Chapter NR 106

NR 106.03(14) (14) “Whole effluent toxicity” or “WET” means the aggregate toxic effect of an effluent as measured directly by a toxicity test.

NR 106.03 History History: Cr. Register, February, 1989, No. 398, eff. 3-1-89; r. (7), renum. (1) to (6), (8) and (9) to be (4), (7) to (9), (12) and (14) and am. (2), (4), (7) and (12), cr. (1), (5), (6), (10), (11) and (13), Register, August, 1997, No. 500, eff. 9-1-97; CR 09-123: r. and recr. (6) Register July 2010 No. 655, eff. 8-1-10; CR 15-084: cr. (4g), (4r), (11m) Register August 2016 No. 728, eff. 9-1-16; CR 15-085: renum. (1) to (1r), cr. (1g), (2m), (5m), r. (10), (11), am. (13), cr. (13m), am. (14) Register August 2016 No. 728, eff. 9-1-16.

subch. II of ch. NR 106 Subchapter II — General Procedures for Effluent Limitations

NR 106.04 NR 106.04 General.

NR 106.04(1) (1) The department shall establish water quality-based effluent limitations whenever categorical effluent limits required under s. 283.13, Stats., are less stringent than necessary to achieve applicable water quality standards specified in chs. NR 102 to 105. Water quality-based effluent limitations for a point source shall be specified in the permit for that point source.

NR 106.04(2) (2) In no case may the water quality based effluent limitations be less stringent than applicable categorical effluent limitations.

NR 106.04(3) (3) The department shall establish limitations for toxic and organoleptic substances if any of the conditions specified in s. NR 106.05 are met. Limitations shall be established according to the methods provided in s. NR 106.06 and included in WPDES permits according to the conditions provided in s. NR 106.07. The department shall establish limitations for whole effluent toxicity if any of the conditions specified in s. NR 106.08 are met. Whole effluent limitations shall be established and included in WPDES permits according to the methods provided in ss. NR 106.08 and 106.09.

NR 106.04(3m) (3m) In lieu of imposing limitations at the point of discharge when imposition of limitations at the point source discharge location is impracticable or infeasible, the department may impose water quality-based effluent limitations on an internal waste stream before that waste stream mixes with other waste streams or cooling water streams. Monitoring requirements as specified in s. NR 106.07 (1) shall also be applied to the internal waste streams in these instances.

NR 106.04(4) (4) Water quality based effluent limitations or monitoring requirements for toxic or organoleptic substances or whole effluent toxicity may be removed from a permit, subject to public notice and opportunity for hearing under ch. NR 203, if the limitation is determined to be unnecessary based on the procedures presented in this chapter or based on other information available to the department.

NR 106.04(5) (5) For purposes of this chapter, a cost-effective pollutant minimization program is an activity which has as its goal the reduction of all potential sources of the pollutant for the purpose of maintaining the effluent at or below the water quality based effluent limitation. The pollutant minimization programs specified in ss. NR 106.05 (8), 106.06 (6) (d), 106.07 (6) (f) and 106.145 (7) shall include investigation of treatment technologies and efficiencies, process changes, wastewater reuse or other pollution prevention techniques that are appropriate for that facility, taking account of the permittee’s overall treatment strategies, facilities plans and operational circumstances. Past documented pollution prevention or treatment efforts may be used to satisfy all or part of a pollution minimization program requirement. The permittee shall submit to the department an annual status report on the progress of a pollutant minimization program.

NR 106.04 History History: Cr. Register, February, 1989, No. 398, eff. 3-1-89; am. (3), cr. (5), Register, August, 1997, No. 500, eff. 9-1-97; CR 02-019: am. (5) Register October 2002 No. 562, eff. 11-1-02; CR 15-085: am. (1) (intro.), cr. (3m) Register August 2016 No. 728, eff. 9-1-16.

NR 106.05 NR 106.05 Determination of the necessity for water quality based effluent limitations for toxic and organoleptic substances.

NR 106.05(1) (1) 

NR 106.05(1)(a) (a) General. The department shall establish water quality based effluent limitations for point source dischargers whenever the discharges from those point sources contain(s) toxic or organoleptic substances at concentrations or loadings which do not, as determined by any method in this section, meet applicable water quality standards specified in chs. NR 102 to 105.

NR 106.05(1)(b) (b) Determining necessity for limitations based on secondary values. The department may establish water quality based effluent limitations for point source discharges based on secondary values calculated according to ch. NR 105. The department shall calculate secondary values and establish limitations for toxic and organoleptic substances in permits based on secondary values when, in the judgment of the department, one or more of the following factors support the necessity for the values, in conjunction with the procedures in subs. (2) to (8).

NR 106.05(1)(b)1. 1. Whole effluent toxicity or other biomonitoring or bioassay test results indicate toxicity to test or other species.

