Chapter 283

283.16(4) (4) Availability of variance.

283.16(4)(a) (a) When a determination under sub. (2) (a) that attaining the water quality standard for phosphorus through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible and approval of the variance under this section by the federal environmental protection agency are in effect, a permittee is eligible for a variance to the water quality standard for phosphorus for an existing source if all of the following apply:

283.16(4)(a)1. 1. The determination applies to the existing source.

283.16(4)(a)2. 2. Subject to par. (am) 1., the permittee certifies that the existing source cannot achieve compliance with the water quality based effluent limitation for phosphorus without a major facility upgrade.

283.16(4)(a)3. 3. The permittee agrees to comply with the requirements under sub. (6).

283.16(4)(am) (am)

283.16(4)(am)1. 1. The department shall approve an application for a variance if the requirements in pars. (a) and (b) are complied with, unless the department determines that the certification under par. (a) 2. is substantially inaccurate.

283.16(4)(am)2. 2. The department shall act on an application for a variance under this section no later than the 30th day after the day on which the department receives the application for the variance.

283.16(4)(am)3. 3. If the department does not act on the application for a variance by the deadline under subd. 2., the application is approved.

283.16(4)(b) (b) A permittee may apply for the variance under this section in any of the following ways:

283.16(4)(b)1. 1. By requesting the variance in the application for reissuance of the permit.

283.16(4)(b)2. 2. By requesting the variance within 60 days after the department reissues or modifies the permit to include a water quality based effluent limitation for phosphorus.

283.16(4)(b)3. 3. If the department issued a permit to the permittee before April 25, 2014, that includes a water quality based effluent limitation for phosphorus, by requesting a modification of the permit.

283.16(4)(b)4. 4. If the department issued a permit to the permittee before April 25, 2014, that includes a water quality based effluent limitation for phosphorus and that requires the permittee to submit to the department options for complying with the water quality based effluent limitation, by submitting a request for the variance as a compliance option.

283.16(4)(c) (c) After an application for a variance is submitted to the department under par. (b) 2., 3., or 4., and until the last day for seeking review of the department’s final decision on the application or a later date fixed by order of the reviewing court, the water quality based effluent limitation for phosphorus and any corresponding compliance schedule are not effective. All other provisions of the permit continue in effect except those for which a petition for review has been submitted under s. 283.63.

283.16(4)(d) (d) Notwithstanding sub. (3m) (c) and (d), the variance under this section remains in effect for an approved point source until the point source’s permit is reissued, modified, or revoked and reissued.

283.16(4)(e) (e) Notwithstanding s. 227.42, there is no right to a hearing under this subsection.

283.16(4)(f) (f) If the department approves a variance under this section and the department issues a modified water quality based effluent limitation under s. 283.63 for phosphorus, the permittee shall comply with the least stringent of the 2 effluent limitations.

283.16(6) (6) Variance provisions.

283.16(6)(a) (a) Except as provided in par. (ae) or (am) or sub. (7), in the permit for a point source for which the department approves the variance under this section the department may include a requirement that the permittee optimize the performance of the point source in controlling phosphorus discharges and shall include the following interim limits:

283.16(6)(a)1. 1. In the first permit for which the department approves the variance, a requirement to achieve, by the end of the term of that permit, compliance with an effluent limitation for phosphorus equal to 0.8 milligrams per liter as a monthly average.

283.16(6)(a)2. 2. In the 2nd permit for which the department approves the variance, a requirement to achieve, by the end of the term of that permit, compliance with an effluent limitation for phosphorus equal to 0.6 milligrams per liter as a monthly average.

283.16(6)(a)3. 3. In the 3rd permit for which the department includes the variance, a requirement to achieve, by the end of the term of that permit, compliance with an effluent limitation for phosphorus equal to 0.5 milligrams per liter as a monthly average.

283.16(6)(a)4. 4. In the 4th permit for which the department includes the variance, a requirement to achieve, by the end of the term of that permit, compliance with the water quality based effluent limitation for phosphorus.

283.16(6)(ae) (ae) If a permittee who chose an option for complying with a water quality based effluent limitation for phosphorus other than the variance under this section applies for the variance under this section, the department shall count a permit that included the other compliance option as though the permit had included the variance, for the purposes of par. (a), including determining the applicable interim limit.

283.16(6)(am) (am) If a permittee certifies that the point source cannot achieve compliance with an interim limit in par. (a) 1., 2., or 3. without a major facility upgrade, the department shall include in the permit a requirement to achieve compliance with the most stringent achievable interim limit, except that the department may not include an interim limit that is higher than the limit established under s. 283.11 (3) (am).

283.16(6)(b) (b) In the permit for a point source for which the department approves the variance under this section, in addition to the requirements under par. (a) or (am) or sub. (7), the department shall require the permittee to implement the permittee’s choice of the following measures to reduce the amount of phosphorus entering the waters of the state:

283.16(6)(b)1. 1. Making payments to counties as provided in sub. (8).

