Chapter NR 211

NR 211.13(7) (7) Where the department has not required the POTW to develop a pretreatment program, the POTW may not be required to develop a pretreatment program as a precondition to obtaining authorization to give removal credits. The POTW shall, however, be required to comply with the other conditions of sub. (1) (b).

NR 211.13 History History: Cr. Register, September, 1986, No. 369, eff. 10-1-86; cr. (1) (b) 6., (2) (e), (5) (a) 7., (6) (d) 4. to 6., am. (2) (a), (5) (a) 5. and 6., r. and recr. (2) (d) 2. to 4. and (6) (d) 3., Register, March, 1992, No. 435, eff. 4-1-92; CR 13-006: r. and recr. (2) (e) 2. b. Register January 2014 No. 697, eff. 2-1-14.

NR 211.14 NR 211.14 Fundamentally different factors variances.

NR 211.14(1) (1) Any interested person believing that factors relating to an industrial user are fundamentally different from the factors considered during development of a categorical pretreatment standard applicable to that industrial user, and that the existence of those factors justifies a different discharge limit from that specified in the applicable categorical pretreatment standard may request a fundamentally different factors variance under this section. Such a variance request may be initiated by EPA.

NR 211.14(2) (2) 

NR 211.14(2)(a) (a) A request for a fundamentally different factors variance may be approved only if:

NR 211.14(2)(a)1. 1. Factors relating to the industrial user which would be affected by the variance are fundamentally different from the factors considered in establishing the applicable categorical pretreatment standard;

NR 211.14(2)(a)2. 2. There is an applicable categorical pretreatment standard which specifically controls the pollutant for which alternative limits have been proposed; and

NR 211.14(2)(a)3. 3. The procedural requirements of this section have been met.

NR 211.14(2)(b) (b) A request for a fundamentally different factors variance to establish limits less stringent than required by the categorical pretreatment standard may be approved only if:

NR 211.14(2)(b)1. 1. The alternative limit requested is no less stringent than justified by the fundamental difference; and

NR 211.14(2)(b)2. 2. The alternative limit will not result in a violation of any prohibited discharge standard set forth in or established under s. NR 211.10;

NR 211.14(2)(b)3. 3. The alternative limit will not result in an environmental impact not related to water quality which would be fundamentally more adverse than the impact considered during development of the categorical pretreatment standard; and

NR 211.14(2)(b)4. 4. Compliance with the applicable categorical pretreatment standard would result in either a removal cost wholly out of proportion to the removal cost considered during development of the standard or an environmental impact not related to water quality which would be fundamentally more adverse than the impact considered during development of the standard.

NR 211.14(2)(c) (c) A request for a fundamentally different factors variance to establish limits more stringent than required by the categorical pretreatment standard may be approved only if:

NR 211.14(2)(c)1. 1. The alternative limit requested is no more stringent than justified by the fundamental difference; and

NR 211.14(2)(c)2. 2. Compliance with the alternative limit would not result in either a removal cost wholly out of proportion to the removal cost considered during development of the standard or an environmental impact not related to water quality which would be fundamentally more adverse than the impact considered during the development of the standard.

NR 211.14(3) (3) Factors considered fundamentally different are:

NR 211.14(3)(a) (a) The nature or quality of pollutants contained in the industrial user’s raw process wastewater;

NR 211.14(3)(b) (b) The volume of the industrial user’s process wastewater and the volume of effluent discharged;

NR 211.14(3)(c) (c) The environmental impact, other than that related to water quality, of control and treatment of the industrial user’s raw process wastewater;

NR 211.14(3)(d) (d) The energy requirements of the application of control and treatment technology;

NR 211.14(3)(e) (e) Age, size, and configuration of the industrial user’s equipment, facilities, production processes and process changes, availability of land, and engineering aspects of the application of control technology; and

NR 211.14(3)(f) (f) The cost of compliance with required control technology.

NR 211.14(4) (4) Factors which may not be considered fundamentally different are:

NR 211.14(4)(a) (a) The feasibility of installing the required pretreatment equipment within the time allowed by the categorical pretreatment standard;

NR 211.14(4)(b) (b) The assertion that the standard cannot be achieved with the appropriate pretreatment equipment installed, if such assertion is not based on factors listed in sub. (3);

NR 211.14(4)(c) (c) The industrial user’s ability to pay for the required pretreatment equipment; or

NR 211.14(4)(d) (d) The impact of a discharge on the quality of the POTW’s receiving water.

