The Department proposes to add a new section to Chapter 62-620, F.A.C., to identify facilities subject to whole effluent toxicity testing. The proposed rule will also specify acute and chronic whole effluent toxicity permit requirements.

DEPARTMENT OF ENVIRONMENTAL PROTECTION

RULE NO: RULE TITLE
62-620.620: Guidelines for Establishing Specific Permit Conditions
PURPOSE AND EFFECT: The Department proposes to add a new section to Chapter 62-620, F.A.C., to identify facilities subject to whole effluent toxicity testing. The proposed rule will also specify acute and chronic whole effluent toxicity permit requirements.
SUMMARY: The proposed rule will identify facilities subject to whole effluent toxicity testing and specify acute and chronic whole effluent toxicity permit requirements.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
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.
SPECIFIC AUTHORITY: 403.061, 403.087, 403.8055 FS.
LAW IMPLEMENTED: 403.021, 403.051, 403.061, 403.062, 403.087, 403.088, 403.0885, 403.141, 403.161 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: January 29, 2008, 10:00 a.m.
PLACE: Environmental Regulation Commission, Florida Department of Environmental Regulation, Douglas Building, Conference Room A, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399
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: Nancy Ross with the Bureau of Water Facilities Regulation at [phone]. 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: Nancy Ross, Division of Water Resource Management, Florida Department of Environmental Protection, Mail Station 3540, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400, telephone [phone], e-mail: [e-mail], or facsimile [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

62-620.620 Guidelines for Establishing Specific Permit Conditions.

(1) through (2) No change.

(3) Whole Effluent Toxicity Testing.

(a) Whole effluent toxicity testing shall be required for the following wastewater facilities that discharge to surface waters:

1. Major wastewater facilities;

2. Minor domestic wastewater facilities with an approved pretreatment program or required to develop a pretreatment program;

3. Minor industrial wastewater facilities with a discharge that has the potential to result in aquatic toxicity; and

4. Any wastewater facility, regardless of size, which has a prior history of effluent toxicity.

(b) Unless provided elsewhere in this rule, facilities required to conduct whole effluent toxicity testing shall conduct chronic definitive tests starting with 100% effluent using a minimum of five dilution concentrations in accordance with paragraph 62-620.620(3)(g), F.A.C. Acute definitive tests shall not be required unless 50 percent or greater mortality is observed in any test concentration.

(c) Facilities with high rate dilution permitted under paragraph 62-4.244(3)(b), F.A.C., that are required to conduct whole effluent toxicity testing shall conduct acute definitive tests starting with 60% effluent using a minimum of five dilution concentrations in accordance with paragraph 62-620.620(3)(h), F.A.C. Chronic definitive tests shall not be required.

(d) Open Ocean Discharge facilities permitted under paragraph 62-4.244(3)(c), F.A.C., that are required to conduct whole effluent toxicity testing shall conduct chronic definitive tests starting with 60% effluent and using a minimum of five dilution concentrations in accordance with paragraph 62-620.620(3)(g), F.A.C.

1. Acute definitive tests shall not be required unless acute effects, as identified in paragraph 62-4.241(4)(a), F.A.C., are observed in the chronic definitive tests.

2. At the time of each permit renewal, a facility permitted under paragraph 62-4.244(3)(c), F.A.C., may submit data for three consecutive independent chronic whole effluent toxicity tests each spaced at least two months apart and representative of seasonal variations and flow. If all three tests meet the chronic whole effluent toxicity test limitations in paragraph 62-4.241(4)(b), F.A.C., then the facility may request that the permit renewal be issued with acute whole effluent toxicity testing according to paragraph 62-620.620(3)(h), F.A.C., in place of chronic whole effluent toxicity testing.

(e) Water treatment facilities that discharge demineralization concentrate, that have been granted a mixing zone under paragraph 62-4.244(3)(d), F.A.C., and that are required to conduct whole effluent toxicity testing shall conduct chronic definitive tests starting with 100% effluent and using a minimum of five dilution concentrations in accordance with paragraph 62-620.620(3)(g), F.A.C. Acute definitive tests shall not be required unless acute effects as identified in paragraph 62-4.241(5)(a), F.A.C., are observed in the chronic definitive tests.

(f) Facilities with intermittent discharges at frequencies and durations that do not enable sampling according to Section 8.3., in Methods EPA-821-R-02-013 and EPA-821-R-02-014 shall be required to conduct acute definitive tests starting with 100% effluent and using a minimum of five dilution concentrations in accordance with paragraph 62-620.620(3)(h), F.A.C. Chronic definitive tests shall not be required.