NR 106.05(1)(b)2. 2. The use designation of the receiving water is or may be impaired.

NR 106.05(1)(b)3. 3. There is other information that the industrial category or subcategory of the point source or the industrial or other sources discharging to a publicly owned treatment works discharges the substance.

NR 106.05(1)(b)4. 4. The substance in the wastewater will not be adequately removed or reduced by the type of wastewater treatment provided.

NR 106.05(1)(b)5. 5. The ecological or environmental risk from the substance may be significant when discharged to surface waters.

NR 106.05(1)(b)6. 6. Other relevant factors which may cause an adverse effect on surface waters as specified in s. NR 105.04 (1).

NR 106.05(1)(c) (c) If the department determines that a limitation based on an aquatic life acute or chronic secondary value should be established in a permit according to the provisions in this section, a permittee may request an alternative WET limit in accordance with s. NR 106.07 (7).

NR 106.05 Note Note: A toxic or organoleptic substance includes, but is not limited to, those substances in Table 6 of 40 CFR part 132.

NR 106.05(2) (2) When considering the necessity for water quality based effluent limitations, the department shall consider in-stream biosurvey data and data from ambient toxicity analyses whenever such data are available.

NR 106.05(3) (3) If representative discharge data are available for a toxic or organoleptic substance being discharged from a point source, limitations shall be established in accordance with any one of the following conditions:

NR 106.05(3)(a) (a) The discharge concentration of the substance for any day exceeds the limit of detection and exceeds the limitations based on either the acute toxicity criterion or secondary acute value for the substance as determined in s. NR 106.06 (3) where appropriate,

NR 106.05(3)(b) (b) The arithmetic average discharge concentration of the substance for any 4 consecutive days calculated as described in sub. (7) exceeds the limit of detection and exceeds the limitations based on either the chronic toxicity criterion or secondary chronic value for the substance as determined in s. NR 106.06 (4).

NR 106.05(3)(c) (c) The arithmetic average discharge concentration of the substance for any 30 consecutive days calculated as described in sub. (7) exceeds the limit of detection and exceeds any limitation based on the wildlife, human threshold, or human cancer criteria or secondary values, or taste and odor criteria for the substance as determined in s. NR 106.06 (4).

NR 106.05(4) (4) If at least 11 daily discharge concentrations of the substance are greater than the limit of detection and the requirements of sub. (3) do not result in the need for an effluent limitation, water quality based effluent limitations are necessary for a substance in a point source discharge if the upper 99th percentile of available discharge concentrations as calculated in sub. (5) meets any of the conditions specified in pars. (a) to (c).

NR 106.05(4)(a) (a) The upper 99th percentile of daily discharge concentrations of the substance exceeds the limitation based on either the acute toxicity criterion or the secondary acute value for the substance as determined in s. NR 106.06 (3).

NR 106.05(4)(b) (b) The upper 99th percentile of 4-day average discharge concentration of the substance exceeds the limitation based on either the chronic toxicity criterion or the secondary chronic value for the substance as determined in s. NR 106.06 (4), or

NR 106.05(4)(c) (c) The upper 99th percentile of 30-day average discharge concentration of the substance exceeds any limitation based on the wildlife, human threshold, or human cancer criteria or secondary value, or taste and odor criteria for the substance as determined in s. NR 106.06 (4).

NR 106.05(5) (5) This subsection shall be used to calculate upper 99th percentile values unless a probability distribution other than log normal is determined to be more appropriate and alternate methods to calculate the upper 99th percentile are available.

NR 106.05(5)(a) (a) When available daily discharge concentrations of the substance are not serially correlated and at least 11 concentrations are greater than the limit of detection, the upper 99th percentile of the daily average, the 4-day average and the 30-day average discharge concentrations may be calculated as follows:

P99= exp (mudn + Zpsigmadn)

NR 106.05(5)(b) (b) When the daily discharge concentrations of any substance are serially correlated, the serially correlated data may be adjusted using appropriate methods such as that presented in Appendix E of “Technical Support Document for Water Quality-based Toxics Control”, U.S. environmental protection agency, March 1991 (EPA/505/2-90-001). The equation presented in par. (a) may be used after adjustment of the serially correlated data.

NR 106.05(6) (6) If less than 11 daily discharge concentrations of the substance are greater than the limit of detection, and the requirements in sub. (3) do not result in an effluent limitation, water quality based effluent limitations are necessary for a substance in a point source discharge if the arithmetic average of available discharge concentrations as calculated in sub. (7) exceeds any value determined in par. (a) or (b):

NR 106.05(6)(a) (a) One fifth of the limitation based on the acute toxicity criterion or secondary acute value for the substance, as determined in s. NR 106.06 (3) where appropriate, or

NR 106.05(6)(b) (b) One fifth of any limitation based on chronic toxicity criteria or secondary chronic values or long-term impacts as determined in s. NR 106.06 (4).

