The proposed rules: (1) revise subparagraph 62-4.242(3)(a)2., F.A.C., to delete text related to mixing zones in Outstanding Natural Resource Waters, (2) delete subsection 62-4.242(4), F.A.C., which pertains to equitable abatement, and (3) clarify ...

 

DEPARTMENT OF ENVIRONMENTAL PROTECTION

RULE NOS.:RULE TITLES:

62-4.050Procedures to Obtain Permits and Other Authorizations; Applications

62-4.242Antidegradation Permitting Requirements; Outstanding Florida Waters; Outstanding National Resource Waters; Equitable Abatement

62-4.244Mixing Zones: Surface Waters

PURPOSE AND EFFECT: The proposed rules: (1) revise subparagraph 62-4.242(3)(a)2., F.A.C., to delete text related to mixing zones in Outstanding Natural Resource Waters, (2) delete subsection 62-4.242(4), F.A.C., which pertains to equitable abatement, and (3) clarify that the fee in subparagraph 62-4.050(4)(q)1., F.A.C., for Site Specific Alternative Criteria, applies to each application instead of each parameter.

SUMMARY: The Department is amending Chapter 62-4, F.A.C., to: (1) revise subparagraph 62-4.242(3)(a)2., F.A.C., to delete text related to mixing zones in Outstanding Natural Resource Waters, (2) delete subsection 62-4.242(4), F.A.C., which pertains to equitable abatement, and (3) clarify that the fee in subparagraph 62-4.050(4)(q)1., F.A.C., for Site Specific Alternative Criteria, applies to each application instead of each parameter.

The Department conducted an initial set of public workshops on June 10 and June 11, 2015, in Tallahassee and Orlando, respectively, followed by public workshops on September 15, September 16, and September 17, 2015, in West Palm Beach, Orlando, and Tallahassee, respectively.

