3745-2-08 Mixing zone demonstration and sizing requirements.

 

 

 

Rule Summary and Fiscal Analysis (Part A)

 

Ohio Environmental Protection Agency

Agency Name

 

Division of Surface Water (DSW)                     Melinda M Harris

Division                                                                  Contact

 

50 West Town Street, Suite 700 PO Box 1049 Columbus OH 43216-1049

614-728-1357        614-644-2745

Agency Mailing Address (Plus Zip)                                       Phone                     Fax

3745-2-08

Rule Number

AMENDMENT

TYPE of rule filing

Rule Title/Tag Line              Mixing zone demonstration and sizing requirements.

RULE SUMMARY

1.  Is the rule being filed consistent with the requirements of the RC 119.032 review? Yes

2.  Are you proposing this rule as a result of recent legislation? No

3.  Statute prescribing the procedure in accordance with the agency is required to adopt the rule: 119.03

4.  Statute(s) authorizing agency to adopt the rule: 6111.03, 6111.12

5.  Statute(s) the rule, as filed, amplifies or implements: 6111.12

6.  State the reason(s) for proposing (i.e., why are you filing,) this rule:

ORC 119.032 rule review.

7.  If the rule is an AMENDMENT, then summarize the changes and the content of the proposed rule; If the rule type is RESCISSION, NEW or NO CHANGE, then summarize the content of the rule:

The rule establishes a procedure for determining a mixing zone for a pollutant in a discharge permit. The proposed changes include addition of a mixing zone criterion to protect human health from scalding or burns in the event of a temporary

exposure, revision of language to allow and limit thermal mixing zones in state lakes and in waters designated exceptional warmwater habitat and coldwater habitat if the discharger submits an alternatives analysis, clarification that 316(a) demonstrations do not need to go through alternatives analysis because this analysis is built into the thermal limits process, updated references, and grammatical edits.

8.  If the rule incorporates a text or other material by reference and the agency claims the incorporation by reference is exempt from compliance with sections

121.71 to 121.74 of the Revised Code because the text or other material is generally available to persons who reasonably can be expected to be affected by the rule, provide an explanation of how the text or other material is generally available to those persons:

This rule contains references to the Ohio Administrative Code (OAC). While copies of the OAC are generally available to the public through libraries and

on-line sources, including the Ohio EPA website, ORC 121.76(A) exempts such references from the provisions of ORC sections 121.71 through 121.75.

The rule also contains a reference to a federal statute. Federal statutes are generally available to the public through libraries and on-line sources, including the U.S. EPA website. The reference has been dated to reference the specific version of the statute. ORC section 121.75(A) exempts such references from the requirements of ORC sections 121.71 through 121.74.

9.  If the rule incorporates a text or other material by reference, and it was infeasible for the agency to file the text or other material electronically, provide an explanation of why filing the text or other material electronically was infeasible:

Not Applicable.

10.  If the rule is being rescinded and incorporates a text or other material by reference, and it was infeasible for the agency to file the text or other material, provide an explanation of why filing the text or other material was infeasible:

Not Applicable.

11.  If revising or refiling this rule, identify changes made from the previously filed version of this rule; if none, please state so:

In paragraph (M)(3), revising the language regarding impacts of thermal mixing zones from "the thermal mixing zone shall not cause an increase in pathogens, or harmful, toxic, invasive or noxious aquatic organisms" to "the thermal mixing zone

shall not cause an increase in pathogens that would contribute to an impairment of a designated use in any area of the water body outside of the mixing zone; nor shall the thermal mixing zone cause nuisance growths, colors or odors from harmful, toxic, invasive or noxious organisms."

12. 119.032 Rule Review Date: 11/30/2010

(If the rule is not exempt and you answered NO to question No. 1, provide the scheduled review date. If you answered YES to No. 1, the review date for this rule is the filing date.)

NOTE: If the rule is not exempt at the time of final filing, two dates are required: the current review date plus a date not to exceed 5 years from the effective date for Amended rules or a date not to exceed 5 years from the review date for No Change rules.

FISCAL ANALYSIS

13.  Estimate the total amount by which this proposed rule would increase / decrease either revenues / expenditures for the agency during the current biennium (in dollars): Explain the net impact of the proposed changes to the budget of your agency/department.

This will have no impact on revenues or expenditures.

$0

The rule will neither increase nor decrease Ohio EPA revenues or expenditures during the current biennium.