NR 106.05(7) (7) The arithmetic average discharge concentration as used in subs. (3) and (6) shall be calculated using all available discharge data treated according to this subsection.

NR 106.05(7)(a) (a) If, in the judgment of the department, the analytical methods used to test for the substance represent acceptable methods, all values reported as less than the limit of detection shall be set equal to zero for calculation of the average concentration.

NR 106.05(7)(b) (b) If, in the judgment of the department, the analytical methods used to test for the substance do not represent the best acceptable methods, all values reported as less than the limit of detection shall be discarded from the data.

NR 106.05(8) (8) If representative discharge data are not available for a substance, the department may include water quality-based effluent limitations in a permit if, in the judgment of the department, water quality standards will be exceeded if the discharge of the substance is not limited.

NR 106.05(9) (9) Regardless of the results of the analysis conducted under this section, the department may, whenever determined necessary, require monitoring for any toxic or organoleptic substance.

NR 106.05 History History: Cr. Register, February, 1989, No. 398, eff. 3-1-89; renum. (1) to be (1) (a), cr. (1) (b) and (c), am. (3) (a) to (c), (4) (a) to (c), (5) (b), (6) (a) and (b) and (8), Register, August, 1997, No. 500, eff. 9-1-97; CR 03-050: am. (5) (a) Register February 2004 No. 578, eff. 3-1-04; CR 09-123: am. (5) (a) Register July 2010 No. 655, eff. 8-1-10; CR 15-085: am. (1) (c), r. and recr. (8) Register August 2016 No. 728, eff. 9-1-16.

NR 106.06 NR 106.06 Calculation of water quality based effluent limitations for toxic and organoleptic substances.

NR 106.06(1) (1) Basis for limitations.

NR 106.06(1)(a) (a) The department shall establish water quality based effluent limitations for point source dischargers whenever such limitations are necessary, as determined by any method in this section, to meet the applicable water quality standards, criteria and secondary values as determined in chs. NR 102 to 105.

NR 106.06(1)(b) (b)

NR 106.06(1)(b)1. 1. Water quality based effluent limitations for toxic and organoleptic substances shall be determined to attain and maintain water quality standards and criteria or secondary values, specified in or determined according to procedures in ch. NR 105, at the point of discharge. Effluent limitations shall be established to protect downstream waters whenever the department has information to make the determinations.

NR 106.06(1)(b)2. 2. For discharges to Green Bay that are north of 44° 32’ 30” north latitude, the cold water community criteria shall apply in effluent limit calculations. For discharges to Green Bay that are south of 44° 32’ 30” north latitude, effluent limitations shall be established in accordance with subd. 1.

NR 106.06(2) (2) Limitations for bioaccumulative chemicals of concern (bccs).

NR 106.06(2)(am) (am) In this subsection, the following definitions apply:

NR 106.06(2)(am)1. 1. “New discharge” means any discharge from a point source that first received WPDES permit coverage from the department after November 6, 2000. “New discharge” 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.

NR 106.06(2)(am)2. 2. “Existing discharge” means any discharge from a point source that currently has a WPDES permit and that has continually had WPDES permit coverage since November 6, 2000 or earlier. “Existing discharge” 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.

NR 106.06(2)(am)3. 3. “Expanded portion of an existing 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. “Expanded portion of an existing discharge” 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.

NR 106.06 Note 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. NR 106.59, to avert a potential public health threat from the failing systems.

NR 106.06(2)(bg) (bg) Notwithstanding any other provisions in chs. NR 102 and 106, mixing zones may not be used for effluent limitations for new discharges of BCCs or for the expanded portion of an existing discharge of BCCs into 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 expanded portion 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.

NR 106.06(2)(br) (br) Effluent limitations for existing discharges of BCCs into 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.

NR 106.06(2)(br)1. 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.

NR 106.06(2)(br)2. 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, if the permittee demonstrates and the department concurs that all the following conditions are met:

NR 106.06(2)(br)2.a. a. For the BCC discharged, the permittee is in compliance with and will continue to comply with the WPDES permit requirements and this chapter.

NR 106.06(2)(br)2.b. 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.

NR 106.06(2)(br)3. 3. Approval Requirements. If the department approves a mixing zone for a BCC under this paragraph, the following requirements shall be met:

NR 106.06(2)(br)3.a. a. The approved mixing zone is no larger than necessary to account for the technical constraints and economic effects identified under subd. 2.

NR 106.06(2)(br)3.b. 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).

NR 106.06(2)(br)3.c. 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.

