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COMMITTEE REPORT
April 17, 2002
H. 4858
S. Printed 4/17/02--H.
Read the first time March 6, 2002.
To whom was referred a Bill (H. 4858) to amend the Code of Laws of South Carolina, 1976 by adding Section 48-1-87 so as to enact the "Aquatic Toxicity Protection Act", etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/SECTION 1. This act may be cited as the "Aquatic Toxicity Protection Act".
SECTION 2. The 1976 Code is amended by adding:
"Section 48-1-87. (A) The department shall impose whole effluent toxicity ('WET') NPDES permit limitations expressed in terms of survival endpoints where, based on the mixing zone authorized in subsection (E) below, it determines that a discharge has the reasonable potential to cause or contribute to an excursion of any water quality criteria in R.61-68, other than numeric criteria for specific pollutants, that may apply to the protection of indigenous aquatic organisms from lethality. A reasonable potential determination must be based:
(1) on a weight-of-evidence approach and, whenever feasible, must give priority consideration to the actual instream biological condition using data on indigenous organisms present above and below an outfall and, additionally or alternatively, from nearby reference waterbodies;
(2) exclusively on WET test results at levels above which there is adequate confidence that test survival in the effluent is statistically significantly different from test survival in the control.
(B) The department shall promulgate as an amendment to R.61-68 a methodology for interpreting and implementing any water quality criteria that may apply to the protection of indigenous aquatic life from sublethal effects, including reproduction and growth. This methodology must be based on the following studies:
(1) The department shall perform studies to develop a valid scientific correlation between each standard WET test sublethal endpoint (e.g. Ceriodaphnia reproduction, fathead minnow survival, etc.) and the biological integrity of lakes, streams, and estuaries in South Carolina. Biological integrity includes the richness, abundance, and balanced community structure of indigenous aquatic organisms.
(2) The department shall perform studies to calibrate EPA's standard toxicity testing species and methods to the unique natural chemistry found in the lakes, streams, groundwater, and natural storm water runoff of South Carolina. These studies shall establish means for the department to distinguish and to account for, in reasonable potential and permit limit derivation proceedings, the level of adverse effect on nonindigenous standard test species actually caused by discharges of pollutants, rather than by natural water quality factors outside the control of the discharger.
(3) The department shall undertake a study as necessary to identify fish and invertebrate species, native to South Carolina, that can be used for WET testing in South Carolina. This study shall include sensitivity analyses to validate native species for use in further WET tests per EPA guidance.
(C) Until such time as the department promulgates the methodology required in subsection (B), the department shall impose WET NPDES permit limitations expressed in terms of sublethal endpoints only where it determines, based on the mixing zone authorized under subsection (E), that a discharge has the reasonable potential to cause or contribute to an excursion of any water quality criteria, other than numeric criteria for specific pollutants, that may apply to the protection of indigenous aquatic life from sublethal effects. The department shall find reasonable potential only where it can document, based on scientifically established and statistically sound procedures and results, that a substantially significant relationship exists between sublethal WET test results for a particular discharge and the corresponding degree of adverse impact on the indigenous biological community downstream of the discharge.
(D) The department must not use the results of sublethal WET testing as the basis for imposing requirements on permittees, other than permit limitations justified in subsection (C), unless the effluent has exhibited significant and persistent elevated WET test results.
(E) For purposes of performing WET reasonable potential determinations and, where justified, setting WET permit limitations, the department shall interpret and implement any applicable water quality criteria in R. 61-68 based on the actual frequency, duration, and magnitude of exposure to potentially toxic discharges. Among other actions, the department shall:
(1) evaluate chronic instream exposure based on the flow statistically calculated to represent the lowest average flow conditions that occur continuously for a seven-day period once every ten years (7Q10) or other reasonably equivalent low flow conditions in waterbodies other than streams, such as lakes and ponds;
(2) evaluate acute instream exposure based on the flow statistically calculated to represent the lowest average flow conditions that occur continuously for a one-day period once every ten years (1Q10), or other reasonably equivalent low flow conditions in waterbodies other than streams, such as lakes and ponds;
(3) use alternative flow conditions where justified by hydrological controls that ensure minimum flow conditions higher than the above flows;
(4) deem such flows as consistent with its policy in R.61-68 of minimizing mixing zones without regard to past or expected effluent quality;
(5) consider, at the request of an individual discharger, setting permit limitations based on achieving any applicable water quality criteria under R.61-68 during actual flow conditions that may be present above the minimum flows in the preceding items (1) through (3).