NR 211.14(5) (5) Requests for a variance shall be submitted in writing to the department within 180 days after the effective date of the federal categorical pretreatment standard. If the industrial user has requested a categorical determination under s. NR 211.33, the request for a fundamentally different factors variance may be delayed to within 30 days after the final decision on the category determination has been made. Variance requests shall include the following:

NR 211.14(5)(a) (a) The name and address of the person making the request;

NR 211.14(5)(b) (b) Identification of the interest of the person making the request;

NR 211.14(5)(c) (c) Identification of the POTW receiving the indirect discharge from the industrial user for which the variance is requested;

NR 211.14(5)(d) (d) Identification of the categorical pretreatment standards applicable to the industrial user;

NR 211.14(5)(e) (e) A list of each pollutant for which an alternative discharge limit is sought;

NR 211.14(5)(f) (f) The alternative discharge limits being proposed for each pollutant identified in par. (e);

NR 211.14(5)(g) (g) A description of the industrial user’s existing pretreatment equipment;

NR 211.14(5)(h) (h) A schematic flow chart of the industrial user’s water system including water supply, process wastewater systems, and points of discharge; and

NR 211.14(5)(i) (i) A statement of facts clearly establishing why the variance request should be approved, including detailed supporting data, documentation and evidence necessary to fully evaluate the merits of the request.

NR 211.14(6) (6) The department will act only on written requests for variances which contain all of the information required in sub. (5). Persons who submit incomplete requests will be notified that the requests are deficient and will be given 30 days to correct the deficiency. If the deficiency is not corrected within 30 days, or within an extended period if allowed by the department, the request for the variance shall be denied.

NR 211.14(7) (7) The department shall publish a notice of its receipt of a request for a fundamentally different factors variance and shall mail copies of the notice to the affected industrial user and any other interested party. The public notice shall be published as a Class I notice under ch. 985, Stats., in a newspaper of general circulation in the area in which the industrial user is located. The department shall allow a 30-day period for public review and comment.

NR 211.14(8) (8) If the department finds that fundamentally different factors do not exist, the department shall deny the request. If the department finds that fundamentally different factors do exist, the request and findings shall be forwarded to EPA for EPA’s approval, disapproval, or revision and approval of the variance. A copy of the final determination shall be sent to the person requesting the variance, and to the affected industrial user and POTW.

NR 211.14 History History: Cr. Register, July, 1983, No. 331, eff. 8-1-83.

NR 211.15 NR 211.15 Monitoring and reporting requirements.

NR 211.15(1) (1) Within 180 days after the effective date of a categorical pretreatment standard as published in the federal register, or 180 days after the final decision in a request for category determination under s. NR 211.33, whichever is later, industrial users subject to that standard which are not new sources and which are currently discharging or scheduled to discharge into a POTW shall submit to the control authority a report containing the information listed in pars. (a) to (g), except when reports containing this information have already been submitted to the control authority for other purposes. At least 90 days before the commencement of discharge, new sources and sources that become industrial users subsequent to the promulgation of an applicable categorical pretreatment standard shall submit a report to the control authority which at a minimum contains the information listed in pars. (a) to (e). New sources shall estimate the information required by pars. (d) and (e). New sources shall also include in this report information regarding the method of pretreatment that will be used to meet the applicable pretreatment standards. The control authority may require the industrial user to submit any additional information which the control authority finds is necessary to determine the industrial user’s ability to meet the applicable pretreatment standards.

NR 211.15(1)(a) (a) The name, address, and location of the industrial user and the name of the owner or operator.

NR 211.15(1)(b) (b) A list of any environmental control permits held by or for the industrial user.

NR 211.15(1)(c) (c) The nature and average rate of production and the standard industrial classification of the processes carried out by the industrial user. This description shall include a schematic diagram which indicates points of discharge to the POTW from the processes regulated by the applicable categorical pretreatment standard.

NR 211.15(1)(d) (d) The measured average and maximum flows from the industrial user to the POTW, in gallons per day, from regulated process streams and other streams as necessary to allow use of the combined wastestream formula of s. NR 211.12. When approved by the control authority based on considerations of cost or accessibility, the average and maximum flow of the discharge may be estimated by verifiable techniques.

NR 211.15(1)(e) (e) The nature and concentration of pollutants in the discharge from each of the industrial user’s regulated processes and an identification of the applicable categorical pretreatment standards and pretreatment requirements. The nature and concentration of pollutants in each discharge shall be determined in accordance with subds. 1. to 5. In cases where the standard requires compliance with a best management practice or pollution prevention alternative, the user shall submit documentation as required by the control authority or the applicable standard to determine compliance.

