apply to the National Pollutant Discharge Elimination System permit program and that are delegated to the states for implementation, and therefore, have the same requirements as Wisconsin. The proposed rule does add select definitions to clarify implementation of the rule, and such definitions are not in place in neighboring states.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
Not applicable.
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The economic impact analysis was done by creating four categories of compliance with the federal rule, estimating the cost of compliance associated with each category, and then finally estimating the number of facilities in each category. The four categories are: currently in compliance with lower operating costs, currently in compliance with higher operating costs, not in compliance with the 0.5 feet per second (fps) standard and has a lower cost of coming into compliance, and not in in compliance with the 0.5 fps standard and has a higher cost of coming into compliance. The following documents were used to make the economic impact analysis:
Economic and Benefits Analysis for the Final Section 316(b) Phase II Existing Facilities Rule. EPA-821-R-04-005 (February 2004).
Technical Development Document for the Final Section 316(b) Phase II Existing Facilities Rule EPA 821-R-04-007 DCN 6-0004 (February 12, 2004).
“Technical Development Document for the Final Section 316(b) Existing Facilities Rule,” U.S. Environmental Protection Agency EPA-821-R-14-002 (May 2014).10. Effect on Small Business (initial regulatory flexibility analysis):
The rule will primarily impact power plants and paper mills in Wisconsin and is not expected to affect small businesses. It is expected that no or very few small businesses with an intake structure have intakes with design intake flows that are greater than the minimum threshold and therefore would be subject to the federal rule.
11. Agency Contact Person:
Emma Lorenzen
Wisconsin Department of Natural Resources
Bureau of Water Quality WY/3
101 S. Webster Street
PO Box 7921
Madison, WI 53707-7921
12. Place where comments are to be submitted and deadline for submission:
Section 1. NR 111 is created to read:
COOLING WATER INTAKE STRUCTURES
SUBCHAPTER I
GENERAL
NR 111.01 Purpose. The purpose of this chapter is to establish requirements that apply to cooling water intake structures, including requirements that apply to location, design, construction, and capacity of cooling water intake structures at new and existing facilities. The chapter includes standards for minimizing adverse environmental impact associated with the use of cooling water intake structures and required procedures, including permit application requirements and information submission requirements, for establishing the appropriate technology requirements at certain specified facilities, and monitoring, reporting, and recordkeeping requirements to demonstrate compliance. In combination, these components represent the best technology available for minimizing adverse environmental impact associated with the use of cooling water intake structures. These requirements are established and implemented in Wisconsin pollutant discharge elimination system permits issued under s. 283.31 (6), Stats. Note: This regulation does not authorize take, as defined by the federal endangered species act, 16 USC 1532 (19) or Wisconsin’s endangered species law, s. 29.604, Stats. The U.S. fish and wildlife service and the state of Wisconsin have determined that any impingement, including entrapment or entrainment of federally- or state-listed species constitutes take. Such take of federally-listed species may be authorized pursuant to the conditions of a permit issued under 16 USC 1539 (a) or where consistent with an incidental take statement contained in a biological opinion pursuant to 16 USC 1536 (o). Such take of state-listed species may be authorized pursuant to the conditions of a permit or authorization issued under 29.604 (6m) or (6r), Stats. Note: A permittee subject to this rule shall still comply with all state and federal threatened and endangered species laws for all organisms that could be adversely impacted by the permittee’s cooling water intake structures, including amphibians, reptiles, and other aquatic invertebrates.
NR 111.02 Applicability.
(1) In this section:
(a) “Greenfield facility” means a facility that is constructed at a site at which no other source is located, or that totally replaces the process or production equipment at an existing facility, as specified in 40 CFR 122.29 (b) (1) (i) and (ii). (b) “Stand-alone facility” means a new, separate facility that is constructed on property where an existing facility is located and whose processes are substantially independent of the existing facility at the same site, as specified in 40 CFR 122.29 (b) (1) (iii). (2) This chapter applies to a facility that meets all of the following conditions:
(a) The facility is a point source as defined in s. 283.01 (12), Stats. (b) The facility uses or proposes to use one or more cooling water intake structures with a cumulative design intake flow greater than 2 million gallons per day.
(c) The facility has or proposes to have at least one cooling water intake structure and uses or proposes to use at least 25 percent of the total water withdrawn on a whole-facility basis exclusively for cooling purposes as specified in sub. (6).
(3) For purposes of this chapter, a facility may be classified as either an existing facility or a new facility, in accordance with all of the following:
(a) A facility shall be classified as an existing facility if construction commenced on the facility on or before January 17, 2002. Any modification of the facility or any addition of a unit at the facility does not change its classification as an existing facility.
(b) 1. A facility shall be classified as a new facility if all of the following apply:
a. The facility consists of any building, structure, facility, or installation that meets the definition and criteria of a “new source” or “new discharger” under 40 CFR 122.2 and 122.29 (b) (1), (2), and (4). b. The facility is either a greenfield facility or stand-alone facility.
c. Construction commenced on the facility after January 17, 2002.
d. The facility uses either a newly constructed cooling water intake structure, or an existing cooling water intake structure whose design capacity is increased to accommodate the intake of additional cooling water.
2. New units that are added to a facility for the purposes of the same general industrial operation, such as new peaking units at an electrical generating station, shall not be considered new facilities.
3. A facility that has been built adjacent to a facility that qualifies as an existing facility under par. (a) is a new facility if it otherwise meets the standards for a new facility under this paragraph, while the original facility remains as an existing facility.