(g) Monitoring for chronic definitive whole effluent toxicity tests shall be as follows:

1. Monitoring Frequency. “Routine” toxicity tests are whole effluent toxicity tests conducted at regularly scheduled intervals once every three months unless otherwise specified in the facility’s permit.

2. Sample and Test Requirements.

a. Three 24-hour flow-proportioned composite samples of final effluent shall be collected in accordance with Section 8.3., in Methods EPA-821-R-02-013 and EPA-821-R-02-014 for each test conducted. If the duration of the discharge during a 24-hour composite sampling interval is less than 24-hours, the duration of the discharge shall be included in the facility’s report.

b. Test species, procedures, and quality assurance criteria shall be in accordance with Short-term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Marine and Estuarine Organisms, 3rd ed., EPA-821-R-02-014, incorporated herein by reference; or Short-term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Freshwater Organisms, 4th ed., EPA-821-R-02-013, incorporated herein by reference.

c. The permittee shall conduct 7-day chronic toxicity tests for survival and growth with the mysid shrimp, Americamysis (Mysidopsis) bahia, EPA Method #1007.0 and the inland silverside, Menidia beryllina, EPA Method #1006.0, concurrently, if the effluent salinity is 1.0 part per thousand or greater measured as conductivity and the discharge is to predominantly marine waters, as defined in Rule 62-302.200, F.A.C.

d. The permittee shall conduct 7-day chronic toxicity tests for survival and reproduction with the daphnid, Ceriodaphnia dubia, EPA Method #1002.0, and for survival and growth with the fathead minnow, Pimephales promelas, EPA Method #1000.0, concurrently, if the effluent salinity is less than 1.0 part per thousand measured as conductivity or when the discharge is to predominantly fresh waters, as defined in Rule 62-302.200, F.A.C.

e. If the effluent salinity is less than 1.0 part per thousand measured as conductivity, and the effluent chloride concentration is greater than 230 milligrams per liter, and the discharge is to predominantly marine waters, the permittee may conduct 7-day chronic toxicity tests for survival and growth with the mysid shrimp, Americamysis (Mysidopsis) bahia, EPA Method #1007.0, and the inland silverside, Menidia beryllina, EPA Method #1006.0, concurrently.

f. The whole effluent toxicity test species shall be determined based on the effluent salinity at the edge of the mixing zone for facilities that discharge to predominantly marine waters and that have been granted chronic toxicity mixing zones under paragraph 62-4.244(3)(a), F.A.C. The salinity at the edge of the mixing zone is determined by diluting the effluent to the concentration at the edge of the mixing zone with dilution water adjusted to the minimum salinity of the receiving water. The whole effluent toxicity test species shall be freshwater species if the discharge is to predominantly fresh waters.

g. For freshwater species, the control water and dilution water used shall be moderately hard water as described in EPA-821-R-02-013, Section 7. For saltwater species, the control water and dilution water used shall be artificial seawater diluted to the test salinity as described in EPA-821-R-02-014, Section 7.2. The test salinity shall be determined as follows:

(I) For the A. bahia bioassays, the effluent shall be adjusted to a salinity of 20 parts per thousand for the 100% effluent test using artificial sea salts as described in EPA-821-R-02-014, Section 7.2. The salinity of the control/dilution water (0% effluent) shall be 20 parts per thousand. When the salinity of the effluent is greater than 20 parts per thousand, no salinity adjustment shall be made to the effluent and the test shall be run at the effluent salinity. For facilities granted a chronic toxicity mixing zone, if the effluent salinity at the edge of the mixing zone as described in sub-subparagraph 62-620.620(3)(g)2.f., F.A.C., is greater than 20 parts per thousand, the salinity of the effluent and the control/dilution water (0% effluent) may be adjusted to match the minimum salinity of the effluent at the edge of the mixing zone, but shall not exceed the salinity range of the method.

(II) For the M. beryllina bioassays, when the salinity of the effluent is between 1 and 5 parts per thousand, the effluent shall be adjusted to a salinity of 5 parts per thousand using artificial sea salts as described in EPA-821-R-02-014, Section 7.2. When the salinity of the effluent is greater than 5 parts per thousand, no salinity adjustment shall be made to the effluent and the test shall be run at the effluent salinity. The salinity of the control/dilution water (0% effluent) shall be 5 parts per thousand. For facilities granted a chronic toxicity mixing zone, if the effluent salinity at the edge of the mixing zone as described in sub-subparagraph 62-620.620(3)(g)2.f., F.A.C., is greater than 5 parts per thousand, the salinity of the effluent and control/dilution water (0% effluent) may be adjusted to match the minimum salinity of the effluent at the edge of the mixing zone, but shall not exceed the salinity range of the method.

h. If 100% mortality occurs in all effluent concentrations before the end of any test, and control mortality is less than 20% at that time, the test (including the control) shall be terminated with the conclusion that the test fails.

i. If a chronic definitive test is invalid as established in EPA methods EPA-821-R-02-013 and EPA-821-R-02-014, a retest must be started within 14 days after the last day of the invalid chronic definitive test.