283.16(6)(b)2. 2. Entering into a binding, written agreement with the department under which the permittee constructs a project or implements a plan that is designed to result in an annual reduction of phosphorus pollution from other sources in the basin in which the point source is located, in an amount equal to the difference between the annual amount of phosphorus discharged by the point source and the target value.

283.16(6)(b)3. 3. Entering into a binding written agreement, that is approved by the department, with another person under which the person constructs a project or implements a plan that is designed to result in an annual reduction of phosphorus pollution from other sources in the basin in which the point source is located, in an amount equal to the difference between the annual amount of phosphorus discharged by the point source and the target value.

283.16(7) (7) More stringent effluent limitations. If the department determines under sub. (3) (cm) or (3m) (a) or (e) that the interim effluent limitations under sub. (6) (a), or any other effluent limitations that are in effect as a result of a previous review under sub. (3) or (3m), are not consistent with the highest attainable condition for a point source or category of point sources eligible for the variance under this section, the department shall include the more stringent effluent limitations that were specified under sub. (3) (cm) or (3m) (a) or (e) as being consistent with the highest attainable condition in permits that are reissued, modified, or revoked and reissued after that determination for the point source or category of point sources to which the more stringent effluent limitations apply.

283.16(8) (8) Payments to counties.

283.16(8)(a) (a)

283.16(8)(a)1. 1. A permittee that chooses to make payments for phosphorus reduction under sub. (6) (b) 1. shall make the payments to each county that is participating in the program under this subsection and that has territory within the basin in which the point source is located in proportion to the amount of territory each county has within the basin. The permittee shall make a total payment by March 1 of each calendar year in the amount equal to the per pound amount under subd. 2. times the number of pounds by which the amount of phosphorus discharged by the point source during the previous year exceeded the point source’s target value or $640,000, whichever is less. If no county that has territory within the basin is participating in the program under this subsection, the department shall direct the permittee to make payments to participating counties selected by the department.

283.16(8)(a)2. 2. The per pound payment for this subsection is $50 beginning on April 25, 2014. Beginning in 2015, the department shall adjust the per pound payment each year by a percentage equal to the average annual percentage change in the U.S. consumer price index for all urban consumers, U.S. city average, as determined by the federal department of labor, for the 12 months ending on the preceding December 31. The adjusted amount takes effect for permits reissued on April 1. The per pound payment in effect when a permit is reissued applies for the term of the permit.

283.16(8)(b) (b)

283.16(8)(b)1. 1. A county shall use payments received under this subsection to provide cost sharing under s. 281.16 (3) (e) or (4) for projects to reduce the amount of phosphorus entering the waters of the state, for staff to implement projects to reduce the amount of phosphorus entering the waters of the state from nonpoint sources, or for modeling or monitoring to evaluate the amount of phosphorus in the waters of the state for planning purposes.

283.16(8)(b)2. 2. A county shall use at least 65 percent of the amounts received under this subsection to provide cost sharing under s. 281.16 (3) (e) or (4).

283.16(8)(b)2m. 2m. No later than March 1 of each year, a county shall develop a plan for using the payments received under this subsection in the previous year that is consistent with the county’s land and water resource management plan under s. 92.10. A county shall do all of the following in the plan under this subdivision:

283.16(8)(b)2m.a. a. Identify projects that have, or watersheds in which there exists, the greatest potential to reduce the amount of phosphorus per acre entering the waters of the state, based on an assessment of the land and land use practices in the county.

283.16(8)(b)2m.b. b. Describe the measures it will take to ensure that each project that it funds is completed and evaluated.

283.16(8)(b)3. 3. No later than May 1 of the 2nd year following a year in which a county receives payments under this subsection, the county shall submit an annual report to the department of natural resources, the department of agriculture, trade and consumer protection, and each permittee from which it received those payments. In the annual report, the county shall describe the projects for which it provided cost sharing, quantify, in pounds, the associated phosphorus reductions achieved using accepted modeling technology, and identify any staff funded with the payments.

283.16(8)(b)4. 4. The department shall evaluate reports submitted under subd. 3. If the department determines that a county is not using the payments to effectively reduce the amount of phosphorus entering the waters of the state from nonpoint sources, the department may require permittees who made the payments to eliminate or reduce future payments to the county.

283.16(8)(b)5. 5. A county shall notify the department by January 1 of each year if it chooses not to participate in the program under this subsection.

283.16(8m) (8m) Projects or plans.

283.16(8m)(a) (a) A person who constructs a project or implements a plan under an agreement under sub. (6) (b) 2. or 3. that involves activities for which performance standards and prohibitions have been prescribed under s. 281.16 (2) or (3) shall comply with those performance standards and prohibitions and any associated technical standards.

