TOXICITY PROGRAM IMPLEMENTATION PROTOCOLS

July 1998

A. When evaluations are to be done. These items describe when test results will be evaluated for Reasonable Potential and Exceedences, and when notifications will be provided to licensees. When exceedences are documented, the existing license will be opened within 180 days of the Department's approval of a TRE to add appropriate limits on the discharge of the pollutant(s) in question. Licensees are encouraged to review test results at the time they are submitted to DEP and address questions or problems to their assigned facility inspector.

A. 1 In most cases, RP should be calculated for formal compliance evaluations only when at least a screening level number of tests (1 to 4) has been completed. However, when communicating with licensees, preliminary determinations based on the present number of tests should be given, along with appropriate analysis and explanations. Once RP has been determined, license limits must be applied when the license is renewed or modified if subsequent tests conducted prior to license renewal or modification haven't removed the RP.

A. 2 When a licensee has for any reason completed a number of tests equivalent to what is required under the rule, those tests will be evaluated for RP notwithstanding when testing would have been scheduled under the rule. Information on changed RP status will be provided to the licensee.

A.3 All tests will be evaluated for exceedences upon receipt, and included in the monthly Non-Compliance Review process. When there is a preliminary finding of an exceedence, the licensee will be notified for verification of test results and initiation of efforts to address the exceedence.

B. Administrative / Procedural. This item clarifies what additional facilities or situations may be subject to the Toxics Rule.

B. 1 Landfills with leachate collection that discharges directly to surface waters via an outfall would be subject to the rule. They would fall into the "other" category in the rule; their inclusion is a case-by-case determination based, in part, on the characteristics of the discharge. EPA has proposed effluent standards for direct discharges of leachate.

C. Facility information / Basis for evaluation. These items address some of the information about the facility and receiving water needed to evaluate toxicity testing results. They cover how a dilution factor is calculated, considerations for when discharges occur and background levels of pollutants in the receiving water.

C. 1 When calculating dilution factors, the default position is that ¼ of 1Q10 does apply unless DEP verifies that it does not. Where records are incomplete or inconclusive, licensees will be responsible for providing information about their outfalls and may need to do some studies on local conditions if they want to document a change to DEP's determinations. DEP will provide technical assistance as resources allow. Changes may be made in a facility's status when the physical situation changes, new or more complete information becomes available, or to correct erroneous or incomplete information.

C. 2 The rule covers when marine mixing models are used to calculate dilution factors. Some judgment is needed to consider local conditions such as currents, etc. Licensees may be asked to provide information. The Division of Environmental Assessment (DEA) will make the final decisions.

C. 3 With a non-continuous discharge (such as a lagoon which can be impounded), the dilution factors can be based on a guaranteed minimum stream flow below which a discharge will not occur. The licensee must submit a request for a license modification that reflects the different minimum stream flow. Stream flow will be a monitoring and reporting requirement, and will include an accurate means of measuring stream flow which is calibrated annually.

C. 4 Background ambient data should be used in calculating exceedences and RP’s, but the current data base is incomplete and of questionable quality, and these issues need to be addressed first. Data available from other monitoring programs and studies will be used where possible. The Department is planning to provide recommendations on the use of ambient data in October, 1998.

D. Laboratory testing and sampling. Good quality sampling and testing are essential. These items cover issues which have come up regarding the methods or specific procedures for certain tests.

D. 1 Mercury testing must be conducted using EPA method 1631.

D. 2 In determining the species for WET testing in estuaries, some case-by-case judgment will be needed, giving consideration to the effluent characteristics, organisms prevalent in the area, location of head of tide, currents and salinity. DEA will make the final decisions on a case-by-case basis.

D. 3 Make sure that the lowest WET dilution is at or less than the facility’s critical level. Inspectors should remind facilities and labs where this is an issue.

D. 4 Where a brine solution is used to adjust the salinity of a WET test sample, the maximum report will probably be 70-80%. Actual dilutions must be reported; nominal dilutions are not acceptable. If necessitated by a facility's critical value, sea salt must be used. EPA may be moving to requiring the use of sea salt in all cases, thus removing the issue.

D. 5 Generally, tests should be staggered in different quarters in different years where there is not a conflict with EPA testing requirements, or the availability of test organisms.

D. 6 Substituting fresh water species for marine ones is generally not a good idea. It is better to wait for the proper species to become available.