(F) The department shall develop guidance containing Data Quality Objectives that define the level of analytical accuracy and precision necessary to determine compliance with WET effluent limitations when using EPA's standard WET test methods in 40 C.F.R. Part 136. The Data Quality Objectives must be translated into additional mandatory test acceptance criteria. The Data Quality Objectives must include an enhanced laboratory certification program that requires unconditional adherence to EPA approved methods.
(G) The department shall disclose, in the rationale for any NPDES permit in which a WET limit is imposed, the number of excursions that are statistically expected to arise during the permit term due to statistical error or other analytical variability rather than to the presence of actual toxicity in excess of the permit limitation.
(H) The department must not impose color limitations in NPDES permits unless it promulgates in R.61-68 a methodology for interpreting and implementing any water quality criteria that may be applicable to color. This methodology shall result in permit limitations only where the department can demonstrate a substantial correlation between the test methods to be used for permit compliance and the particular standard the department is seeking to protect.
(I) The department shall, no later than one year following enactment of this provision, promulgate a modification to R.61-68 clarifying that the provisions pertaining to use reclassification at R.61-68E.6 also are applicable to the issuance of variances from the water quality criteria for a period not to exceed the term of an NPDES permit, subject to renewal upon expiration of that period."
SECTION 3. This act takes effect upon approval by the Governor./
Renumber sections to conform.
Amend totals and title to conform.
CHARLES R. SHARPE for Committee.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976 BY ADDING SECTION 48-1-87 SO AS TO ENACT THE "AQUATIC TOXICITY PROTECTION ACT" TO REQUIRE THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL TO IMPOSE TOXICITY NPDES PERMIT LIMITATIONS IF A DISCHARGE HAS THE POTENTIAL TO IMPACT WATER QUALITY UNDER CERTAIN CONDITIONS AND TO FURTHER DIRECT THE DEPARTMENT IN TESTING AND DEVELOPING METHODOLOGIES TO IMPLEMENT THIS REQUIREMENT.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "Aquatic Toxicity Protection Act".
SECTION 2. The 1976 Code is amended by adding:
"Section 48-1-87. (A) The department shall impose whole effluent toxicity ('WET') NPDES permit limitations expressed in terms of survival endpoints where, based on the mixing zone authorized in subsection (E) below, it determines that a discharge has the reasonable potential to cause or contribute to an excursion of any water quality criteria in R.61-68, other than numeric criteria for specific pollutants, that may apply to the protection of indigenous aquatic organisms from lethality. A reasonable potential determination must be based:
(1) on a weight-of-evidence approach and, whenever feasible, must give priority consideration to the actual instream biological condition using data on indigenous organisms present above and below an out fall and or from nearby reference waterbodies;
(2) exclusively on WET test results at levels above which there is adequate confidence that test survival in the effluent is statistically significantly different from test survival in the control.
(B) The department shall promulgate as an amendment to R.61-68 a methodology for interpreting and implementing any water quality criteria that may apply to the protection of indigenous aquatic life from sublethal effects, including reproduction and growth. This methodology must be based on the following studies:
(1) The department shall perform studies to develop a valid scientific correlation between each standard WET test sublethal endpoint (e.g. Ceriodaphnia reproduction, fathead minnow survival, etc.) and the biological integrity of lakes, streams, and estuaries in South Carolina. Biological integrity includes the richness, abundance, and balanced community structure of indigenous aquatic organisms.