283.16(8m)(b) (b) A person who constructs a project or implements a plan under an agreement under sub. (6) (b) 2. or 3. shall annually submit a report to the department that quantifies, in pounds, the phosphorus reductions achieved through the project or plan, using accepted modeling technology. The department shall review reports submitted under this paragraph. If the department determines, based on the results of the modeling, that a project or plan is not effectively reducing the amount of phosphorus entering the waters of the state, the department shall terminate or modify the agreement.

283.16(9) (9) Federal requirements. Notwithstanding any of the provisions of this section, the department shall comply with the provisions of 40 CFR 131.14 when approving and implementing a variance under this section.

283.16 History History: 2013 a. 378; 2015 a. 205.

283.17 283.17 Thermal effluent limitations.

283.17(1) (1) Any thermal effluent limitation proposed by the department may be modified by it in accordance with s. 283.63, if the owner or operator of the point source which is the subject of the proposed limitation demonstrates to the satisfaction of the department that the proposed limitation is more stringent than necessary to assure the protection and propagation of a balanced indigenous population of shellfish, fish and wildlife in and on the body of water into which the discharge is made.

283.17(2) (2) If a point source with a discharge having a thermal component is modified, the point source shall not be subject to any more stringent effluent limitation with respect to the thermal component of its discharge during either the 10-year period beginning on the date of completion of the modification or the period of depreciation or amortization of the facility for the purpose of section 167 or 169 of the internal revenue code, whichever ends first, if all of the following apply:

283.17(2)(a) (a) The modification of the point source commenced after October 18, 1972.

283.17(2)(b) (b) The point source, as modified, meets the most stringent effluent limitation established under s. 283.13.

283.17(2)(c) (c) The limitation under par. (b) assures protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife in and on the water into which the discharge is made.

283.17 History History: 1987 a. 27 ss. 1846mg, 1846ms; Stats. 1987 s. 147.055; 1991 a. 39; 1995 a. 227 s. 862; Stats. 1995 s. 283.17; 2015 a. 307.

283.19 283.19 Standards of performance.

283.19(1) (1) The department shall, by rule, promulgate standards of performance, for each class or category of sources referred to under s. 283.13 (1) that is required to be covered by permits issued under s. 283.31, which shall reflect the greatest degree of effluent reduction achievable through the application of the best available demonstrated control technology, processes, operating methods, or other alternatives. Where practicable, a standard of performance permitting no discharge of pollutants shall be adopted.

283.19(2) (2) Standards of performance adopted under this section shall apply to all new sources within each class or category of sources for which a standard of performance has been adopted under this section.

283.19(3) (3) The department shall revise such standards to reflect changes in control technology, processes, operating methods or other alternatives. When establishing or revising standards of performance under this section, the department shall consider the cost of achieving such effluent reductions and the nonwater quality environmental impact and energy requirements of such reductions.

283.19(4) (4) The department may distinguish among classes, types and sizes within categories of sources for the purpose of establishing or revising standards of performance under this section.

283.19(5) (5) No owner or operator of any new source may operate such source in violation of any standard of performance applicable to such a source.

283.19 History History: 1973 c. 74; 1993 a. 16.; 1995 a. 227 s. 863; Stats. 1995 s. 283.19; 2015 a. 307.

283.19 Cross-reference Cross-reference: See also NR 200-, Wis. adm. code.

283.21 283.21 Toxic and pretreatment effluent standards.

283.21(1) (1) Toxic effluent limitations and standards.

283.21(1)(a) (a) List. The department shall promulgate by rule a list of toxic pollutants or combinations of pollutants subject to this chapter which consists of those toxic pollutants referred to in table 1 of committee print number 95-30 of the committee on public works and transportation of the U.S. house of representatives. After promulgation of this list, the department may revise by rule the list periodically and may add to or remove from the list any pollutant. In revising this list the department shall consider the toxicity of the pollutant, its persistence, degradability, the usual or potential presence in any waters of any organisms affected by the discharge of the toxic pollutant or combination of pollutants, the importance of the affected organism and the nature and extent of the effect of the toxic pollutant on these organisms. A determination by the department under this subsection is subject to declaratory judgment proceedings under s. 227.40.

283.21(1)(b) (b) Effluent standards. The department may promulgate by rule an effluent standard, which may include a prohibition, establishing requirements for a toxic pollutant which, if an effluent limitation is applicable to a class or category of point sources, is applicable to that category or class of point sources only if this effluent standard imposes more stringent requirements than are imposed under s. 283.13 (2) (b). An effluent standard promulgated under this section shall take into account the toxicity of the pollutant, its persistence, degradability, the usual or potential presence of affected organisms in any waters, the importance of affected organisms, the nature and extent of the effect of the toxic pollutant on these organisms and the extent to which effective control is being or may be achieved under other regulatory authority.