OTHER RULES INCORPORATING THIS RULE: Chapter 62-4, F.A.C., is referenced by the following rules:62-4.001, 62-4.020, 62-4.021, 62-4.030, 62-4.040, 62-4.050, 62-4.052, 62-4.053, 62-4.055, 62-4.060, 62-4.070, 62-4.080, 62-4.090, 62-4.100, 62-4.110, 62-4.120, 62-4.130, 62-4.150, 62-4.160, 62-4.200, 62-4.210, 62-4.220, 62-4.240, 62-4.241, 62-4.242, 62-4.243, 62-4.244, 62-4.246, 62-4.249, 62-4.250, 62-4.510, 62-4.520, 62-4.530, 62-4.540, 62-25.020, 62-25.025, 62-25.035, 62-25.060, 62-25.801, 62-25.900, 62-40.120, 62-40.210, 62-45.030, 62-45.050, 62-45.070, 62-45.110, 62-45.170, 62-110.106, 62-110.107, 62-113.200, 62-204.800, 62-210.200, 62-210.300, 62-210.310, 62-210.700, 62-210.900, 62-212.720, 62-213.205, 62-213.420, 62-213.430, 62-213.440, 62-214.350, 62-296.570, 62-296.600, 62-302.200, 62-302.300, 62-302.530, 62-302.700, 62-302.800, 62-303.200, 62-303.320, 62-330.100, 52-330.200, 62-330.201, 62-330.405, 62-330.630, 62-330.901, 62-343.020, 62-343.070, 62-343.090, 62-343.100, 62-343.130, 62-346.030, 62-345.050, 62-346.051, 62-346.071, 62-346.301, 62-520.470, 62-528.200, 62-528.300, 62-528.305, 62-528.307, 52-528.400, 62-528.415, 62-528.440, 62-528.455, 62-529.630, 62-528.705, 62-528.710, 62-555.401, 62-555.405, 62-555.520, 62-555.528, 62-555.530, 62-555.533, 62-555.536, 62-600.120, 62-600.200, 62-600.300, 62-600.430, 62-600.520, 62-604.300, 62-604.600, 62-610.200, 62-610.300, 62-610.554, 62-610.555, 62-610.650, 62-610.670, 62-610.810, 62-610.820, 62-610.830, 62-610.850, 62-610.860, 62-610.890, 62-611.200, 62-611.450, 62-611.500, 62-611.700, 62-620.100, 62-620.300, 62-620.310, 62-620.320, 62-620.325, 62-620.335, 62-620.610, 62-620.620, 62-620.625, 62-620.705, 62-620.710, 62-621.300, 62-621.303, 62-621.500, 62-624.100, 62-624.300, 62-624.810, 62-625.420, 62-625.600, 62-640.300, 62-650.200, 62-650.300, 62-650.400, 62-650.500, 62-660.200, 62-660.400, 62-660.801, 62-660.802, 62-660.803, 62-660.804, 62-660.805, 62-660.806, 62-671.310, 62-673.310, 62-673.320, 62-673.340, 62-673.630, 62-701.315, 62-701.320, 62-701.710, 62-701.803, 62-709.300, 62-710.210, 62-710.800, 62-711.300, 62-711.801, 62-713.800, 62-730.200, 62-730.220, 62-730.290, 62-730.293, 62-737.800, 62B-34.030, 62B-49.005, 62B-49.006, and 62B-49.012. Rule 62-4.050, F.A.C., is referenced by the following rules: 62-4.050, 62-4.052, 62-4.053, 62-4.080, 62-45.110, 62-110.107, 62-113.200, 62-210.300, 62-210.310, 62-210.900, 62-213.420, 62-330.200, 62-330.201, 62-343.020, 62-343.070, 62-343.100, 62-343.130, 62-346.071, 62-528.300, 62-528.440, 62-528.455, 62-528.630, 62-555.401, 62-555.405, 62-555.520, 62-555.528, 62-555.536, 62-604.600, 62-620.100, 62-620.310, 62-620.320, 62-620.325, 62-620.335, 62-620.710, 62-621.300, 62-621.500, 62-624.100, 62-624.300, 62-624.310, 62-673.320, 62-701.315, 62-701.320, 62-709.300, 62-710.800, 62-711.300, 62-730.220, 62-737.800, and 62B-49.006, F.A.C. Rule 62-4.242, F.A.C., is referenced by the following rules: 62-4.050, 62-4.242, 62-40.120, 62-40.210, 62-302.530, 62-302.700, 62-330.200, 62-330.405, 62-330.630, 62-346.050, 62-346.051, 62-346.301, 62-600.300, 62-600.520, 62-610.300, 62-610.554, 62-610.555, 62-610.810, 62-610.820, 62-610.830, 62-610.860, 62-611.500, 62-650.500, F.A.C. Rule 62-4.244, F.A.C., is referenced by the following rules: 62-4.241, 62-4.244, 62-110.106, 62-302.530, 62-302.800, 62-330.200, 62-346.050, 62-346.051, 62-346.301, 62-600.430, 62-600.520, 62-620.620, 62-620.625, 62-621.303, 62-650.300, F.A.C.

EFFECT ON THOSE OTHER RULES: The proposed amendments are not expected to have any effect on these other rules.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: the proposed revisions clarify that the fee in subparagraph 62-4.050(4)(q)1., F.A.C., for Site Specific Alternative Criteria, applies to each application instead of each parameter, since the analysis and workload for multiple parameter applications is similar to single parameter applications. The proposed revisions to subparagraph 62-4.242(3)(a)2., F.A.C., delete text related to mixing zones in Outstanding Natural Resource Waters. The U.S. Environmental Protection Agency has specifically disapproved this rule provision as inconsistent with the federal Clean Water Act. There is no effect from deletion of this provision, since there are no Outstanding National Resource Waters in Florida. The proposed revisions delete subsection 62-4.242(4), F.A.C., which pertains to equitable abatement. This rule provision allows a new source to an impaired water to petition the Department to (re)allocate the relative levels of abatement responsibility among existing discharges. This is inconsistent with both the Total Maximum Daily Load and Basin Management Action Plan process, since allowable loads are equitably allocated under that process. The provision could undermine both efforts. The provision is also inconsistent with Water Quality Credit Trading under Chapter 62-306, F.A.C., and Section 403.067, F.S. The Department also notes that this provision has rarely, if ever, been used, despite being in effect for a number of decades. There are no additional costs to the public or the Department as a result of any of the proposed revisions.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 373.016, 373.026, 373.043, 373.109, 373.171, 373.4131, 373.414, 373.418, 373.421, 403.051, 403.061, 403.062, 403.087, 403.088, 403.0882, 403.504, 403.704, 403.704(30), 403.804, 403.805 FS.

