The proposed rule changes will include new requirements for electronic and web notices established pursuant to 2011 Act 167. Mandatory electronic notification is an added step for the department in the permit public notification process. Also, pursuant to 2011 Act 167, there are different notice procedures and comment periods for substantial changes to nutrient management plans of permitted concentrated animal feeding operations (CAFOS). These new state statutory requirements state that notices may be done electronically and state the department shall provide a 14-day period for comments and hearing requests on substantial changes to nutrient management plans. Allowing less than 30 days notice for these types of changes are consistent with federal regulations in 40 CFR 122.42(e)(6).

The primary purpose of this proposed rule package is to incorporate specific federal NPDES permit procedures and requirements that apply to Wisconsin's WPDES permit program, and to include new permit processing requirements for the WPDES permit program in 2011 Act 167. Wis. Stat. s. 283.11 (1) states that 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. Subject to a few exceptions, Wis. Stat. s. 283.11 (2) further states that rules must comply with and not exceed federal law and regulations. Wis. Stat. s. 283.11 clearly provides rulemaking authority for the majority of this rule package. Additional authority is discussed below.

Wisconsin Stat. s. 283.37 (1) specifies that the department shall promulgate rules relating to applications for permits under this chapter which shall require at a minimum that every owner or operator of a point source discharging pollutants into the waters of the state shall have on file either a completed permit application on forms provided by the department or a completed permit application under section 13 of the rivers and harbors act of 1899, 33 USC 407 or under the federal water pollution control act, as amended, 33 USC 1251 to 1376. This statutory provision provides rulemaking authority related to permit applications.

Wisconsin Stat. ss. 283.39 (1) and s. 283.41 state that the department shall promulgate by rule procedures for providing notice of permit applications and permit actions.

In addition, Wis. Stat. ss. 283.31 (3) and (4) states that the department may issue a permit upon condition that the permit contains limitations necessary to comply with any applicable federal law or regulation and state water quality standards. Wis. Stat. s. 283.13 (5) states that the department shall establish more stringent limitations than required under subs. (2) and (4) (technology based requirements) and shall require compliance with such limitations in any permit issued, reissued or modified if these limitations are necessary to meet applicable water quality standards, treatment standards, schedules of compliance or any other state or federal law, rule or regulations. All of these explicit statutory requirements in combination with s. 227.11 (2) provide the department with authority to promulgate rules that are consistent with federal regulations.

Finally, the following list of sections in Chapter 283, Wis. Stats., in combination with s. 227.11 (2), Wis. Stats., provides the department with authority to promulgate rules that are consistent with federal regulations.

Wis. Stats.   Description

283.49   Public hearing.

283.45   Fact sheets.

283.53   Permit duration, modification, revocation and reissuance.

283.63   Review of permits, decisions, terms and conditions.

400 hours of state employee time to develop the rule package. The department will consult with permitted facilities and other interested groups as well as EPA in developing these rule revisions.

This rule package will ensure state rules are consistent with federal regulations identified by EPA in its July 18th letter that are specified in section 2 above.

The department believes the economic impact would be minimal because the regulatory changes are very minor (insignificant impact on small businesses). Initially, there will be some additional work for department staff to establish procedures for electronic notices.

This statement of scope was approved by the governor on May 29, 2012.

SS-14-12, Chapter NR 219.

Analytical test methods and procedures for analysis of wastewater samples.

Permanent.

Not applicable.

This rule change is necessary to comply with findings by the Environmental Protection Agency (EPA).

On July 28, 2011, the department received a letter (dated July 18, 2011) from EPA identifying seventy-five questions and potential inconsistencies between Wisconsin's statutory or regulatory authority to administer its National Pollutant Discharge Elimination System (NPDES) approved program and federal statutes or regulations.

DNR is taking a broad-based approach in response to EPA's letter. For the rule making component of this broad based approach, the department is proposing eight different rule packages to address some of the listed concerns. This is the eighth proposed rule package which is designed to address the ninth citation in EPA's July 18th letter. After conferring with EPA, the department is proposing to respond to the ninth citation through revisions to Chapter NR 219. The purpose of the proposed changes is to ensure that the state's regulations are consistent with federal regulations.

Specifically, the proposed rule package will address EPA's issues with the department rule incorporating SW 846 methods for wastewater sample analysis. The EPA publication SW-846, entitled Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, is the waste division of EPA's official compendium of analytical and sampling methods that have been evaluated and approved for use in complying with the federal Resource Conservation and Recovery Act (RCRA) regulations. The DNR has allowed SW 846 methods for analysis of wastewater samples since 1995 because the methods are revised frequently and contain stringent quality control measures. However, EPA has requested that DNR remove from Chapter NR 219 all references to allowing SW 846 methods as “approved" methods for analysis of wastewater samples. EPA has also requested that DNR update Chapter NR 219 to incorporate analytical methods that have been federally approved in the Federal Register (40 CFR 136).

Therefore, one objective of this rule change is to remove analytical methods that EPA has not approved for wastewater from the list of approved analyses in Chapter NR 219. The other objective is to add methods that are currently allowed by EPA per 40 CFR Part 136 but are not included in Chapter NR 219 at this time.

