Section 283.11. State and federal standards.

 

(1)   Department to establish standards. The department shall promulgate by rule effluent limitations, standards of performance for new sources, toxic effluent standards or prohibitions and pretreatment standards for any category or class of point sources established by the U.S. environmental protection agency and for which that agency has promulgated any effluent limitations, toxic effluent standards or prohibitions or pretreatment standards for any pollutant.

(2)   Compliance with federal standards.

(a) Except for rules concerning storm water discharges for which permits are issued under s. 283.33 , all rules promulgated by the department under this chapter as they relate to point source discharges, effluent limitations, municipal monitoring requirements, standards of performance for new sources, toxic effluent standards or prohibitions and pretreatment standards shall comply with and not exceed the requirements of the federal water pollution control act, 33 USC 1251 to 1387 , and regulations adopted under that act.

(b) Rules concerning storm water discharges may be no more stringent than the requirements under the federal water pollution control act, 33 USC 1251 to 1387 , and regulations adopted under that act.

(3)   Standards for nitrogen, phosphorus and disinfection in the absence of federal standards.

(a) Standards for nitrogen and disinfection. Notwithstanding sub. (1) or (2) , the department may promulgate by rule effluent limitations representing the best available demonstrated control technology, processes, operating methods or other alternatives concerning the discharge of nitrogen compounds and concerning the disinfection of sanitary wastewaters if the U.S. environmental protection agency has not promulgated an effluent limitation, effluent standard or prohibition concerning this type of discharge or disinfection.

(am) Standards for phosphorus. Notwithstanding sub. (1) or (2) , the department shall promulgate by rule effluent limitations representing the best available demonstrated control technology, processes, operating methods or other alternatives concerning the discharge of phosphorus if the U.S. environmental protection agency has not promulgated an effluent limitation, effluent standard or prohibition concerning this type of discharge.

(b) Exemptions. The department may exempt by rule specified types of discharges from the effluent limitations concerning the discharge of phosphorus or nitrogen compounds established under par. (a) or (am) based upon:

1. The amount of phosphorus or nitrogen discharged;

2. The impact of nonpoint sources on the waters affected by the discharge;

3. The additional cost of treatment per unit of phosphorus or nitrogen removed;

4. The type of waters affected by the discharge; or

5. The impact of the discharge on the maintenance or achievement of water quality standards.

(c) Advisory committee. In promulgating rules under pars. (a) , (am) and (b) , the department shall establish an advisory committee under s. 227.13 composed of representatives of municipal dischargers, industrial point sources, farm groups, environmental groups, nonpoint sources and the public to assist in drafting the rules, evaluating technical studies and advising the department.

(d) Impact of subsequent federal standards. If the U.S. environmental protection agency promulgates an effluent limitation, effluent standard or prohibition concerning a type of discharge or disinfection specified under par. (a) or (am) for a category or class of point sources which is applicable to a permit holder, the department may modify, and at the request of the permit holder shall modify, the effluent limitation specified in the permit to conform with the effluent limitation, effluent standard or prohibition promulgated by the U.S. environmental protection agency.

(e) Compliance dates. A publicly owned treatment works shall comply with effluent limitations established under par. (a) by July 1, 1983. Any point source other than a publicly owned treatment works shall comply with effluent limitations established under par. (a) by July 1, 1984.

(4)   Standards for toxic pollutants in the absence of federal standards.

(a) Authorization. Notwithstanding sub. (1) or (2) , the department may promulgate by rule, under s. 283.21 , a toxic effluent standard or prohibition applicable to a category or class of point sources for the discharge of an identified toxic pollutant, if the U.S. environmental protection agency has not done either of the following for that identified toxic pollutant:

1. Promulgated, under 33 USC 1311 (b) (2), an effluent limitation applicable to the specified category or class of point sources.

2. Promulgated, under 33 USC 1317 , an effluent standard or prohibition applicable to the specified category or class of point sources.