E. Data to be used in evaluations. An accurate and complete data base is essential for proper toxicity determinations, and the Department intends to use all relevant data in its calculations. These items address data which will be used, and when individual test results will not be used.

E. 1 All test data on file during the most recent 60 months will be evaluated.

E. 2 If an exceedence predates notifications under the rule (February, 1995), it will be treated as RP, and no TRE will be required. License limits will still be included at the next renewal unless further testing or time removes the RP.

E. 3 The Department must consider all reported test results to be valid. The licensee is responsible for documenting a clear case as to why WET or priority pollutant test data are invalid and should be disregarded. Addressing data problems after the fact is far more difficult; licensees need to review and address problems at the time results are submitted to the Department. Data presented as estimates or approximations may be used provided there is acceptable QA/QC and satisfactory explanations are provided. Invalidation of data will be limited to cases where test controls failed, contaminated samples, test interference, and other appropriate situations. Erroneous or incorrect tests will not be included in the data base. Invalid tests must be repeated as soon as possible.

E. 4 LC50 tests done prior to adoption of the rule will be used only as credit for past tests, and will not be included with NOEL tests in reasonable potential calculations. Credit will not be given for LC50 tests which, using the conversion factors in the rule, suggest the effluent has RP. Acute NOELs can typically be calculated from data generated from LC50 tests.

F. Adjustments to testing requirements. As test results are received and evaluated, a treatment facility's status and requirements for testing may change. The following items describe how certain situations will change the numbers and types of tests which must be done.

F. 1 Where there is an exceedence or RP for a parameter (WET or PP), limits and increased testing frequency will be applied for only the relevant criteria (acute or chronic) with the organism or element/compound in question. However, if a chronic WET test is being done, acute results must be reported as well. If only human health criteria are involved, a chronic limit based on harmonic mean flow is sufficient.

F. 2 If there is an exceedence or RP with a WET test species, all other WET species testing will be continued at the regular surveillance or screening level as required by the rule, and will not be subject to reduced testing allowances unless the exceedence or RP has been fully addressed or removed from the record.

F. 3 Conducting a TRE does not remove the obligation to continue screening or surveillance testing not associated with the exceedence. Testing required to be done at an increased frequency will be added to the database for the facility. The TRE should list the specific parameters to be studied. Information resulting from a TRE will not normally be used as the basis for compliance actions, provided the TRE continues on its approved schedule and addresses the effluent toxicity.

F. 4 If there is RP at the end of a screening year, testing must be continued for the parameter(s) involved at the screening frequency until license renewal or the RP is removed by an additional number of tests. If RP is found during surveillance testing, screening frequency does not need to be started until one year prior to license expiration. However, facilities are strongly encouraged to begin more frequent testing in response to any RP determination in order to decrease the likelihood that license limits will be needed when the license is renewed.

F. 5 Credit for tests over and above the minimum requirements will be evaluated on a case-by-case basis . Facilities will still have to do the surveillance testing of once per year. Testing done as part of a TRE or other follow-up to an exceedence cannot be counted as "credit".

F. 6 For seasonal discharges at medium and high test frequency facilities, screening requirements may be prorated by the number of months of discharge per year. For example, a medium frequency facility which discharges 6 months per years would have to do 1 test for screening requirements.

F. 7 Credits given at the start of the rule were for a maximum of 3 years, so beginning in 1998 any credits no longer apply.

F. 8 Tests owed for 96-97 should be completed in 98. All screening requirements must be met by the end of 1998, unless the start of testing was deferred. See the fact sheets for individual facilities.

F.9 Reduced surveillance testing for POTW's

AMOUNT OF TESTING REQUIRED. An equivalent of 5 years of testing meeting the requirements of 530.5 must have been completed. That is, a total number of tests equaling 1 screening year (1-4 tests) and 4 surveillance years (4 tests) must have been done within the past 5 years. Tests more than 5 years old may not be credited. LC50 tests may be used if they received credit on the fact sheets prepared in early 1995, provided they are still within the most recent 5 years. Reductions in testing may not be granted for facilities which are required by EPA to adopt pretreatment programs or which receive more than 10% of their average daily flow from sources for which pretreatment standards have been promulgated by EPA. In order to be eligible for reduced surveillance testing, the facility must demonstrate that conditions specified in 530.5(B)(7)(c) are unchanged.

EVALUATION OF TESTS. The Department will use the following as a general guide in establishing a reduced surveillance testing regime. The surveillance testing will not be reduced for any parameter which has recorded an exceedence or a reasonable potential. In no case will a testing regime be reduce below one round of screening (1 to 4 tests) per 5 years. When reliable background data become available, the facility's record will be reevaluated and testing restarted at appropriate levels if necessary.