(h) Monitoring for acute definitive whole effluent toxicity tests shall be as follows:

1. Monitoring Frequency.

a. The monitoring frequency for facilities required to conduct routine acute definitive tests in accordance with paragraph 62-620.620(3)(c), F.A.C., shall be as required in subparagraph 62-620.620(3)(g)1., F.A.C.

b. The monitoring frequency for facilities required to conduct routine acute definitive tests in accordance with paragraph 62-620.620(3)(f), F.A.C., shall be established based on the frequency and characteristics of the discharge.

2. Sample and Test Requirements.

a. Tests shall be conducted on four separate grab samples collected at evenly-spaced (6-hr) intervals over a 24-hour period to catch any peaks of toxicity and to account for daily variations in effluent quality. The four grab samples, while used in eight bioassays (four bioassays for each species), represent one test. If the duration of the discharge is less than 24-hours, the duration of discharge shall be documented in the facility’s report.

b. Test species, procedures, and quality assurance criteria shall be in accordance with Methods for Measuring the Acute Toxicity of Effluents and Receiving Waters to Freshwater and Marine Organisms, 5th ed., EPA-821-R-02-012, incorporated herein by reference.

c. The permittee shall conduct 96-hour acute static renewal toxicity tests with the mysid shrimp, Americamysis (Mysidopsis) bahia, and the inland silverside, Menidia beryllina, concurrently, if the effluent salinity is 1.0 part per thousand or greater measured as conductivity and the discharge is to predominantly marine waters, as defined in Rule 62-302.200, F.A.C.

d. The permittee shall conduct 96-hour acute static renewal toxicity tests with the daphnid, Ceriodaphnia dubia, and the bannerfin shiner, Cyprinella leedsi, concurrently, if the effluent has a salinity of less than 1.0 part per thousand measured as conductivity or when the discharge is to predominantly fresh waters, as defined in Rule 62-302.200, F.A.C.

e. For facilities granted acute toxicity relief under paragraphs 62-4.244(3)(b) through (d), F.A.C., and that discharge to predominantly marine waters, the whole effluent toxicity test species shall be determined based on the salinity of the effluent diluted to the whole effluent acute toxicity limits in subsections 62-4.241(3) through (5), F.A.C., with control water adjusted to the minimum salinity of the receiving water.

f. For freshwater species, the control water and dilution water used shall be moderately hard water as described in EPA-821-R-02-012, Table 7. For saltwater species, the control water and dilution water used shall be artificial seawater diluted to the test salinity as described in EPA-821-R-02-012, Section 7.2.4. The test salinity shall be determined as follows:

(I) When the salinity of the effluent is between 1 and 7 parts per thousand, the following salinity adjustment shall be used. For the A. bahia bioassays, the effluent shall be adjusted to a salinity of 7 parts per thousand for the 100% effluent test using artificial sea salts. The control/dilution water shall be adjusted to 7 parts per thousand. No salinity adjustment shall be made for the M. beryllina bioassay test. The salinity of the control/dilution water (0% effluent) shall be adjusted to match the salinity of the effluent.

(II) When the salinity of the effluent is greater than 7 parts per thousand, no salinity adjustment shall be made to the effluent and the tests shall be run at the effluent salinity.

g. If 100% mortality occurs in all effluent concentrations before the end of any test, and control mortality is less than 10% at that time, the test (including the control) shall be terminated with the conclusion that the test fails.

h. If an acute definitive test is invalid as established in EPA method EPA-821-R-02-012, a retest must be started within 14 days of the last day of the invalid acute test.

(i) Acute and Chronic Whole Effluent Toxicity Test Failures.

1. A whole effluent toxicity test fails when the test does not meet the applicable acute or chronic whole effluent toxicity limits in Rule 62-4.241, F.A.C.

2. If a routine test fails, the permittee shall notify the Department within 21 days after the last day of the routine test.