(b) Identification. An identified toxic pollutant is:

1. Any toxic pollutant or combination of pollutants on the list prepared under s. 283.21 (1) (a) .

2. Any toxic pollutant or combination of pollutants on a list prepared under 33 USC 1317 .

3. Any other substance which the department has proposed to be added to the list of toxic pollutants under s. 283.21 (1) (a) .

(c) Concurrent rule making. A toxic effluent standard or a prohibition for a substance identified under par. (b) 3. may not be promulgated before the list of toxic pollutants has been revised under s. 283.21 (1) (a) to include that substance. The revision under s. 283.21 (1) (a) and the toxic effluent standard or prohibition under s. 283.21 (1) (b) may be promulgated concurrently.

(d) Additional procedures. As part of the rule-making process for a rule to which this subsection applies, the department shall do all of the following:

1. Specify in the proposed rule whether it applies to all waters of the state or to designated portions of the waters of the state.

2. Consider whether there are available removal technologies which provide the capability of achieving compliance at or for representative point sources likely to be affected by the rule and whether there are alternative control strategies which provide the capability of achieving compliance.

3. If the department finds that the level of pollutant control resulting from the application of available removal technologies or alternative control strategies is inadequate to protect public health, safety or welfare or the environment, consider any evidence presented on the relationship of the economic and social costs of the proposed standard or prohibition, including any social or economic dislocation in representative communities likely to be affected by the rule, to the social and economic benefits likely to be obtained, including attainment of the objectives of this chapter.

(e) Impact of subsequent federal standards.

1. If the U.S. environmental protection agency, under 33 USC 1317 , promulgates a toxic effluent standard or prohibition for a toxic pollutant after the department promulgates a toxic effluent standard or prohibition, the department may modify its standard or prohibition to conform to the federal standard or prohibition. At the request of a permittee to which the standard or prohibition promulgated by the department applies under the terms of a permit, the department shall modify the permit to conform to the federal standard or prohibition.

2. If the U.S. environmental protection agency, under 33 USC 1311 (b) (2), promulgates an effluent limitation applicable to the discharge of a toxic pollutant from a point source after the department promulgates a toxic effluent standard or prohibition, the department may modify its standard or prohibition to conform to the federal toxic effluent limitation. A permittee to which the standard or prohibition promulgated by the department applies under the terms of a permit may request that the department modify the permit to conform to the federal effluent limitation. The department shall use the procedures specified under s. 283.53 (2) (b) to (f) to determine whether to grant the request. The department shall grant the request unless it finds that the resulting limitation, as applied to the permittee and to any other permittees subject to the department's standard or prohibition which discharge into the receiving water, would be inadequate to protect the public health, safety or welfare or the environment in the receiving water or any other waters directly affected by the discharge. A decision by the department not to grant the request is reviewable under s. 283.63 .

(5)   Nonapplicability. This section does not apply to any water quality based effluent limitation established under s. 283.13 (5) .

1973 c. 74 ; 1979 c. 221 ss. 650c , 650e ; 1985 a. 29 ; 1985 a. 182 s. 57 ; 1987 a. 27 ; 1991 a. 39 ; 1993 a. 16 ; 1995 a. 227 s. 859 ; Stats. 1995 s. 283.11; 2013 a. 173 s. 33 . Cross-reference: See also NR 200-, Wis. adm. code. Sub. (2) does not unlawfully delegate legislative power. Niagara of Wisconsin Paper Corp. v. DNR, 84 Wis. 2d 32 , 268 N.W.2d 153 (1978). The DNR violated sub. (2) by adopting chlorine limitations in pollution discharge elimination system permits that were more stringent than federal limitations. Wisconsin Electric Power Co. v. DNR, 93 Wis. 2d 222 , 287 N.W.2d 113 (1980). In the context of regulating concentrated animal feeding operation manure applications, the broad grant of authority under s. 283.001 (2) is not limited by sub. (2). Maple Leaf Farms v. DNR, 2001 WI App 170 , 247 Wis. 2d 96 , 633 N.W.2d 720 , 00-1389 .