3745-1-07 Water use designations and statewide criteria.

 

 

 

Rule Summary and Fiscal Analysis (Part A)

 

Ohio Environmental Protection Agency

Agency Name

 

Division of Surface Water (DSW)                     Bob Heitzman

Division                                                                  Contact

 

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

614-644-2001        614-644-2745

Agency Mailing Address (Plus Zip)                                       Phone                     Fax

3745-1-07

Rule Number

AMENDMENT

TYPE of rule filing

Rule Title/Tag Line              Water use designations and statewide criteria.

RULE SUMMARY

1.  Is the rule being filed consistent with the requirements of the RC 119.032 review? No

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: 6111.041

5.  Statute(s) the rule, as filed, amplifies or implements: 6111.041

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

This rulemaking consists of a few of the changes that were already made available for review in other draft rule packages, specifically the water quality standards rulemaking and the antidegradation rulemaking. Those two rule packages are part of four interrelated rule packages (water quality standards, 401 water quality certification, antidegradation, and stream mitigation).

Because of delays in completing the draft stream mitigation rule package, Ohio EPA has decided to peel a few time-sensitive items out of the water quality standards/antidegradation rule packages and proceed with targeted changes in a separate stand alone rulemaking. This separate stand alone rulemaking is

proceeding through the rulemaking process ahead of the remainder of the rule changes, which will continue to proceed but be linked to the stream mitigation rules as previously planned.

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 defines water body use designations and identifies statewide water quality criteria applicable to the use designations. The changes to this rule consist of revising the definitions of the recreation use designations, removing fecal coliform water quality criteria and revising E. coli water quality criteria.

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) and Ohio Revised Code (ORC). While copies of those rules and statutes are generally available to the public through libraries and on-line sources, including the Ohio EPA website, ORC section 121.76(A) exempts such references from the provisions of ORC sections 121.71 through 121.75.

This rule also contains a reference to the Code of Federal Regulations (C.F.R.). Those federal regulations are generally available to the public through libraries and on-line sources, including the Ohio EPA and U.S. EPA websites. ORC section 121.75(D) exempts such references from the provisions of ORC sections 121.71 through 121.75.

This 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 federal statute referenced is defined in OAC rule 3745-1-02.

ORC section 121.75 (A) exempts such references from the requirements of ORC sections 121.71 through 121.74.

This rule also contains references to methods manuals and procedure documents. Those manuals and documents are included in OAC rule 3745-1-03 with information on how to obtain them.

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:

The definitions of "Bathing waters" in paragraph (B)(4)(a) and "Secondary contact" in paragraph (B)(4)(c) were revised slightly in response to public comments.

12. 119.032 Rule Review Date: 12/30/2007

(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 amendments 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:

Costs of compliance with the currently effective rule vary among wastewater dischargers, based upon factors such as the type and quantity of pollutants discharged, the amount of dilution water available to mix with the discharge, and the amounts of pollutants in the dilution water. Rule 3745-33-07 of the Administrative Code allows the director to grant temporary variances from compliance with water quality criteria if attainment of the criteria is not feasible. The proposed amendments to this rule will require those wastewater dischargers who are required to monitor for bacteria to monitor for E. coli bacteria; under the currently effective rule, those dischargers monitor for fecal coliform bacteria. The proposed amendments are expected to result in small cost increases for those wastewater dischargers, as described below. The required frequency of monitoring for bacteria range from once per day during the recreation season (May 1 to October 31) for the largest municipal wastewater treatment plants, those that discharge over 10 million gallons per day, to only once per quarter during the recreation season for the smallest treatment plants, those that discharge less than 10,000 gallons per day. Many large wastewater dischargers operate their own laboratories. For them, there may be start-up costs and increased costs for consumables associated with E. coli analyses. However, the E. coli analysis takes less time and effort than the fecal coliform analysis, so some laboratories may see their staff costs per analysis reduced. One commenter on the draft rule estimated that its laboratory will likely need to spend about $6,200.00 on new equipment and materials if the lab utilizes the IDEXX Quanti-Tray/2000 method (SM 9223 B) of analysis. This amount includes, among other things, the cost of a new incubator and sealer device. Following initial start-up costs, each E. coli measurement could cost about $7.00 in consumables, which is about $4.00 more per test compared to the current membrane filter test used for fecal coliform analysis (SM 9222 D). In 2008 the commenter's laboratory processed over 490 fecal samples; had the laboratory been required to run E. coli instead, the additional analytical costs using the SM 9223 B method would have neared $2,000.00. The commenter also stated that while the consumable cost per test would increase, they do not believe that the amount of staff time required to run the E. coli test would differ significantly from the amount of time required to run the fecal coliform test. Smaller wastewater dischargers send their effluent samples to contract laboratories for analysis. Some contract laboratories currently charge the same amount for fecal coliform and E. coli analyses, whereas others charge $5.00 to $10.00 more for E. coli analyses.