3. The permittee shall conduct two additional follow-up tests on each species that failed the routine test. The first additional follow-up test shall be initiated within 28 days after the last day of the end of the failed routine test and weekly thereafter until a total of two valid additional follow-up tests are completed. If needed for intermittent discharges, the additional follow-up tests shall be initiated at the next discharge occurrence. The additional follow-up tests are intended to determine whether the whole effluent toxicity test failure of a facility’s effluent is intermittent or persistent.

a. Chronic whole effluent toxicity additional follow-up tests shall be conducted according to the monitoring procedures in paragraph 62-620.620(3)(g), F.A.C. The permittee may modify the dilution series in the second additional follow-up test to more accurately bracket the toxicity, such that at least two dilutions above and two dilutions below the target concentration and a control (0% effluent) are run.

b. Acute whole effluent toxicity additional follow-up tests shall be conducted according to the monitoring procedures in paragraph 62-620.620(3)(h), F.A.C., except that the second additional follow-up test shall be run on a single grab sample collected on the same day of the week and time when the greatest toxicity was identified in the routine or first additional follow-up test. The permittee may modify the dilution series in the second additional follow-up test to more accurately bracket the toxicity, such that at least two dilutions above and two dilutions below the target concentration and a control (0% effluent) are run.

4. In the event of three valid test failures (whether routine or additional follow-up tests) within a 12-month period, the permittee shall notify the Department within 21 days after the last day of the third test failure.

a. The permittee shall submit a plan for correction of the effluent toxicity within 60 days after the last day of the third test failure.

b. The plan shall be approved by the Department before initiation.

c. The plan shall be initiated within 30 days following the Department’s written approval of the plan. The permittee shall submit progress reports to the Department every three months to the address specified in the facility’s permit.

d. During the period of time that the approved plan is ongoing, the permittee shall conduct routine whole effluent toxicity testing at the frequency of once every three months, but shall not be required to perform additional follow-up tests. If a routine test is invalid as established in EPA Methods, EPA-821-R-02-012, EPA-821-R-013, or EPA-821-R-014, a retest must be started within 14 days after the end of the invalid test.

e. Following completion or termination of the plan, the frequency of monitoring for routine and additional follow-up whole effluent toxicity tests shall return to the schedule established in the facility wastewater permit. The permittee may terminate the plan at any time upon written verification by the Department that the facility has passed at least four consecutive valid routine whole effluent toxicity tests.

5. The additional follow-up testing and the plan required in subparagraphs 62-620.620(3)(i)3. and 4., F.A.C., do not preclude enforcement action.

(j) Acute and Chronic Whole Effluent Toxicity Tests Reporting Requirements.

a. The permittee shall mail a bioassay laboratory report for each routine test to the Department at the address specified in the permit within 30 days after the last day of the routine test. For additional follow-up tests, the bioassay laboratory report shall be mailed to the Department at the address specified in the permit within 30 days after the last day of the second valid follow-up test.

b. The laboratory reports shall be prepared according to Section 10, Report Preparation and Test Review, of the method required by sub-subparagraph 62-620.620(3)(g)2.b., F.A.C., for chronic whole effluent toxicity tests  or Section 12, Report Preparation and Test Review of the method required by sub-subparagraph 62-620.620(3)(h)2.b., F.A.C., for acute whole effluent toxicity tests.

c. All invalid test results shall be submitted with the repeat test results to the Department at the address specified in the permit.

(k) The Department shall increase or decrease the whole effluent toxicity test requirements in this rule taking any of the following factors into consideration:

1. The variability of the pollutants or pollutant parameters in the effluent indicated by the facility’s effluent characterization, the type of treatment facility, and types of industrial contribution to the influent of a domestic wastewater facility;

2. The dilution of the effluent in the receiving water indicated by the ratio of the effluent flow to the receiving water flow;

3. The degree of similarity between discharge points at facilities with multiple outfalls, where the sampling of one outfall is representative of more than one discharge point;

4. Site-specific considerations including the history of toxic impact or compliance problems at the wastewater facility which cause or contribute to adverse water quality impacts; or

5.  The existing and historical land-use, as well as existing and historical analytical data, when considering discharges that are primarily composed of storm water run-off.

(3) through (4) renumbered (4) through (5) No change.

Specific Authority  403.061, 403.087, 403.8055 FS. Law Implemented 403.021, 403.051, 403.061, 403.062, 403.087, 403.088, 403.0885, 403.141, 403.161 FS.  History–New 11-29-94, Amended 12-24-96, 10-23-00, ________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Janet G. Llewellyn, Director, Division of Water Resource Management
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Mimi A. Drew, Deputy Secretary, Regulatory Programs and Energy
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 11, 2007
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: January 26, 2007