Chapter NR 203

NR 203.10(3)(d) (d) Informational and clarifying questions may be directed at persons making oral statements through the hearing examiner. In no instance shall cross-examination be allowed at the hearing.

NR 203.10(3)(e) (e) Time limits may be placed on individual oral statements by the hearing examiner in order to insure an opportunity for all persons present to make statements in a reasonable period of time and to prevent undue repetition.

NR 203.10(3)(f) (f) The hearing examiner, in his or her discretion, may limit the number of representatives that may make oral statements on behalf of any individual organized group.

NR 203.10(3)(g) (g) Persons proposing to make oral statements at a hearing may be scheduled at times certain by the hearing examiner when necessary to ensure maximum participation and allotment of adequate time for oral statement. Advanced oral statement scheduling may not be a bar to unscheduled oral or written statements at the hearing.

NR 203.10(3)(h) (h) Multiple copies of all written statements are encouraged, however, no more than one legible copy of a written statement shall be required to be submitted to the hearing examiner.

NR 203.10(4) (4) Contempt. Contemptuous conduct at a hearing shall be grounds for exclusion from the hearing by the hearing examiner.

NR 203.10(5) (5) Report of public participation. The hearing examiner shall make a written report of public participation during the hearing process. Copies of the report may be obtained at reasonable cost by request to the Bureau of Legal Services, P. O. Box 7921, Madison, Wisconsin 53707.

NR 203.10 History History: Cr. Register, January, 1974, No. 217, eff. 2-1-74; am. (5), Register, September, 1984, No. 345, eff. 10-1-84; correction in (2) and (3) (f) made under s. 13.93 (2m) (b) 5., Stats., Register, September, 1984, No. 345; am. (1), (3) (a), (b) and (g), Register, February, 1996, No. 482, eff. 3-1-96.

NR 203.11 NR 203.11 Transcripts.

NR 203.11(1) (1) Method and copies. Public informational hearings will be transcribed either stenographically or electronically. A typed copy of the transcript will be furnished to all persons, upon request, at a reasonable cost to be determined by the department.

NR 203.11(2) (2) Corrections. Any person, within 7 days of the date of mailing of the transcript, may file with the hearing examiner a notice in writing, claimed errors contained therein. Corrections of claimed errors shall be made at the discretion of the hearing examiner.

NR 203.11 History History: Cr. Register, January, 1974, No. 217, eff. 2-1-74.

subch. III of ch. NR 203 Subchapter III — Permit Actions

NR 203.12 NR 203.12 Final determination to issue or deny a discharge permit. The department shall issue or deny any permit for a discharge under ch. 283, Stats., and may modify any terms and conditions of a draft permit based on consideration of required standards, the permit application, statements by the public or by government agencies, and any other pertinent information.

NR 203.12 History History: Cr. Register, January, 1974, No. 217, eff. 2-1-74; CR 14-027: am. Register July 2015 No. 715, eff. 8-1-15.

NR 203.13 NR 203.13 Notice of final determination to issue or deny a permit to discharge.

NR 203.13(1) (1) Form. The notice of final determination under s. NR 203.12 shall be in writing, with a title identifying the subject of the notice and the number of the permit.

NR 203.13(2) (2) Content. The notice of final determination shall contain the following information:

NR 203.13(2)(a) (a) The name, address, and phone number of the governmental unit issuing the notice.

NR 203.13(2)(b) (b) The name and address of the applicant for a permit, or the class or category of discharger covered by a general permit.

NR 203.13(2)(c) (c) A brief description of the activities or operations which result in the discharge described in the proposed permit or permit application.

NR 203.13(2)(d) (d) The name of the waterway to which the discharge is to be made, a general statement of the location of such proposed discharge and a statement whether such discharge is a new or existing discharge.

NR 203.13(2)(e) (e) The purpose and the statutory authority for the permit.

NR 203.13(2)(f) (f) A statement of the final determination to issue or deny a permit for the discharge described in the application.

NR 203.13(2)(g) (g) A statement of any significant changes which have been made from terms and conditions in the draft permit. This statement shall contain all of the following:

NR 203.13(2)(g)1. 1. A description and response to significant comments on the draft permit.