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: 3745-1-07

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.

Costs of compliance with the currently effective rule vary among wastewater dischargers, based upon factors such as the type and quantity of pollutants discharged, the amount of dilution water available to mix with the discharge, and the amounts of pollutants in the dilution water. Rule 3745-33-07 of the Administrative Code allows the director to grant temporary variances from compliance with water quality criteria if attainment of the criteria is not feasible.

The proposed amendments to this rule will require those wastewater dischargers who are required to monitor for bacteria to monitor for E. coli bacteria; under the currently effective rule, those dischargers monitor for fecal coliform bacteria. The proposed amendments are expected to result in small cost increases for those wastewater dischargers, as described below.

The required frequency of monitoring for bacteria range from once per day during the recreation season (May 1 to October 31) for the largest municipal wastewater treatment plants, those that discharge over 10 million gallons per day, to only once per quarter during the recreation season for the smallest treatment plants, those that discharge less than 10,000 gallons per day.

Many large wastewater dischargers operate their own laboratories. For them, there may be start-up costs and increased costs for consumables associated with E. coli analyses. However, the E. coli analysis takes less time and effort than the fecal coliform analysis, so some laboratories may see their staff costs per analysis reduced.

One commenter on the draft rule estimated that its laboratory will likely need to spend about $6,200.00 on new equipment and materials if the lab utilizes the IDEXX Quanti-Tray/2000 method (SM 9223 B) of analysis. This amount includes, among other things, the cost of a new incubator and sealer device. Following initial start-up costs, each E. coli measurement could cost about $7.00 in consumables,

which is about $4.00 more per test compared to the current membrane filter test used for fecal coliform analysis (SM 9222 D). In 2008 the commenter's laboratory processed over 490 fecal samples; had the laboratory been required to run E. coli instead, the additional analytical costs using the SM 9223 B method would have neared $2,000.00. The commenter also stated that while the consumable cost per test would increase, they do not believe that the amount of staff time required to run the E. coli test would differ significantly from the amount of time required to run the fecal coliform test.

Smaller wastewater dischargers send their effluent samples to contract laboratories for analysis. Some contract laboratories currently charge the same amount for fecal coliform and E. coli analyses, whereas others charge $5.00 to $10.00 more for E. coli analyses.

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 the response to question # 2 above.

(a)  Personnel Costs

See the response to question # 2 above.

(b)  New Equipment or Other Capital Costs

See the response to question # 2 above.

(c)  Operating Costs

See the response to question # 2 above.

(d)  Any Indirect Central Service Costs

See the response to question # 2 above.

(e)  Other Costs

See the 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.

The new requirements imposed by the proposed rule are not expected to have any impact on the cost of compliance.

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

The rule amendments are not expected to have any impact on economic development.

                                                                                                                                             

Page E-1                                                                                     Rule Number: 3745-1-07

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 during the period of March 3, 2009 to April 17, 2009. 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.)

Ohio Revised Code 6111.041. Standards of water quality.

Ambient Water Quality Criteria for Bacteria - 1986. U.S. EPA Office of Water.

Page E-2                                                                                     Rule Number: 3745-1-07

EPA440/5-84-002. January 1986.

69 Fed. Reg. 67,218 (2004). Water Quality Standards for Coastal and Great Lakes Recreation Waters. U.S. EPA Final Rule. November 16, 2004.

Water Quality Standards for Coastal Recreation Waters: Considerations for States as They Select Appropriate Risk Levels. U.S. EPA Office of Water.

EPA-823-F-06-012. August 2006.

Water Quality Standards for Coastal Recreation Waters: Using Single Sample Maximum Values in State Water Quality Standards. U.S. EPA Office of Water. EPA-823-F-06-013. August 2006.

40 C.F.R. Part 131. Water quality standards.

Comments received during the interested party review comment period.

(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 ? No

(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