LAW IMPLEMENTED: 373.016, 373.109, 373.171, 373.309, 373.409, 373.413, 373.4135, 373.414(9), (11), (12)(a), (13), (14), (15), (16), 373.4145, 373.418, 373.421, 403.021, 403.051, 403.061, 403.087, 403.0877, 403.088, 403.0882, 403.0885, 403.101, 403.111, 403.121, 403.141, 403.161, 403.182, 403.201, 403.502, 403.702, 403.708, 403.722, 403.861(7) FS.

A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: Wednesday, December 9, 2015, 9:00 a.m.

PLACE: Florida Department of Environmental Protection, Marjory Stoneman Douglas Building, Conference Room A, 3900 Commonwealth Boulevard, Tallahassee, Florida

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Eric Shaw at [phone] or the below information. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Eric Shaw, Department of Environmental Protection, Water Quality Standards Program, MS 6511, 2600 Blair Stone Road, Tallahassee, FL 32399-2400, [phone] or e-mail: [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

CHAPTER 62-4

PERMITS

62-4.050 Procedures to Obtain Permits and Other Authorizations; Applications.

(1) through (3) No change.

(4) Processing fees are as follows:

(a) through (p) No change.

(q)  Unless otherwise specified in this rule, the fee for applications for relief mechanisms shall be as follows:

1. Site specific alternative criteria for each application water quality criteria$15,000

2. through 6. No change.

(r) through (z) No change.

(5) through (8) No change.

Rulemaking Authority 373.026, 373.043, 373.109, 373.4131, 373.414, 373.418, 373.421, 403.061, 403.087, 403.704(30), 403.805 FS. Law Implemented 373.109, 373.309, 373.409, 373.413, 373.4135, 373.414(9), (11), (12)(a), (13), (14), (15), (16), 373.4145, 373.418, 373.421, 403.061, 403.087, 403.0877, 403.088, 403.0885, 403.722, 403.861(7) FS. History–New 5-17-72, Amended 6-19-74, 7-8-82, Formerly 17-4.05, Amended 11-15-87, 8-31-88, 10-3-88, 4-4-89, 3-19-90, 6-11-90, 3-7-91, 3-18-91, 5-30-91, 10-30-91, 11-16-92, 12-21-92, 7-11-93, 2-2-94, Formerly 17-4.050, Amended 11-23-94, 4-30-95, 7-4-95, 12-15-98, 10-22-00, 6-1-01, 1-30-03, 2-19-03, 4-3-03, 5-1-03, 2-7-06, 10-31-07, 4-21-09, 5-9-13, 10-1-13,   -  -  .

 

62-4.242 Antidegradation Permitting Requirements; Outstanding Florida Waters; Outstanding National Resource Waters; Equitable Abatement.

(1) through (2) No change.

(3) Standards Applying to Outstanding National Resource Waters:

(a) All discharges or activities that may cause degradation of water quality in Outstanding National Resource Waters are prohibited, other than:

1. No change.

2. Those discharges or activities described in sub-subparagraphs 62-4.242(2)(a)1.b., 62-4.242(2)(a)1.c., and 62-4.242(2)(a)2.b., and 62-4.242(2)(b)2., F.A.C.

(b) – (e) No change.

(4) Equitable Abatement.

(a) It shall be Department policy to further protect and enhance the quality of those surface waters whose quality has been artificially lowered below the quality necessary to support their designated uses. For such waters, no new activity or discharge shall be issued a Department license to construct unless the applicant affirmatively demonstrates that:

1. Water quality standards once achieved would not be violated as a result of the proposed activity or discharge;

2. The proposed activity or discharge is necessary or desirable under federal standards; and

3. The proposed activity or discharge is clearly in the public interest.

(b) To allocate equitably the relative levels of responsibility for abatement among persons directly discharging significant amounts of pollutants into waters which fail to meet one or more of the water quality criteria applicable to those waters, it is necessary to determine the amounts of those pollutants contributed by each of those persons and to consider all factors relevant to the equitable allocation of that responsibility. The following provisions of this section prescribe the means by which the Department, upon the petition of a license applicant, will equitably allocate among such persons the relative levels of abatement responsibility of each for abatement of those pollutants and by which it will establish for each of those persons, if necessary, an abatement program and schedule to accomplish any abatement determined necessary under the provisions of this section.

