3745-90-04 Harmful algal blooms - analytical methods and reporting.

 

 

 

Rule Summary and Fiscal Analysis (Part A)

 

Ohio Environmental Protection Agency

Agency Name

 

Division of Drinking and Ground Water (DDAGW)

Susan Kramer

Division                                                                  Contact

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

614-644-2763        614-644-2909

Agency Mailing Address (Plus Zip)                                       Phone                     Fax

[e-mail]

Email

3745-90-04

Rule Number

NEW

TYPE of rule filing

Rule Title/Tag Line              Harmful algal blooms - analytical methods and reporting.

RULE SUMMARY

1.  Is the rule being filed for five year review (FYR)? No

2.  Are you proposing this rule as a result of recent legislation? Yes

Bill Number: SB1                   General Assembly: 131           Sponsor: Sen. Gardner and

Sen. Peterson

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: 3745.50, 6109.04

5.  Statute(s) the rule, as filed, amplifies or implements: 3745.50, 6109.04

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

This rule is proposed with amendments in response to recently enacted section 3745.50(C) of the Revised Code, which requires the Director of Ohio EPA to develop and implement protocols and actions for cyanotoxin testing in public water systems.

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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:

This rule requires samples collected in accordance with OAC Chapter 3745-90 to be analyzed by a certified laboratory or a lab acceptable to the Director. It also sets forth the approved analytical methods, reporting of analytical data and what constitutes as a violation of this rule.

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 references Administrative Code. In accordance with section 121.76 of the Revised Code, these references are exempt from the requirements of sections

121.71 to 121.75 of the Revised Code.

This rule also incorporates by reference an Ohio EPA document entitled "Ohio EPA DES method 701.0, Ohio EPA Total (Extracellular and Intracellular) Microcystins - ADDA by ELISA Analytical methodology, version 2.2" dated November 2015. The Ohio EPA believes this document is exempt from sections

121.71 to 121.74 of the Revised Code because it is generally accepted industry standards that are readily available to persons who are reasonably expected to be affected by the rule. In addition, this rule includes information on how the persons affected by this rule, the laboratories and analysts who perform analyses of drinking water for public water systems in Ohio, can obtain a copy.

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.

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11.  If revising or refiling this rule, identify changes made from the previously filed version of this rule; if none, please state so. If applicable, indicate each specific paragraph of the rule that has been modified:

This rule is being revised to correct the year listed on the public notice from 2015 to 2016.

12.  Five Year Review (FYR) Date:

(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 increase expenditures. 0.00

Ohio EPA will determine compliance with the rule requirements and issue notices of violation as appropriate. These activities will increase expenditures, which the Agency will absorb by reallocating existing resources.

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:

Please see the attachment "Cost of compliance for rules in Chapter 3745-90."

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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.

S.B. 2 (129th General Assembly) Questions

18.  Has this rule been filed with the Common Sense Initiative Office pursuant to

R.C. 121.82? Yes

19.  Specific to this rule, answer the following:

A.) Does this rule require a license, permit, or any other prior authorization to engage in or operate a line of business? Yes

This rule only permits laboratories to be found acceptable to Ohio EPA to be performing microcystins analysis for the first year from when this rule becomes effective, and eventually to become certified to perform the analysis. In addition, it requires a laboratory to be certified for performing cyanobacteria screening.

B.) Does this rule impose a criminal penalty, a civil penalty, or another sanction, or create a cause of action, for failure to comply with its terms? Yes

Violation of this rule could subject a laboratory to potential civil, administrative or criminal penalties, or suspension or revocation of their laboratory certification in accordance with Chapter 6109 of the Revised Code.

C.) Does this rule require specific expenditures or the report of information as a condition of compliance? Yes

This rule requires analytical data from microcystins monitoring and cyanobacteria screening to be reported in accordance with Chapter 3745-89. It also establishes what constitutes as a violation of the rule.

                                                                                                                                             

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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.

Please see the attachment "Cost of compliance for rules in Chapter 3745-90."

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.

Please see the attachment "Cost of compliance for rules in Chapter 3745-90."

(a)  Personnel Costs

See above.

(b)  New Equipment or Other Capital Costs

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See above.

(c)  Operating Costs

See above.

(d)  Any Indirect Central Service Costs

See above.

(e)  Other Costs

See 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.

The agency's ability to pay is already established and will be unaffected.