283.21(1)(c) (c) Promulgation; review. The department shall promulgate by rule an effluent standard which may include a prohibition in accordance with par. (a) for each toxic pollutant referred to in table 1 of committee print number 95-30 of the committee on public works and transportation of the U.S. house of representatives as soon as practicable but no later than one year after the U.S. environmental protection agency promulgates an effluent standard for the pollutant. The department shall establish effluent standards for any other toxic pollutant listed under par. (a) as soon as practicable after it is listed. Each effluent standard promulgated under this paragraph shall be reviewed and, if appropriate, revised every 3 years.

283.21(1)(d) (d) Ample margin of safety. An effluent standard promulgated under this subsection shall be established at that level which the department determines provides an ample margin of safety.

283.21(1)(e) (e) Applicability to classes or categories of sources. If the department proposes or promulgates an effluent standard under this subsection, it shall designate the class or category of point sources to which the effluent standard applies. The department may include the disposal of dredged material in a class or category of point sources.

283.21(1)(f) (f) Effective date. An effluent standard promulgated under this subsection takes effect on the date specified in the order promulgating the standard, but not more than one year after the date of the order. If the department determines that compliance within one year after the date of the order is technologically infeasible for a class or category of sources, the department may establish the effective date for the effluent standard for that class or category of sources at the earliest date upon which compliance can be feasibly attained by those sources, but in no case more than 3 years after the date of the order.

283.21(1)(g) (g) Procedure for promulgation in absence of federal standards. In promulgating rules establishing a toxic effluent standard or prohibition for which the U.S. environmental protection agency has not promulgated a toxic effluent limitation, standard or prohibition, the department shall follow the additional procedures specified in s. 283.11 (4) (d).

283.21(2) (2) Pretreatment standards.

283.21(2)(a) (a) The department shall by rule promulgate pretreatment standards to regulate the introduction into publicly owned treatment works of pollutants which are not susceptible to treatment by such treatment works or which would interfere with the operation of such treatment works.

283.21(2)(b) (b) Pretreatment standards promulgated under this section shall specify a time for compliance, not to exceed 3 years after the date of promulgation, and shall be established to prevent the discharge through any publicly owned treatment work of any pollutant which interferes with, passes through, or otherwise is incompatible with the treatment works. If any toxic pollutant under sub. (1) is introduced by a source into a publicly owned treatment works, if the treatment by the works removes all or any part of that toxic pollutant, if the discharge from the works does not violate the effluent limitation or standard which would be applicable to that toxic pollutant if it were discharged by the source other than through a publicly owned treatment works and if the treatment of that toxic pollutant does not prevent sludge use or disposal by the works in accordance with section 1345 of the federal water pollution control act, as amended, 33 USC 1251 to 1376, then the pretreatment requirements for the sources actually discharging the toxic pollutant into the publicly owned treatment works may be revised by the owner or operator of the works to reflect the removal of that toxic pollutant by the works.

283.21(2)(c) (c) The department shall by rule promulgate the classes or categories of sources to which the pretreatment standards adopted under this section shall apply.

283.21(2)(d) (d) The department shall revise the pretreatment standards adopted under this section to reflect changes in control technology, processes, operating methods or other alternatives.

283.21 History History: 1973 c. 74; 1979 c. 221; 1985 a. 29; 1985 a. 182 ss. 11, 57; 1995 a. 227 s. 864; Stats. 1995 s. 283.21.

283.21 Cross-reference Cross-reference: See also NR 200-, Wis. adm. code.

subch. IV of ch. 283 SUBCHAPTER IV

PERMITS

283.31 283.31 Water pollutant discharge elimination system; permits, terms and conditions.

283.31(1) (1) The discharge of any pollutant into any waters of the state or the disposal of sludge from a treatment work by any person is unlawful unless such discharge or disposal is done under a permit issued by the department under this section or s. 283.33. The department may by rule exempt certain classes or categories of vessels from this section.

283.31(2) (2) No permit shall be issued by the department for the discharge into the waters of the state of any of the following:

283.31(2)(a) (a) Any radiological, chemical or biological warfare agent or high-level radioactive waste.

283.31(2)(b) (b) Any discharge which the secretary of the army acting through the chief of the U.S. army corps of engineers has objected to in writing on the ground that anchorage and navigation would be substantially impaired.

283.31(2)(c) (c) Any discharge to which the U.S. environmental protection agency has objected to in writing pursuant to s. 283.41.

283.31(2)(d) (d) Any discharge from a point source which is in conflict with any existing area-wide waste treatment management plan approved by the department. No area-wide waste treatment management plan may require the abandonment of existing waste treatment facilities which meet the requirements of this chapter unless the abandonment of such facilities clearly represents the most efficient and cost-effective method of providing waste treatment for the entire planning area.