NR 203.13(2)(g)2. 2. Explanation of the reasons for change between the draft and final permit.

NR 203.13(2)(h) (h) The date of permit issuance or denial if the permit is issued, the date it becomes effective, and the length of the permit period.

NR 203.13(2)(i) (i) A brief description of the procedures available for adjudicative review.

NR 203.13(2)(j) (j) The address and phone number where interested persons may obtain further information and the department’s response to comments, and inspect and copy forms and related documents.

NR 203.13(2)(k) (k) A statement that reasonable costs will be charged for copies of all information excluding public notices and fact sheets.

NR 203.13(3) (3) Notification. The following persons and agencies shall be mailed notes of final determination as described in sub. (2):

NR 203.13(3)(a) (a) The applicant or applicants for a permit.

NR 203.13(3)(b) (b) All persons filling out appearance slips at the public informational hearing, or who submitted written comments with respect to issuance of the permit even if a public informational hearing was not held.

NR 203.13(3)(c) (c) US EPA.

NR 203.13(3)(d) (d) United States army corps of engineers.

NR 203.13(3)(e) (e) Other states potentially affected by the proposed discharge.

NR 203.13(3)(f) (f) The city, town or village where the proposed discharge is located for individual permits.

NR 203.13(3)(g) (g) The county and regional planning commission of the area where the proposed discharge is located.

NR 203.13(3)(h) (h) Any other agency or unit of government interested in the proposed discharge.

NR 203.13(3)(i) (i) All individuals and groups upon request or on a formal department mailing list. Requests to be placed on the mailing list shall be directed to the Department of Natural Resources, WPDES Permits, P.O. Box 7921, Madison, Wisconsin 53707.

NR 203.13 History History: Cr. Register, January, 1974, No. 217, eff. 2-1-74; am. (2) (b), (c) and (3) (a), (f), (g) and (i), Register, September, 1984, No. 345, eff. 10-1-84; am. (2) (g), (3) (c) and (i), Register, February, 1996, No. 482, eff. 3-1-96; CR 09-123: am. (2) (g), (j) and (3) (b), Register July 2010 No. 655, eff. 8-1-10; CR 14-027: am. (1) Register July 2015 No. 715, eff. 8-1-15.

NR 203.135 NR 203.135 Modification, revocation and reissuance, or termination of permits.

NR 203.135(1) (1) General. The department may modify, revoke and reissue, or terminate a permit upon request of any interested person, including the permittee, or upon the department’s initiative. Permits may only be modified, revoked and reissued, or terminated for one of the causes listed in s. NR 203.136. If cause exists, the department may request an updated application if necessary.

NR 203.135(2) (2) Notification. Whenever, on the basis of any information available to it, the department finds that there is cause under s. NR 203.136 for modifying, revoking and reissuing, or terminating a permit, in whole or in part, the department shall notify the permittee by certified mail or personal service of its intended permit action. However, if the department proposes to modify a permit to authorize a substantial change to a nutrient management plan of a concentrated animal feeding operation, the department may notify the permittee by email. When notifying the permittee of a proposal to modify, revoke and reissue, or terminate the department shall specify the information upon which the department relies, and if the department intends to modify the permit, shall explain the modifications which the department intends to make in the permit.

NR 203.135(3) (3) Requests. Permits may be modified, revoked and reissued, or terminated at the request of any interested person, including the permittee. All requests for a modification, revocation and reissuance, or termination by a permittee or interested person shall be in writing and shall contain facts or reasons supporting the request.

NR 203.135(4) (4) Denial. If the department decides the request is not justified, the department shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, revocation and reissuance, or termination are not subject to public notice, comment, informational hearings or adjudicatory hearings under s. 283.63, Stats.

NR 203.135(5) (5) Permit action procedures.

NR 203.135(5)(a) (a) If the department tentatively decides to modify or revoke and reissue a permit the department shall prepare a draft permit under s. NR 200.11 incorporating the proposed changes. For a permit modification, the department may request additional information and may require the submission of an updated application. For revoked and reissued permits, the department shall require the submission of a new application. The department shall follow the public notice, comment and hearing procedures in ch. NR 203 with respect to its intention to modify, or revoke and reissue a permit, except as otherwise provided in this section.