14.  Identify the appropriation (by line item etc.) that authorizes each expenditure necessitated by the proposed rule:

Not Applicable.

15.  Provide a summary of the estimated cost of compliance with the rule to all directly affected persons. When appropriate, please include the source for your information/estimated costs, e.g. industry, CFR, internal/agency:

The rule amendments are not expected to have any impact on the cost of compliance. Costs of compliance with the currently effective rule vary among wastewater dischargers. The rule describes the requirements for point source dischargers' request for mixing zone demonstrations. The request for Ohio EPA to include a mixing zone in a discharge permit is voluntary and if approved, may

lower the cost of compliance because the effluent limitation at the end of the discharge pipe is not as low as would be otherwise be required. The cost associated with this rule would be the cost of information collection and analysis required in the mixing zone study and is site specific to a particular discharge to a particular surface water. During a rule review in 1997, changes were made to OAC Chapters 3745-1, 3745-2 and 3745-33 to implement the Water Quality Guidance for the Great Lakes System (GLI). A study evaluating the impact of those rule amendments was performed at that time and it was determined that "the final proposed rule package is projected to have a minor cost implication to Ohio wastewater dischargers and no detrimental impact on the overall Ohio economy." A copy of this study "Assessing the Economic Impacts of the Proposed Ohio EPA Water Rules on the Ohio Economy (April 24, 1997)" is available upon request.

16.  Does this rule have a fiscal effect on school districts, counties, townships, or municipal corporations? Yes

You must complete Part B of the Rule Summary and Fiscal Analysis in order to comply with Am. Sub. S.B. 33 of the 120th General Assembly.

17.  Does this rule deal with environmental protection or contain a component dealing with environmental protection as defined in R. C. 121.39? Yes

You must complete the Environmental rule Adoption/Amendment Form in order to comply with Am. Sub. 106 of the 121st General Assembly.

                                                                                                                                             

Page B-1                                                                                     Rule Number: 3745-2-08

Rule Summary and Fiscal Analysis (Part B)

1.  Does the Proposed rule have a fiscal effect on any of the following?

(a)  School Districts

(b)    Counties                                 (c) Townships           (d) Municipal

Corporations

Yes                              Yes                              Yes                              Yes

2.  Please provide an estimate in dollars of the cost of compliance with the proposed rule for school districts, counties, townships, or municipal corporations. If you are unable to provide an estimate in dollars, please provide a written explanation of why it is not possible to provide such an estimate.

The rule amendments are not expected to have any impact on the cost of compliance.

Costs of compliance with the currently effective rule vary among wastewater dischargers. The rule describes the requirements for point source dischargers' request for mixing zone demonstrations. The request for Ohio EPA to include a mixing zone in a discharge permit is voluntary and if approved, may lower the cost of compliance because the effluent limitation at the end of the discharge pipe is not as low as would be otherwise be required. The cost associated with this rule would be the cost of information collection and analysis required in the mixing zone study and is site specific to a particular discharge to a particular surface water.

During a rule review in 1997, changes were made to OAC Chapters 3745-1, 3745-2 and 3745-33 to implement the Water Quality Guidance for the Great Lakes System (GLI). A study evaluating the impact of those rule amendments was performed at that time and it was determined that "the final proposed rule package is projected to have a minor cost implication to Ohio wastewater dischargers and no detrimental impact on the overall Ohio economy." A copy of this study "Assessing the Economic Impacts of the Proposed Ohio EPA Water Rules on the Ohio Economy (April 24, 1997)" is available upon request.

3.  If the proposed rule is the result of a federal requirement, does the proposed rule exceed the scope and intent of the federal requirement? No

4.  If the proposed rule exceeds the minimum necessary federal requirement, please provide an estimate of, and justification for, the excess costs that exceed the cost of the federal requirement. In particular, please provide an estimate of the excess costs that exceed the cost of the federal requirement for (a) school districts, (b) counties, (c) townships, and (d) municipal

corporations.

Not Applicable.

5.  Please provide a comprehensive cost estimate for the proposed rule that includes the procedure and method used for calculating the cost of compliance. This comprehensive cost estimate should identify all of the major cost categories including, but not limited to, (a) personnel costs, (b) new equipment or other capital costs, (c) operating costs, and (d) any indirect central service costs.

See response to Question 2 above.

(a)  Personnel Costs

See response to Question 2 above.