(2) The department shall perform studies to calibrate EPA's standard toxicity testing species and methods to the unique natural chemistry found in the lakes, streams, groundwater, and natural storm water runoff of South Carolina. The study shall establish means for the department to distinguish and to account for the reasonable potential and permit limit derivation proceedings, the level of adverse effect on nonindigenous standard test species actually caused by discharges of pollutants, rather than by natural water quality factors outside the control of the discharger.
(3) The department shall undertake a study as necessary to identify fish and invertebrate species, native to South Carolina that can be used for WET testing in South Carolina. The study shall include sensitivity analyses to validate native species for use in further WET tests per EPA guidance.
(C) Until such time as the department promulgates the methodology required in subsection (B), the department shall impose WET NPDES permit limitations expressed in terms of sublethal endpoints only where it determines, based on the mixing zone authorized and under subsection (E), that a discharge has the reasonable potential to cause or contribute to an excursion of any water quality criteria, other than numeric criteria for specific pollutants, that may apply to the protection of indigenous aquatic life from sublethal effects. The department shall find reasonable potential only where it can document, based on scientifically established and statistically sound procedures and results, that a substantially significant relationship exists between sublethal WET test results for a particular discharge and the corresponding degree of adverse impact on the indigenous biological community downstream of the discharge.
(D) The department must not use the results of sublethal WET testing as the basis for imposing requirements on permittees, other than permit limitations justified in subsection (C), unless the effluent has exhibited significant and persistent elevated WET test results.
(E) For purposes of performing WET reasonable potential determinations and, where justified, setting WET permit limitations, the department shall interpret and implement any applicable water quality criteria in R. 61-68 based on the actual frequency, duration, and magnitude of exposure to potentially toxic discharges. Among other factors, the department shall:
(1) evaluate chronic instream exposure based on the flow statistically calculated to represent the lowest average flow conditions that occur continuously for a seven-day period once every ten years (7Q10) or above reasonably equivalent low flow conditions in waterbodies other than streams;
(2) evaluate acute instream exposure based on the flow statistically calculated to represent the lowest average flow conditions that occur continuously for a one-day period once every ten years (1Q10), or above reasonably equivalent low flow conditions in waterbodies other than streams;
(3) use alternative flow conditions where justified by hydrological controls that ensure minimum flow conditions higher than the above flows;
(4) deem such flows as consistent with its policy in R.61-68 of minimizing mixing zones without regard to past or expected effluent quality;
(5) consider, at the request of an individual discharger, setting permit limitations based on achieving any applicable water quality criteria under R.61-68 during actual flow conditions that may be present above the minimum flows in the preceding items.
(F) The department shall develop guidance containing Data Quality Objectives that define the level of analytical accuracy and precision necessary to determine compliance with WET effluent limitations when using EPA's standard WET test methods in 40 C.F.R. Part 136. The Data Quality Objectives must be translated into additional mandatory test acceptance criteria. The Data Quality Objectives must include an enhanced laboratory certification program that requires unconditional adherence to EPA approved methods.
(G) The department shall disclose, in the rationale for any NPDES permit in which a WET limit is imposed, the number of excursions that are statistically expected to arise during the permit term due to statistical error or other analytical variability rather than to the presence of actual toxicity in excess of the permit limitation.
(H) The department must not impose color limitations in NPDES permits unless it promulgates in R.61-68 a methodology for interpreting and implementing any water quality criteria that may be applicable to color. This methodology shall result in permit limitations only where the department can demonstrate a substantial correlation between the test methods to be used for permit compliance and the particular standard the department is seeking to protect.
(I) The department shall, no later than one year following enactment of this provision, promulgate a modification to R.61-68 clarifying that the provisions pertaining to use reclassification at R.61-68E.6 also are applicable to the issuance of variances from the water quality criteria for a period not to exceed the term of a NPDES permit, subject to renewal upon expiration of that period."
SECTION 3. This act takes effect upon approval by the Governor.
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