There will be some increased costs to local government. The 1996 Amendments to the Safe Drinking Water Act provided capitalization grants to states with primary enforcement authority to help fund infrastructure improvements needed to comply with the new requirements. These grants fund the Water Supply Revolving Loan Fund, which provides low-interest loans to community and not for profit water systems. Loans can provide support for design work in addition to capital improvements. Ohio EPA has dedicated funds from the WSRLA to assist with some of the costs associated with these rules. Specifically, Ohio EPA has made $1 million in grants available to surface water public water systems to enhance their monitoring capacity for cyanotoxins and harmful algal blooms. A public water system can apply for up to $30,000 to purchase equipment for monitoring and analysis and to fund training. In addition, fifty million dollars in zero-percent interest rate loans are available to surface water public water systems for enhanced water treatment infrastructure.

Operating costs would also be supported through conventional mechanisms such as collecting fees from customers based on the amount of water used or rental fees.

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

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While there could potentially be significant costs to public water systems associated with the proposed rule that may have a negative effect on economic development, the availability of a safe, reliable and adequate water supply is essential to Ohio's economic success. In addition, some of the requirements of the rules will provide new economic opportunities for certified laboratories performing sample analysis, as well as those involved with the engineering and construction of any infrastructure improvements prompted by the rules.

                                                                                                                                             

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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 this rule during the period of September 22 to October 23, 2015. Comments received were considered. A list of interested parties will be furnished 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.)

A list of references used in the development of Chapter 3745-90 is located in the references section of Ohio EPA's "Public Water System Harmful Algal Bloom Response Strategy" (July 2015). Ohio EPA also considered Chapter 6109. of the

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Revised Code, and Chapters 3745-81, 3745-89, 3745-91 and 3745-96 of the Administrative Code. In addition, the latest revisions to 40 CFR Parts 141 and 142 were considered. Last of all, U.S. EPA's "Drinking Water Health Advisory for the Cyanobacterial Microcystin Toxins," published in June 2015 was considered and used to support the adoption of action levels as established in Chapter 3745-90.

Copies will be furnished upon request.

(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 ? No

Is the proposed rule or rule amendment more stringent than its federal counterpart ? Not Applicable

(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

                                                                                                                                             

Cost of compliance for rules in Chapter 3745-90, Harmful Algal Blooms RSFA Attachment

Monitoring Requirements (3745-90-03)

The cost to comply with the monitoring requirements set forth in OAC rule 3745-90-03 will impact public water systems (PWSs). PWSs will bear the cost of taking samples, which includes labor and materials. Systems that conduct their own analysis will also bear the cost of maintaining the analytical equipment and increased time spent by staff to perform the analysis. Systems that submit their samples to a commercial laboratory will bear the costs charged by the laboratory. Until  such  time as there is sufficient certified laboratory capacity to conduct cyantoxin screening analysis, Ohio EPA's Division of Environmental Services (DES) will fulfill the need.

The cost to comply with this rule can be broken down into two main categories: cyanotoxin screening and monitoring for microcystins. The frequency of sampling will depend on the time of year, results from the routine samples, whether finished water detections occur, and analytical costs. In general, the costs would most often account for sampling and shipping materials. Labor costs vary depending on the size and type of public water system, as well as the individual salaries and whether or not the public water system has its own certified laboratory to conduct microcystins analysis.

Cyanobacteria Screening

Surface water systems are to collect a minimum of one sample from each raw water sampling point at least once every two weeks. The average amount of time to collect this sample and provide it to a certified laboratory for analysis is about 30 minutes. The average cost of this screening using the qPCR method for twenty-six weeks ranges from $70 to $183 per sample or $1,820 to $4,758 per year.

Ohio EPA will cover analysis expenses for at least the first year from when this rule becomes effective, but PWSs will have to pay for sample shipping at an estimated cost of $23 to $60 per shipment or $598 to $1,560 per year.

Microcystins Monitoring

Ohio EPA received various estimates from small to medium-size public water systems. These estimates were based on the original proposal to require public water systems to conduct microcystins monitoring weekly for a total of fifty-two weeks per year. These cost estimates ranged from $12,000 to $25,000. The following paragraphs incorporate revised cost estimates based on the proposed revisions to the rule.

Monitoring and analysis during the time period May 1 - Oct. 31: Surface water systems are to monitor with a minimum of one sample from each raw water sampling point and one sample from each finished water sampling point at least weekly. In some cases, this analysis will be conducted by the public water system. The average amount of time to conduct this analysis is five hours. The average cost of this monitoring using the ELISA-ADDA method for twenty-six weeks (six months) ranges from $70 to $150 per sample or $3,640 to $7,800. PWSs that have to ship samples to an outside laboratory would also have to pay for shipping at an estimated cost of $23 to $60 per shipment or $598 to $1,560 for the six month period.