NR 211.15(1)(e)1. 1. Sampling and analysis shall be performed to identify the concentration or mass of regulated pollutants in the discharge from each regulated process, according to the requirements of the applicable categorical pretreatment standard and the control authority. Both daily maximum and average values shall be reported. Samples shall be representative of daily operations. A minimum of 4 grab samples per day shall be used for pH, cyanide, total phenols, oil and grease, sulfide and volatile organics. All other samples shall be 24-hour flow proportional composites, unless time proportional or grab sampling is authorized by the control authority. Where alternative sampling is authorized by the control authority, the samples shall be representative of the discharge and the decision to allow alternative methods shall be documented in the industrial user’s file. Multiple grab samples collected during a 24-hour period may be composited prior to analysis provided appropriate protocols specified in ch. NR 219, and in EPA and department guidance are followed. Samples for cyanide, total phenols and sulfides may be composited in the laboratory or in the field. Samples for volatile organics and oil and grease may be composited in the laboratory. Other samples may be composited using approved methodologies as authorized by the control authority.

NR 211.15(1)(e)2. 2. The industrial user shall collect and analyze a minimum of one representative sample to compile the data necessary for this subsection. Sampling shall be performed during full facility production when substances subject to regulation, including those in batch or periodic discharges, are likely to be present in maximum concentrations or quantities for the reporting period. The control authority may require more frequent monitoring when necessary to assess compliance with the applicable pretreatment standards and requirements. If an industrial user samples any pollutant more frequently than required by the control authority and analyzes these samples according to sub. (8), the results of this monitoring shall be included in the report.

NR 211.15(1)(e)3. 3. Samples shall be taken at the discharge from the regulated process, or at the discharge from pretreatment facilities provided that wastewaters that are not regulated by the applicable categorical pretreatment standard are not mixed with the regulated waste-stream prior to the sampling point. Where sampling according to this provision is not feasible, the department may consider allowing alternative means of sampling to be used to determine compliance with the applicable categorical pretreatment standard at the point of discharge from the regulated process. If streams which are not regulated by the applicable categorical pretreatment standard are mixed with the regulated stream prior to the sampling point, the industrial user shall measure the flows and concentrations necessary to allow use of the combined wastestream formula of s. NR 211.12 in order to evaluate compliance with the pretreatment standards. Where an alternative concentration or mass limit has been calculated in accordance with s. NR 211.12 this adjusted limit along with the supporting data shall be submitted to the control authority.

NR 211.15(1)(e)4. 4. Representative historical data may be used in the initial baseline report with the approval of the control authority.

NR 211.15(1)(e)5. 5. The report shall indicate the time, date, and place of sampling, method of analysis, and shall certify that sampling and analysis are representative of normal work cycles and expected pollutant discharges to the POTW.

NR 211.15(1)(f) (f) A statement indicating whether the applicable categorical pretreatment standards are being met on a consistent basis and, if not, whether additional operation and maintenance, or additional pretreatment, or both, is required in order for the industrial user to meet the applicable categorical pretreatment standards. The statement shall be reviewed by an authorized representative of the industrial user and certified by a qualified professional.

NR 211.15(1)(g) (g) If additional pretreatment or operation and maintenance is needed, the industrial user shall submit the shortest schedule by which additional treatment or operation and maintenance can be provided. The completion date resulting from this schedule may not be later than the compliance date established for the applicable categorical pretreatment standard. The schedule shall specify dates for the commencement and completion of the major events necessary to provide the additional pretreatment or operation and maintenance. The length of time between any 2 dates may not exceed 9 months.

NR 211.15(1)(h) (h) Where the industrial user’s discharge limit has been modified by a fundamentally different factors variance (s. NR 211.14), a removal credit (s. NR 211.13), or the combined wastestream formula (s. NR 211.12) at the time the report is submitted, the information required in pars. (f) and (g) shall pertain to the modified limit. Revisions to the information submitted under pars. (f) and (g) may be required by the department where the industrial user’s discharge limit is modified at a later date.

NR 211.15(2) (2) Not later than 14 days following each date in the schedule required in sub. (1) (g), the industrial user shall submit to the control authority a progress report, including at a minimum a statement of whether the required event was completed by the specified date and if not, the reason for delay, the steps being taken to return to the schedule, and the date on which the required event will be completed.