(b)  New Equipment or Other Capital Costs

See response to Question 2 above.

(c)  Operating Costs

See response to Question 2 above.

(d)  Any Indirect Central Service Costs

See response to Question 2 above.

(e)  Other Costs

See response to Question 2 above.

6.  Please provide a written explanation of the agency's and the local government's ability to pay for the new requirements imposed by the proposed rule.

Requests to implement the rule amendments are voluntary and therefore would not necessarily impose new costs.

7.  Please provide a statement on the proposed rule's impact on economic

development.

The proposed rule will not have an impact on economic development.

                                                                                                                                             

Page E-1                                                                                     Rule Number: 3745-2-08

Environmental Rule Adoption/Amendment Form

Pursuant to Am. Sub. H.B. 106 of the 121st General Assembly, prior to adopting a rule or an amendment to a rule dealing with environmental protection, or containing a component dealing with environmental protection, a state agency shall:

(1)    Consult with organizations that represent political subdivisions, environmental interests, business interests, and other persons affected by the proposed rule or amendment.

(2)   Consider documentation relevant to the need for, the environmental benefits or consequences of, other benefits of, and the technological feasibility of the proposed rule or rule amendment.

(3)  Specifically identify whether the proposed rule or rule amendment is being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal environmental law or to participate in a federal environmental program, whether the proposed rule or rule amendment is more stringent than its federal counterpart, and, if the proposed rule or rule amendment is more stringent, the rationale for not incorporating its federal counterpart.

(4)   Include with the proposed rule or rule amendment and rule summary and fiscal analysis required to be filed with the Joint Committee on Agency Rule Review information relevant to the previously listed requirements.

(A)  Were organizations that represent political subdivisions, environmental interests, business interests, and other persons affected by the proposed rule or amendment consulted ? Yes

Please list each contact.

Ohio EPA invited interested parties to comment on the rule amendments on two separate occasions during the period of February 11, 2008 to March 26, 2008 and the period of March 12, 2010 to April 26, 2010. A list of interested parties is available upon request.

(B)  Was documentation that is relevant to the need for, the environmental benefits or consequences of, other benefits of, and the technological feasibility of the proposed rule or amendment considered ? Yes

Please list the information provided and attach a copy of each piece of documentation to this form. (A SUMMARY OR INDEX MAY BE ATTACHED IN LIEU OF THE ACTUAL DOCUMENTATION.)

ORC 6111.03 Powers of director of environmental protection.

Page E-2                                                                                     Rule Number: 3745-2-08

ORC 6111.12 Antidegradation policy applicable to surface waters of state; reviews. OAC 3745-1 Water Quality Standards.

40 C.F.R. 131 Water Quality Standards.

40 C.F.R. 132 Water Quality Guidance for the Great Lakes System.

(C)  Is the proposed rule or rule amendment being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal environmental law or to participate in a federal environmental program ? Yes

Is the proposed rule or rule amendment more stringent than its federal counterpart ? Yes

What is the rationale for not incorporating the federal counterpart?

OAC rules 3745-2-05 and 3745-2-08 address the phase out of mixing zones for BCCs. This action must be taken in the Lake Erie drainage basin pursuant to federal regulations. U.S. EPA justified the mixing zone ban in part because of the fact that, for chemicals that are highly bioaccumulative, allowing a mixing zone is not protective. The water quality criteria for BCCs are estimated safe concentrations that, if met, protect against unacceptable food chain contamination and possible adverse human health impacts. An important route of human exposure to mercury, PCBs, dioxins and other BCCs is through eating contaminated fish. If mixing zones are allowed for BCCs the concentrations are up to 10 times higher then the safe criteria. Aquatic organisms live in mixing zones and fish are often attracted to mixing zones. The time these organisms spend in these locations at concentrations above the BCC criteria will create unacceptably high levels in the food chain. Some people who fish are pre-disposed to seek out schools of fish like those sometimes found in and near mixing zones. The phase out of mixing zones for BCCs required by federal regulations in the Lake Erie basin protects this group of Ohioans who fish and consume the fish they catch. The 2002 rulemaking extended the phase out of mixing zones for BCCs to the Ohio River basin because the underlying toxicological principles are no different from one basin to another.

(D)  If this is a rule amendment that is being adopted under a state statute that establishes standards with which the amendment is to comply, is the proposed rule amendment more stringent than the rule that it is proposing to amend? No

Not Applicable