NR 106.06(2)(br)3.d. d. The permit shall include requirements for an ambient water quality monitoring plan if the department determines these requirements are appropriate to ensure compliance with water quality criteria and consistency with any applicable TMDL.

NR 106.06(2)(br)3.e. e. The permit shall include requirements for an evaluation of alternative means for reducing the BCC from other sources in the watershed if the department determines these requirements are appropriate to ensure compliance with water quality criteria and consistency with any applicable TMDL.

NR 106.06(2)(br)3.f. f. 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.

NR 106.06(2)(br)3.g. g. 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.

NR 106.06(2)(c) (c) Effluent limitations for discharges of BCCs into waters of the Great Lakes system as defined in s. NR 102.12 that are based on human health criteria or secondary values calculated according to procedures in ch. NR 105, shall be also based on the most protective designated use: cold water, public water supply.

NR 106.06(3) (3) Limitations based on acute toxicity.

NR 106.06(3)(a) (a) The department shall establish water quality based effluent limitations to ensure that substances are not present in amounts which are acutely harmful to animals, plants or aquatic life in all surface waters including those portions of the mixing zone normally habitable by aquatic life and effluent channels as required by s. NR 102.04 (1).

NR 106.06(3)(b) (b) To assure compliance with par. (a), the department shall calculate the water quality-based effluent limitation for a substance using the following procedures whenever the background concentration of the substance in the receiving water is less than the acute water quality criterion or secondary value:

NR 106.06(3)(b)1. 1. A limitation shall be calculated using the following conservation of mass equation whenever sufficient site-specific data exist:

Limitation = (WQC) (Qs+(1-f)Qe) - (Qs- fQe) (Cs)
Qe

NR 106.06(3)(b)2. 2. A limitation shall be calculated equal to the final acute value or secondary value as determined in s. NR 105.05 for the respective fish and aquatic life subcategory for which the receiving water is classified.

NR 106.06(3)(b)3. 3. The department shall use the more restrictive calculated effluent limitation derived in subds. 1. and 2. as the water quality-based effluent limitation. If the background concentration of the substance in the receiving water is greater than the acute water quality criterion or secondary value for the substance, then the procedure in sub. (6) shall be used to calculate the limitation.

NR 106.06(3)(bm) (bm) The value of Qs of the receiving water for calculating effluent limitations in par. (a) based upon the acute fish and aquatic life criteria or secondary values developed according to ch. NR 105 shall be determined on a case-by-case basis. In no case may the Qs exceed the average minimum 1-day flow which occurs once in 10 years (1-day Q10) or if the 1-day Q10 flow data is not available, 80% of the average minimum 7-day flow that occurs once in 10 years (7-day Q10).

NR 106.06(3)(c) (c) Except as provided in sub. (2), water quality-based effluent limitations as derived in par. (b) may exceed the final acute value or the secondary acute value within a zone of initial dilution provided that the acute toxicity criteria or secondary acute values are met within a short distance from the point of discharge. A zone of initial dilution shall only be approved if the discharger demonstrates to the department that mixing of the effluent with the receiving water in the zone of initial dilution is rapid and all the following conditions are met:

NR 106.06(3)(c)1. 1. The discharge is not at the water surface or at the shoreline.

NR 106.06(3)(c)2. 2. The discharge does not constitute a significant portion of the streamflow or otherwise dominate the receiving water.

NR 106.06(3)(c)3. 3. The discharge velocity is not less than 3 meters per second (10 feet per second) unless an alternative discharge velocity, which similarly minimizes organism exposure time, is determined appropriate for the specific site.

NR 106.06(3)(c)4. 4. The acute toxicity criteria or secondary acute values shall be met within 10% of the distance from the edge of the outfall structure to the edge of a mixing zone which may be determined in accordance with s. NR 102.05 (3).

NR 106.06(3)(c)5. 5. The acute toxicity criteria or secondary acute values shall be met within a distance of 50 times the discharge length scale in any direction. The discharge length scale is defined as the square root of the cross-sectional area of any discharge outlet. If a multiport diffuser is used, the requirement in this subdivision shall be met for each port using the appropriate discharge length scale for that port.

NR 106.06(3)(c)6. 6. The acute toxicity criteria or secondary acute values shall be met within a distance of 5 times the local water depth in any horizontal direction from any discharge outlet. The local water depth is defined as the natural water depth (existing prior to the installation of the discharge outlet) prevailing under the mixing zone design conditions for the site.

NR 106.06(3)(d) (d) For toxic substances with water quality criteria related to one or more other water quality parameters, effluent limitations shall be calculated using the effluent value for the water quality parameter. Water quality parameters include, but are not limited to, pH, temperature and hardness.

NR 106.06(3)(e) (e) The department shall use the methodology in s. NR 106.07 (3) to (5) to express water quality-based effluent limitations derived in this subsection as permit effluent limitations.