NR 211.15(3) (3) A report shall be submitted to the control authority within 90 days after the date for final compliance with applicable categorical pretreatment standards or, for new sources and sources that become industrial users subsequent to the compliance date of an applicable categorical pretreatment standard, the date on which wastewater is first discharged to the POTW. The report shall include the information required by sub. (1) (d) to (f). For industrial users subject to equivalent mass or concentration limits established by the control authority according to s. NR 211.11 (3), this report shall contain a reasonable measure of the industrial user’s long-term production rate. For all other industrial users subject to categorical pretreatment standards expressed in terms of allowable pollutant discharge per unit of production or other measure of operation, this report shall include the industrial user’s actual production or other measure of operation during the appropriate sampling period.

NR 211.15(4) (4) 

NR 211.15(4)(a) (a) After the compliance date for an applicable categorical pretreatment standard, industrial users, except those meeting the requirements in par. (c) or (d), shall submit semi-annual reports to the control authority. New sources and sources that become industrial users subsequent to the compliance date of an applicable categorical pretreatment standard shall submit the semi-annual reports to the control authority after commencement of discharge to the POTW. The report shall include the information required by sub. (1) (d) and (e) except that the control authority may require more detailed reporting of flows and alternative sampling techniques may be used if they result in samples that are representative of the user’s discharge and are approved by the control authority and documented in the industrial user’s file. For industrial users subject to equivalent mass or concentration limits established by the control authority according to s. NR 211.11 (3), this report shall contain a reasonable measure of the industrial user’s long-term production rate. For all other industrial users subject to categorical pretreatment standards expressed in terms of allowable pollutant discharge per unit of production or other measure of operation, this report shall include the industrial user’s actual production or other measure of operation during the reporting period. For all wastes subject to categorical pretreatment standards that have been shipped off-site for disposal, these reports shall include the category, manufacturing process, volume and destination of such wastes. In cases where the pretreatment standard requires compliance with best management practices (or pollution prevention alternative) the user shall submit documentation needed to determine the compliance status of the user. These reports shall be submitted during June and December unless otherwise specified by the control authority. Industrial users shall submit these reports more frequently if required to do so by the control authority, or the department, or the applicable categorical pretreatment standards.

NR 211.15(4)(b) (b) The control authority may authorize a monitoring waiver for individual pollutants for an industrial user subject to a categorical standard if the user has demonstrated through sampling and other technical factors that the pollutant is neither present nor expected to be present in the discharge, or is present only at background levels from intake water and without any increase in the pollutant due to activities of the industrial user. This authorization is subject to the following conditions:

NR 211.15(4)(b)1. 1. The control authority may authorize a waiver where a pollutant is determined to be present solely due to sanitary wastewater discharged from the facility provided that the sanitary wastewater is not regulated by an applicable categorical standard and otherwise includes no process wastewater.

NR 211.15(4)(b)2. 2. The monitoring waiver is valid only for the duration of the effective permit or equivalent control mechanism, but in no case longer than 5 years. The user shall submit a new request for the waiver before the waiver may be granted for each subsequent control mechanism or 5 year period.

NR 211.15(4)(b)3. 3. In making a demonstration that a pollutant is not present, the industrial user shall provide data from at least one sampling of the facility’s process wastewater prior to any treatment present at the facility that is representative of all wastewater from all processes. The request for a monitoring waiver shall include the certification statement and be signed in accordance with s. NR 211.15 (10) (b). Non-detectable sample results may only be used as a demonstration that a pollutant is not present if the EPA approved method from 40 CFR Part 136 with the lowest minimum detection level for that pollutant was used in the analysis.

NR 211.15(4)(b)4. 4. Any grant of the monitoring waiver by the control authority shall be included as a condition in the user’s control mechanism. The reasons supporting the waiver and any information submitted by the user in its request for the waiver shall be maintained by the control authority for 3 years after expiration of the waiver.

NR 211.15(4)(b)5. 5. Upon approval of the monitoring waiver and revision of the user’s control mechanism by the control authority, the industrial user shall certify on each report with the statement below, that there has been no increase in the pollutant in its wastestream due to activities of the industrial user:

Based on my inquiry of the person or persons directly responsible for managing compliance with the applicable pretreatment standards, I certify that, to the best of my knowledge and belief, there has been no increase in the level of [list pollutant(s)] in the wastewaters due to the activities at the facility since filing of the last periodic report.

NR 211.15(4)(b)6. 6. In the event that a waived pollutant is found to be present or is expected to be present based on changes that occur in the user’s operations, the user shall immediately comply with the monitoring requirements of par. (a) or other more frequent monitoring requirements and notify the control authority.

NR 211.15(4)(b)7. 7. This paragraph does not supersede certification processes and requirements established in categorical pretreatment standards, except as otherwise specified in the categorical pretreatment standard.