NR 203.135(5)(b) (b) In a permit modification only those conditions to be modified shall be reopened when a new draft permit is prepared. All other aspects of the existing permit shall remain in effect for the duration of the existing permit. When a permit is revoked and reissued, the entire permit is reopened just as if the permit had expired and was being reissued for a new term. During any revocation and reissuance proceeding the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.

NR 203.135(5)(c) (c) Minor modifications that qualify for a procedural exemption under s. NR 203.015 are not subject to the requirements of this section, and the permit may be modified without a draft permit or public review.

NR 203.135(6) (6) Termination.

NR 203.135(6)(a) (a) Except as provided in paragraph (b), if the department tentatively decides to terminate a permit, the department shall issue a notice of intent to terminate. A notice of intent to terminate is subject to the same procedures as a draft permit prepared under s. NR 200.11.

NR 203.135(6)(b) (b) If the department tentatively decides to terminate a permit due to permanent elimination of a discharge that is due to a facility closure, connection to a publicly owned treatment works or some other cause, the department may terminate the permit by written notice to the permittee. The termination of the permit shall be effective 30 days after the notice is sent, unless the permittee files a written objection of the termination with the department within the 30 day time period. If a notice of objection is filed by the permittee, then the department shall follow the procedures for preparation of a draft permit under s. NR 200.11.

NR 203.135(7) (7) CAFO Permits.

NR 203.135(7)(a) (a) If the department proposes to modify a permit to authorize a substantial change to a nutrient management plan of a concentrated animal feeding operation (CAFO), the department is not required to provide notice of the substantial change under s. 283.39 (1) (a), Stats. The department shall provide a 14-day period, from the date on which notice is provided on the department’s Internet Web site in accordance with s. 283.39 (1) (d), Stats., for written comments on a proposed modification to authorize a substantial change to a nutrient management plan. A petition for an informational hearing on a proposed permit modification to authorize a substantial change to a nutrient management plan of a concentrated animal feeding operation shall be filed within 14 days of the date notice is provided under s. 283.39 (1) (d), Stats.

NR 203.135(7)(b) (b) Incorporation of a nutrient management plan in a CAFO general permit when a CAFO obtains coverage under a general permit is not a permit modification subject to the notice and public notice procedures in the subsection.

NR 203.135 History History: CR 14-027: cr. Register July 2015 No. 715, eff. 8-1-15.

NR 203.136 NR 203.136 Causes for a modification, revocation and reissuance, or termination.

NR 203.136(1) (1) Modification. The department may modify a permit for any of the following causes:

NR 203.136(1)(a) (a) Changes to facility or discharge. There are material and substantial alterations or additions to the permitted facility or activity, including changes in sludge use or disposal which occurred after permit reissuance which would justify the application of different permit conditions or the addition of permit conditions.

NR 203.136(1)(b) (b) New information. The department has received new information, other than revised regulations, guidance or test methods, that was not available at the time of permit issuance or reissuance and that would have justified different permit terms or conditions.

NR 203.136(1)(c) (c) New regulations or standards. After permit issuance or reissuance, the standards or regulations have changed and a permittee has requested a change in a timely manner, or a judicial decision stays or remands an applicable standard or regulation that requires a change to the permit. For purposes of this paragraph, a changed standard or regulation means a change in an effluent limitation guideline, a change in secondary treatment regulations, or a change in a water quality standard that has been approved by EPA.

NR 203.136(1)(d) (d) Judicial decision. A decision from an administrative law judge or judicial court, or a signed stipulation to resolve a s. 283.63, Stats., contested case hearing, specifies a change to a permit term or condition that was the subject of the contested case hearing or judicial proceeding.

NR 203.136(1)(e) (e) Compliance schedules. The department determines good cause exists for modification of the compliance schedule such as events over which the permittee has little or no control and for which there is no reasonably available remedy. The department may also modify a compliance schedule to reflect time lost during construction of an innovative or alternative facility. The compliance schedule may not be modified to extend beyond the deadlines established under state and federal law.