Chapter NR 219 establishes analytical test methods, preservation procedures, requirements for laboratories, and procedures applicable to effluent limitations for discharges from point sources as authorized by ss. 299.11 and 283.55 (1), Stats. The proposed changes to this rule will remove SW 846 analytical methods that EPA has determined are not allowed for WPDES wastewater analyses. Chapter NR 219 will also be changed to include methods now allowed by EPA under 40 CFR 136. In the July 18th letter, EPA notified Wisconsin that changes must be made to state rules or statutes to ensure consistency with federal laws and regulations for the NPDES permit program, or alternatively, the state must demonstrate that it has adequate authority (through an Attorney General's Statement or other information). For all of the issues addressed in this rule package, the department determined that proposing rule changes should be made so state rules for the WPDES permit program are clearly consistent with federal regulations.

The purpose of this proposed rule package is to amend Chapter NR 219, Wis. Admin. Code, to comply with specific federal NPDES testing requirements that apply to Wisconsin's WPDES permit program.

Wisconsin Stat. s. 299.11 (7) (b) authorizes the department to prescribe by rule the accepted methodology to be followed by certified laboratories in conducting tests. This section requires the department to attempt to prescribe this methodology so that it is consistent with any methodology requirements under federal law, including under the federal water pollution control act, as amended, 33 USC 1251 to 1376.

Wisconsin Stat. s. 283.31 (3) authorizes the department to issue permits for the discharge of any pollutant or combination of pollutants upon certain conditions, including that such discharges will meet effluent limitations, standards of performance for new sources, effluent standards, prohibitions, and pretreatment standards, and any more stringent limitations including those necessary to comply with any applicable federal law.

Wisconsin Stat. s. 283.55 (1) authorizes the department to prescribe by rule the methods, locations, and manner of sampling of effluents from each owner or operator of a point source who is required to obtain a permit under 283.31. Samples and test results are required to meet the requirements in Wisconsin Stat. s. 283.55 (1) to provide records to the department regarding, among other things, the volume of effluent discharged and the amount of each pollutant discharged from each point source under the owner's or operator's control.

Wisconsin Stat. s. 281.19 (1) authorizes the department to adopt rules applicable throughout the state for the construction, installation, use and operation of practicable and available systems, methods, and means for preventing and abating pollution of waters of the state. Chapter NR 219 prescribes procedures and test methods for determining the concentration and quantities of pollutants discharged under WPDES permits.

It will take state employees approximately 160 hours to develop the rule and other resources to make the changes required by the EPA.

75 Commercial Analytical Laboratories – these are laboratories that analyze environmental (aqueous, solid and drinking water) samples for hire.

57 Industrial Analytical Laboratories – these are laboratories that are a part of an industry and analyze environmental samples on their own behalf.

245 Municipal Analytical Laboratories – these are laboratories owned by a municipality that generally do analysis of samples for the community's wastewater treatment facility.

10 Public Health/Public Water Utility Analytical Laboratories – these are generally county labs that support the public health department in that area and analyze primarily drinking water samples but may do some wastewater analyses.

WPDES Permittees – these are the permittees that have a WPDES permit which requires samples to be analyzed by approved methods.

This rule package will ensure state rules are consistent with federal regulations identified by EPA in its July 18th letter that are specified in section 2 above.

This rule change will not have a significant impact on any entities or small businesses. It will only change the options for the analytical methods that a laboratory can use to assess WPDES samples. There could be a small cost to laboratories that have been using the SW 846 methods that will no longer be allowed. The cost would be for obtaining copies of allowed methods, and staff time needed to update their methodology and change forms or other documents that reference the SW 846 methods. The department believes that any change in test procedures should not significantly change the fees charged to permittees by laboratories. The department believes the economic impact would be minimal because the regulatory changes are very minor (insignificant impact on small businesses).

Camille Turcotte 608.266.0245.

This statement of scope was approved by the governor on May 25, 2012.

Wisconsin Administrative Code Chapter Trans 102.

Operator's licenses and identification cards.

Permanent.

N/A

Chapter Trans 102, Operator's Licenses and Identification Cards, is an existing rule that provides administrative interpretation of Wisconsin State Statute 343 relative to the issuance of operator's licenses, identification cards and vehicle titles & registration.

Chapter Trans 102 was last amended in 2007. Since that time, changes have occurred in federal and state laws affecting the issuance of driver's licenses (DL's), identification cards (ID's), and titles and registration documents. In addition, the Wisconsin Department of Transportation's Division of Motor Vehicles (DMV) modified internal policies regarding documentation requirements and transaction methods to reflect current technologies used to further improve the customer's experience. As a result, modifications to the rule are necessary. The anticipated modifications will not change the objective of the rule.

Changes to federal laws over the past several years have tightened security and identification standards for DL's and ID's. Modifications to the Chapter Trans 102 language to reflect these changes will ensure that the DMV is in compliance with the federal requirements related to “REAL ID" (Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes (6 CFR Part 37)).

Modifications to the rule are necessary to ensure that the DMV is fully compliant with all statutory changes that have occurred since the last Administrative Code rule update, and reflect administrative changes that have occurred since 2007.

Wis. Stat. s. 343.50 (5) defines the valid period and fees associated with issuing state identification cards. Wis. Stat. s. 343.50 (5) (a) 3. requires the department to issue an applicant a free identification card if the applicant is a U.S. citizen, is at least 18 years of age on the date of the next election, and requests the card be provided without charge for the purpose of voting. Wis. Stat. s. 343.50 (5m) defines the card issuance fee structure the department must use when issuing identification cards to eligible applicants. Under this statute, the department may not charge a fee for the issuance of an original, duplicate or reissued identification card, if Wis. Stats. ss. 343.50 (5) (a) 2. or 3. or (7) apply.

Wis. Stat. s. 343.50 (5) (b) requires an identification card to be valid for the succeeding period of 8 years from the applicant's next birthday after the date of issuance.