Dec. 2015                                                                                                                                                                                          1

Monitoring and analysis during the time period Nov. 1 - April 30: Surface water systems may reduce monitoring to a minimum of one sample from each raw water sampling point at least once every two weeks if at least two consecutive weekly samples from both the raw water and finished water sampling points are non-detect for microcystins. Assuming the system will be able to remain on a reduced monitoring schedule, the average cost of monitoring for microcystins in only raw water using the ELISA-ADDA method for thirteen weeks (six months) ranges from $70 to 150 per sample or $910 to $1,950. PWSs that have to ship samples to an outside laboratory would also have to pay for shipping at an estimated cost of $23 to $60 per shipment or $299 to $780 for the six month period.

Total annual costs for microcystins monitoring and analysis for a system which can reduce sampling between November and April will range from $4,550 to $9,750. If the water system continues to detect microcystins in source water during this time period and is not eligible for reduced monitoring, the total annual costs will range from $7,280 to $15,600.  If shipping is necessary, the cost will range from $897 to

$3,210 per year depending on whether the PWS is eligible for reduced monitoring.

The costs figure for microcystins monitoring do not account for surface water systems with more than 1 raw water sampling point. It also does not account for increased monitoring that may be required if microcystins exceed 5.0 µg/L at the raw water sampling point or microcystins are detected in finished water.

Analytical Methods and Reporting Requirements (3745-90-04)

The cost to comply with these requirements is the cost of the certification for laboratories and will impact commercial laboratories and PWSs conducting analysis. The cost of the certification will be delayed for a year from the effective date of this rule unless a laboratory or PWS seek to get their certification earlier than required.

This cost is a standard fee established by Ohio EPA's DES. It is $1,550 and renewable every three years. The costs to comply with this rule are established in Chapter 3745-89 of the Administrative Code.

Treatment Technique Requirements (3745-90-05)

The cost to comply with this rule impacts PWSs, and is primarily employee time spent developing treatment optimization protocols, and a professional engineer drafting a cyanotoxin general plan, as well as a plan approval fee. The general plan approval fee is $150. The cost of implementing the plan will vary substantially and be dependent upon the selected approach. Examples of approaches that might be in the general plan include installing ozone, increasing or adding a powdered activated carbon (PAC) feed, and a reservoir management program. If the public water system already has advanced treatment in place that is capable of cyanotoxin destruction or removal, the general plan can serve to document the existing treatment is effective and additional treatment is not necessary. The costs of a general plan can vary from minimal (the time it takes for an operator to document existing treatment processes) to $20,000-$100,000 (the cost associated with planning necessary for a substantial plant upgrade).

Dec. 2015                                                                                                                                                                                          2

Tier 1 Public Notification and Consumer Confidence Report Requirements (3745-90-06)

This rule does not directly impose costs on PWSs but does establish the framework for when to issue a Tier 1 public notice. It also requires some community PWSs to include information about exceedances of the action level in their annual consumer confidence report.

The overall cost of compliance to systems is already established in OAC rule 3745-81-32. The estimates include personnel costs, new equipment or other capital costs, operating costs and any indirect central service costs associated with public notice preparation and distribution. In 2009, this estimate, per system with a violation triggering public notification, ranged from $1,535.43 for PWSs serving 3,301 to 10,000 up to $50,106.10 for PWSs serving over 100,000.

The overall cost of compliance to community water systems that are required to issue a consumer confidence report is already established in OAC Chapter 3745-96. The estimate includes the cost of development and delivery of the report. In 2010, the cost to each system to comply with Chapter 3745- 96 was estimated at $400.92 per year.

In addition to the cost of the Tier 1 public notice as described, public water systems provided Ohio EPA with information addressing the costs to the community of issuing a public notice and specifically, a "Do Not Drink/Do Not Boil" advisory. The estimates provided by the article are a range of $103 to $220 per person per day, which does not include the costs for delivery and distribution of alternate sources of water. [Roberson, J. Alan; Carpenter, Adam T. (2015). Cyanotoxins: Practical Solutions Needed. Journal AWWA, 107:10 (Oct. 2015), pp. 12-15.]. Ohio EPA also recognizes an unquantifiable cost to communities in loss of public confidence as a result of issuing a Tier 1 public notice.

Recordkeeping (3745-90-07)

The cost to comply with this rule will impact PWSs that maintain paper records and need to acquire storage. The costs depend on the volume of records to be maintained. The volume of records will vary depending on the size of the system, from one filing cabinet's worth of records to an entire filing room. The cost of comply with this rule could therefore range from $360 to $800 (a one-time cost for a standard 5-drawer filing cabinet, depending on the type and a couple of boxes of file folders and hanging filing folders at Staples.com), to an annual cost of $1,500 (approximate cost for maintaining an account with National Resource Centers, who have off-site locations in five cities in Ohio).

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