(3) RELAXING A WATER QUALITY BASED LIMITATION
OR A LIMITATION BASED ON A STATE TECHNOLOGY BASED TREATMENT STANDARD.
(a)
General. Any effective
water quality based effluent limitations, including those based upon a total
maximum daily load or other wasteload allocation, or a limitation based on a
state technology based treatment standard may be relaxed in a reissued, revoked
and reissued, or modified permit if the requirements of sub. (1) (a) and (b)
are met and, for an increased water quality based effluent limitation, one of
the following requirements is satisfied:
1.
`Impaired waters and TMDL based limitations.' For discharges of a pollutant to
a receiving water or downstream water that is listed as an impaired water for
the pollutant, any water quality based effluent limitation that is based upon a
federally approved total maximum daily load for the pollutant may be made less
stringent, provided at least one of the following applies:
a. Other wasteload allocated limitations for
one or more dischargers to the impaired receiving water or downstream water are
also adjusted so, cumulatively, the total maximum daily load allocations will
still assure the attainment of water quality standards.
b. The designated use that is not being
attained has been removed or revised in accordance with state regulatory
procedures and approved by the EPA.
2. Impaired water and no federally approved
TMDL developed.' For discharges of a pollutant to a receiving water or
downstream water that is listed as an impaired water for the pollutant but
where a total maximum daily load has not yet been developed and approved by EPA
for the pollutant, a water quality based effluent limitation for the pollutant
may be made less stringent, provided at least one of the following applies:
a. The discharger can demonstrate that the
increase in loading will be offset through a water quality trade or other means
with another discharge of the same pollutant to the impaired water. The offset
must be approved by the department and must be implemented prior to
discharge.
b. The designated use
that is not being attained has been removed or revised in accordance with state
regulatory procedures and approved by the EPA, and the resulting less stringent
limit would be subject to this paragraph.
3. Other waters that attain the water quality
standard.' For discharges of a pollutant to a surface water where neither the
immediate receiving water or downstream water is an impaired water for the
pollutant, any water quality based effluent limit, including a limitation based
upon a total maximum daily load or other wasteload allocation, may be made less
stringent provided water quality standards, including designated uses and
antidegradation, are met.
Note: The requirements in sub. (3) (a) 1. and
3. are based on the provisions of
33 USC
1313(d)(4) and still require
compliance with sub. (1), which requires antidegradation requirements be
satisfied. An example of the allowance for backsliding under this subdivision
is a situation where the initial water quality based effluent limit was based
on protection of a receiving water or a downstream water that did not meet the
applicable water quality standard and the previously impaired water has now met
or exceeded the water quality standard.
(b)
Specific exceptions to
backsliding prohibition. Any effective water quality based effluent
limitations, including those based upon a total maximum daily load or other
wasteload allocation, or a limitation based on a state technology based
treatment standard may be relaxed in a reissued, revoked and reissued, or
modified permit if sub. (1) (a) and (b) are satisfied and at least one of the
following applies:
1. Material and
substantial alterations or additions to the permitted facility occurred after
the limitation was initially imposed in the permit that justify the application
of a less stringent effluent limitation.
2. New information is available that was not
available at the time of permit issuance and that would have justified the
application of a less stringent effluent limitation at the time of permit
issuance. New information under this subdivision includes the establishment of
an EPA approved total maximum daily load for the pollutant and receiving water.
New information under this subdivision does not include revised regulations,
guidance, or test methods. The relaxation of a water quality based effluent
limitation under this subdivision that is based upon a revised wasteload
allocation, a revised TMDL, or any alternative grounds for translating water
quality standards into effluent limitations, is permissible only if the
cumulative effect of the revised allocation results in a decrease in the amount
of pollutants discharged into the receiving waters, and such revised
allocations are not the result of a discharger completely or substantially
eliminating its discharge of pollutants.
3. A less stringent effluent limitation is
necessary because of events over which the permittee has no control and for
which there is no reasonable available remedy.
4. The permittee has received department
approval for any of the following:
a. A
modified technology based limitation under s.
283.13(3),
Stats.
b. An extended compliance
schedule under s.
283.13(6),
Stats.
c. A modified technology
based limitation under a fundamentally different factors variance under ss. NR 220.30 to 220.33.
d. An alternative
thermal effluent limitation under s.
283.17(1),
Stats.
5. The permittee
has installed the treatment facilities required to meet the effluent
limitations in the previous permit and has properly operated and maintained the
facilities, but has nevertheless been unable to achieve the previous effluent
limitations. In such a case, the effluent limitation in the reissued, revoked
and reissued, or modified permit may be relaxed to reflect the level of
pollutant control actually achieved. However, in no case may the limitation be
less stringent than applicable effluent guidelines in effect at the time of
reissuance or modification.
Note: These exceptions are listed in
33 USC
1342(o)(2).