(c)1. For a surface water body, or portion thereof, which is determined by the Department to fail to meet one or more of the water quality criteria applicable to that water body, an applicant for a license to construct or operate a stationary installation to discharge wastes which contributes, or will contribute, to that failure may petition the Department in writing for an equitable allocation of the relative levels of responsibility for abatement among the stationary installations which discharge significant amounts of one or more of the pollutants which contribute to the failure of those waters to meet the water quality criterion (a) specified in the petition.

2. The applicant shall identify in the petition the location of each of the existing stationary installations which it wishes the Department to consider and the legal name and mailing address of the owners of each of those stationary installations.

3. The county government within which each stationary installation identified under subparagraphs 1. and 2. of this paragraph is located shall be given notice of the proceeding, as shall the municipality, if the stationary installation is located within a municipality.

4. The Department may identify any other owners of existing stationary installations which it deems necessary to allocate equitably the relative levels of responsibility for abatement of pollutants which contribute to the failure of those waters to meet any criterion specified in the petition.

5. Those owners identified by the petitioner and the Department shall be joined as parties in the licensing proceeding. Nothing shall preclude any party from requiring the joinder, as a party to the proceeding, of the owner of any other existing stationary installation upon written motion and an affirmative demonstration that such stationary installation is discharging significant amounts of one or more pollutants which contribute to the failure of the subject water body to meet any criterion specified in the petition. A motion for joinder shall be filed within 20 days of receipt by the movant of notice that it has been joined in the proceeding.

(d) License applications filed by the petitioner, or any other party, for waste discharges which are identified pursuant to paragraph (2)(c) above in the equitable allocation process under this section shall be deemed incomplete or the subject of a dispute of material fact for purposes of Chapter 120, F.S. However, if an application for renewal of an existing license has been timely filed with the Department, the existing license shall remain in full force and effect until such time as a new or modified license has been issued pursuant to paragraph (2)(k).

(e) Prior to determining the most equitable allocation of responsibility for abatement under paragraph (f), the Department shall determine the percentage and quantification of the total contribution and the contribution by each of the stationary installations identified under paragraph (c) of the pollutants identified under paragraph (c) which contributes to the failure of the subject waters to meet the water quality criterion specified in the petition. Provided, however, that the Department, upon petition by an affected party pursuant to Rule 62-3.031, F.A.C., may establish more appropriate less stringent criteria upon which to base quantification calculations. For the purpose of performing quantification calculations, the Department shall assume waste discharges entering the water body from an adjacent state as a separate point source of pollution.

(f) The following factors shall be considered by the Department in determining the most equitable allocation among the parties identified pursuant to paragraph (c) of the relative levels of responsibility of each for abatement of the pollutants with which the petition is concerned:

1. The percentage and quantification of the abatement achieved by abatement techniques previously undertaken, if any, by each of those stationary installations and the costs previously incurred, if any, with respect to each, along with any economic or production benefits gained from said abatement techniques.

2. The identification and estimated cost of alternative abatement techniques available for each stationary installation. Identified techniques shall include:

a. Those techniques which would abate the level of pollutants to the degree required by the quantities of contributed pollutants determined under paragraph (e), or the maximum degree possible, if the degree required is not presently attainable.

b. Those techniques which would abate additional quantities of pollutants beyond the quantities determined under paragraph (e) and the approximate percentage of additional abatement which could be provided.

3. The economic and production impacts of additional abatement on each party, if any.

4. Other environmental impacts of available abatement techniques.

(g) In determining the percentages and quantities under paragraph (e), the Department shall use the best scientific and technical information, methods, and data in the possession of the Department.

(h) Each party to the licensing proceeding shall provide the Department, and each other party except as provided by Section 403.111, F.S., with any information which is requested by the Department and necessary for the determination under paragraphs (e) and (f). With regard to the determination under sub-subparagraph (f)2.ii., however, parties shall only be required to provide that information within their possession at the time of the Department’s request. The Department shall make available to a party any information in its possession, and shall provide reasonable assistance to any party in identifying that information which would assist the party in complying with the Department’s request.