NR 203.136(1)(f) (f) Variances. If a permittee has filed a variance request to an effluent limitation or thermal discharge, or a variance from a technology based effluent limit based on the presence of fundamentally different factors from those on which the effluent limitations guideline was based.

NR 203.136(1)(g) (g) Toxics. When required to incorporate an applicable toxic effluent standard or prohibition.

NR 203.136(1)(h) (h) Reopener. When required by a provision in the permit that requires a modification or reopening of the permit.

NR 203.136(1)(i) (i) Net limits. Upon the request of a permittee for an adjustment to a technology based limitation based on pollutants in the intake water, provided the permittee qualifies for the limit adjustment, or the department may modify a technology based limitation based on an intake credit if the permittee no longer qualifies for the adjustment.

NR 203.136(1)(j) (j) Pretreatment. When necessary to establish a compliance schedule for development of a pretreatment program.

NR 203.136(1)(k) (k) Failure to notify. Upon failure of the department to notify another state whose waters may be affected by the discharge.

NR 203.136(1)(L) (L) Non-limited pollutants. When the level of discharge of any pollutant which is not limited in the permit exceeds the level which can be achieved by the technology-based treatment requirements applicable to the permittee.

NR 203.136(1)(m) (m) Errors. To correct technical mistakes such as errors in calculations or mistakes in applying pertinent regulations to permit terms and conditions.

NR 203.136(1)(n) (n) Unable to achieve effluent limitation. Where the permittee has installed a treatment technology considered by the permit writer in setting effluent limitations, and where the permittee has properly operated and maintained its treatment facilities, but nevertheless has been unable to achieve compliance with those effluent limitations, the department may modify the limitations to reflect the level of pollutant control actually achieved, but in no case be less stringent than a subsequently promulgated effluent limitations guideline.

NR 203.136(1)(o) (o) Land application plans. When required by a permit condition to incorporate a land application plan for beneficial reuse for sewage sludge or other biosolids, to revise an existing land application plan or to add a land application.

NR 203.136(1)(p) (p) Transfer of permit. To reflect a change in ownership or operator of a permitted facility. A transfer of a permit to a new owner or operator is subject to all of the following procedures:

NR 203.136(1)(p)1. 1. A permit may only be transferred after notification of the department of the proposed new permittee. The modification request shall include the “Facility Information” section of the permit application or equivalent.

NR 203.136(1)(p)2. 2. The current permittee and proposed new permittee shall submit to the department a written agreement that specifies the date of transfer and acceptance of responsibility for compliance with the permit and liability for any violations.

NR 203.136(1)(p)3. 3. The modification is exempt from public notice procedures under s. NR 203.015, if the department determines no other change to the permit is necessary.

NR 203.136(1)(q) (q) Other. One of the causes for termination in sub. (3) exists and the department determines that a modification is more appropriate than termination.

NR 203.136(2) (2) Revocation and reissuance. The department may revoke and reissue a permit for any of the following causes:

NR 203.136(2)(a) (a) For any of the causes for a modification listed in sub. (1) provided the permittee agrees to the revocation and reissuance.

NR 203.136(2)(b) (b) Based on one of the causes for termination in sub. (3) if the department determines that a revocation and reissuance is the appropriate action to take.

NR 203.136(3) (3) Termination. The department may terminate a permit, or deny an application for reissuance, for any of the following causes:

NR 203.136(3)(a) (a) Substantial noncompliance by the permittee with any condition of a permit.

NR 203.136(3)(b) (b) Failure by the permittee in the permit application or during the permit issuance process to fully disclose all relevant facts, or the permittee’s misrepresentation of any relevant facts at any time.

NR 203.136(3)(c) (c) A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification, revocation and reissuance, or termination.

NR 203.136(3)(d) (d) A change in any condition that requires either a temporary or permanent reduction or elimination of any discharge or sludge use or disposal practice regulated by the permit.

NR 203.136 Note Note: Refer to 40 CFR 122.62, 122.63, and 122.64 for federal regulations on the causes for a permit modification, revocation and reissuance, or termination.