NR 211.15(4)(c) (c) The control authority may reduce the frequency of the reports required under par. (a) to no less than once per year, unless required more frequently by the pretreatment standard or the department, where the industrial user meets all of the following conditions:

NR 211.15(4)(c)1. 1. The industrial user’s total categorical wastewater flow does not exceed any of the following:

NR 211.15(4)(c)1.a. a. 0.01 percent of the design dry weather hydraulic capacity of the POTW, or 5,000 gallons per day, whichever is smaller, as measured by a continuous effluent flow monitoring device unless the industrial user discharges in batches;

NR 211.15(4)(c)1.b. b. 0.01 percent of the design dry weather organic treatment capacity of the POTW; and

NR 211.15(4)(c)1.c. c. 0.01 percent of the maximum allowable headworks loading for any pollutant regulated by the applicable categorical pretreatment standard for which approved local limits were developed by a POTW in accordance with s. NR 211.10 (3);

NR 211.15(4)(c)2. 2. The industrial user has not been in significant noncompliance, as defined in s. NR 211.23 (1) (j), at any time in the past two years;

NR 211.15(4)(c)3. 3. The industrial user does not have daily flow rates, production levels, or pollutant levels that vary so significantly that decreasing the reporting requirement would result in data that are not representative of conditions occurring during the reporting period;

NR 211.15(4)(c)4. 4. The industrial user shall notify the control authority immediately of any changes at its facility causing it to no longer meet conditions of subd. 1. or 2. Upon notification, the industrial user shall immediately begin complying with the minimum reporting requirements in par. (a); and

NR 211.15(4)(c)5. 5. The control authority shall retain documentation to support the determination that a specific industrial user qualifies for reduced reporting requirements under this paragraph for a period of 3 years after the expiration of the term of the control mechanism.

NR 211.15(4)(d) (d) The control authority may determine that an industrial user subject to categorical pretreatment standards is a non-significant categorical industrial user rather than a significant industrial user on a finding that all of the following conditions are met:

NR 211.15(4)(d)1. 1. The industrial user never discharges more than 100 gallons per day of total categorical wastewater, excluding sanitary, non-contact cooling and boiler blowdown wastewater, unless specifically included in the pretreatment standard.

NR 211.15(4)(d)2. 2. The industrial user has consistently complied with all applicable categorical pretreatment standards and requirements.

NR 211.15(4)(d)3. 3. The industrial user never discharges any untreated concentrated wastewater.

NR 211.15(4)(d)4. 4. The industrial user annually submits the following certification statement signed in accordance with the signatory requirements of s. NR 211.15 (10) along with any additional information required by the control authority:

Based on my inquiry of the person or persons directly responsible for managing compliance with pretreatment standards, I certify that, to the best of my knowledge and belief that during the period from [insert month, day, year] to [insert month, day, year], the facility described as [insert facility name] met the definition of a non-significant categorical industrial user as described in s. NR 211.15 (4) (d); the facility complied with all applicable pretreatment standards and requirements during this reporting period; and the facility never discharged more than 100 gallons of total categorical wastewater on any given day during this reporting period. This compliance certification is based upon the following information: [list information supporting the facility’s classification as a non-significant categorical industrial user].

NR 211.15 Note Note: The final bracketed material was not included in rule CR 13-006, but it is added by DNR for informational purposes.

NR 211.15(5) (5) Significant industrial users which are not subject to categorical pretreatment standards and which discharge to a POTW with a pretreatment program shall submit reports to the control authority at least twice per year. At a minimum, these reports shall describe the flow rate and concentration of pollutants in wastewater discharges, and shall be based on sampling and analysis performed in the period covered by the report. Sampling shall be conducted at the appropriate sampling location and shall be representative of conditions during the reporting period. If a user monitors any regulated pollutant more frequently than required by the control authority using procedures prescribed in sub. (8), the results of this monitoring shall be included in the report. In cases where a local limit requires compliance with best management practices or pollution prevention alternative, the user shall submit documentation required by the control authority to determine the compliance status of the user. Other industrial users not subject to categorical pretreatment standards shall submit reports according to the requirements of the control authority.

NR 211.15(6) (6) The industrial user shall notify the control authority, and the POTW if the POTW is not the control authority, in advance of any substantial change in the volume or character of the pollutants in the discharge, including changes in listed or characteristic hazardous wastes for which the industrial user has submitted initial notification according to s. NR 211.17. Industrial users shall immediately notify the POTW of any discharge that could cause problems at the POTW, such as any slug loading in violation of s. NR 211.10 (2) or of any changes at the facility affecting the potential for a slug discharge and the need for a slug control plan as required by s. NR 211.235 (4) (a).