(i) Each party shall undertake a program approved by the Department to abate the quantity of contributed pollutants for which it is determined responsible under paragraph (e). Such abatement program shall include but not be limited to, a quantified effluent limitation, best management practices or specific techniques for abatement, and a schedule for commencement and completion of the required abatement. In establishing an abatement schedule, the Department shall consider the previous abatement efforts and their costs, the reasonable remaining usable life of the discharge facility, and any commitments for phasing out the discharge from the facility.

(j) An abatement program required under paragraph (i) may include the agreement of one owner to undertake additional abatement on behalf of another owner. When such an agreement has been executed fully and filed in writing with the Department within a reasonable period of time set by the Department, the agreement shall be recognized in the licenses of the signatory parties to the extent that it satisfies the levels of abatement, determined for those parties under paragraph (e).

(k) Each party shall be issued an appropriate license or modified license, which shall include any abatement program required of the party and approved under paragraph (i), as well as any other conditions authorized by Chapter 403, F.S.

Rulemaking Authority 373.016, 373.171, 403.061, 403.062, 403.087, 403.088, 403.504, 403.704, 403.804, 403.805 FS. Law Implemented 373.016, 373.171, 403.021, 403.061, 403.087, 403.088, 403.101, 403.111, 403.121, 403.141, 403.161, 403.182, 403.502, 403.702 FS. History–New 3-1-79, Amended 5-14-81, 9-30-82, 3-31-83, 4-9-84, 11-29-84, 12-11-84, 5-8-85, 7-22-85, 8-31-88, 9-13-89, 10-4-89, Formerly 17-4.242, Amended 1-23-95, 5-15-02, 8-1-13,   -  -  .

 

62-4.244 Mixing Zones: Surface Waters.

(1) through (2) No change.

(3)(a) No change.

(b) Except for open ocean discharges described in paragraph (c) and ionic imbalanced demineralization concentrate discharges, described in paragraph (d) below, the maximum concentration of wastes in the mixing zone may exceed the 96 hr. LC50 only when all of the following conditions are satisfied.

1. through 2. No change.

3. Toxicity must be less than acute [as defined in subsection 62-302.200(1) 62-3.021(1), F.A.C.] no more than a distance of 50 times the discharge length scale in any spatial direction. The discharge length scale is defined as the square root of the cross-sectional area of any discharge outlet. In the case of a multiport diffuser, this requirement must be met for each port, using the appropriate discharge length scale for that port. This restriction will ensure a dilution factor of at least 10 within this distance under all possible circumstances, including situations of severe bottom interaction, surface interaction, or lateral merging.

4. through 5. No change.

(c) through (d) No change.

(4) through (6) No change.

(7) Additional relief from mixing zone restrictions necessary to prevent significant impairment of a designated use is through:

(a) through (b) No change.

(c) Modification of the requirements of this section for specific criteria by the Secretary upon compliance with the notice and hearing requirements for mixing zones set forth in paragraph (1)(c) above and upon affirmative demonstration by an applicant that the applicant’s discharge from a source existing on the effective date of this rule complies with best technology economically achievable, best management practices, or other requirements set forth in Chapter 62-600 62-6, F.A.C., and the economic, environmental and social costs of compliance with the existing criteria outweigh the social, environmental, and economic benefits of compliance with more stringent discharge limitations necessary to comply with mixing zone requirements of subsection 62-4.244(1), F.A.C., and the provisions relating to dissolved oxygen in Rule 62-4.244, F.A.C.

1. through 2. No change.

(d) No change.

Rulemaking Authority 403.051, 403.061, 403.062, 403.087, 403.0882, 403.804, 403.805 FS. Law Implemented 403.021, 403.051, 403.061, 403.087, 403.088, 403.0882, 403.101, 403.121, 403.141, 403.161, 403.182, 403.201, 403.502, 403.702, 403.708 FS. History–Formerly part of 17-3.05, Revised and Renumbered 3-1-79, Amended 10-2-80, 1-1-83, 2-1-83, 2-19-84, 4-26-87, 8-31-88, 10-17-90, Formerly 17-4.244, Amended 3-26-00, 12-13-05, 8-1-13,   -  -  .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Tom Frick

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Jonathan P. Steverson

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 23, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: May 19, 2015