· Facilities with all dilution factors equal to or greater than 20:1 and no reasonable potential over a full five year cycle may receive a reduction to one round of screening testing for the complete suite of chemical specific priority pollutants and acute and chronic WET tests for all required species (all screening testing must be completed in the screening year).

· Facilities with any dilution factor less than 20:1 and no reasonable potential over a full five year testing cycle may have surveillance testing reduced to once per year testing for only acute and chronic WET species and associated chemical testing as specified by EPA's test method referred to in the discharge license. Other priority pollutant testing need only be done as part of screening year requirements.

· Facilities which have recorded reasonable potential may receive reduced testing for parameters not related to the reasonable potential. These situations will be evaluated on a case-by-case basis, giving consideration to the individual conditions and circumstances for each facility. These considerations include, but are not limited to: the total number of tests done, the variability in test data, how close individual results are to the critical level for the facility, the presence of known or suspected sources of specific pollutants, the relationship between individual pollutants or groups of pollutants, indicator parameters which may suggest the presence or absence of other pollutants and the sensitivity of WET organisms in a particular situation. For example, high concentration of a metal is often not related to organic chemicals. However, reasonable potential with copper will normally indicate a need for continued lead and zinc testing.

PROCESS. Reductions in required testing will be considered upon relicensing of a facility or at any other time upon the request of the facility. If included in a license renewal, the basis for reduced testing will be included in the findings for the license renewal. Requests for reductions made by facilities at other times will be considered as administrative modifications to the current license pursuant to the toxicity testing reopener clause in the license. In addition to making a written request for administrative modification, licensees must publish in a local newspaper a public notice describing the requested reduction in testing. Action on requests for administrative modification for toxicity testing will be documented in writing to the facility, explaining the basis for the action taken.

REPORTING. Annually, each facility granted a toxicity testing reduction must submit to the Department a written statement evaluating its current status for each of the four conditions listed at 530.5 (B) (7) (c) (iii).

G. Effluent Standards and criteria. Water quality standards are generally established by EPA. However, some are calculated using certain assumptions which can be modified from default values. Additionally, test procedures or interpretations may be adapted to reflect these variables.

G. 1 Several factors affect ammonia toxicity. Seasonal variations can be considered for ammonia in setting a license limit. We will explore changing our data base system to use different ambient temperatures in different seasons or quarters. Also, the difference between actual ambient temperatures and the temperature of a WET test in the lab is an issue. EPA has a draft procedure to address the effect of temperature differences in WET tests (ammonia artifact toxicity). Finally, the effect of pH and salinity on ammonia toxicity can be considered. The licensee should submit at least 12 monthly monitoring results taken over the course of the year to support consideration of an alternate ambient value. DEP should review sampling proposals in advance.

G.2 Hardness of the receiving water affects the toxicity of several metals in fresh water. The Department's default value is 20 mg/L. The licensee should submit at least 12 monthly monitoring results taken over the course of the year to support consideration of an alternate ambient value. DEP should review sampling proposals in advance.

H. Methods used to evaluate data. The following items pertain to how test results will be evaluated to determine compliance with applicable water quality criteria. They include how water quality criteria are applied, and how test results are calculated and compared to applicable criteria.

H. 1 Exceedence evaluations for priority pollutants will be done using the quantities (mass) discharged. Calculations will be based on the facility's flow on the day the sample was collected for acute criteria and the monthly average flow for the chronic and human health criteria. Allowable water quality criteria will be stated in pounds based on the facility’s licensed flow and the appropriate stream design flow (1Q10, 7Q10 or harmonic mean). In situations where a treatment facility's flow augments the stream flow (as is the case with most POTW's), DEP's calculation of allowable mass limits will reflect the differences in dilution factors resulting from actual flows being below the facility's full license amount. RP calculations will continue to use concentration and the facility's license flow.

H. 2 A "less than" or non-detect value (below the Department's reporting limits) will be treated as the compound not being present for the purposes of priority pollutant evaluations. Only "real" detectable values will be used in calculations. Non-detect tests will still be counted in the total number of tests done.

H. 3 Values reported at the DEP reporting limit (appropriate for the method used) should be treated as "real" numbers. Values below the reporting limit are not reproducible. Labs should document any issues or questions with values at the reporting limit.

H. 4 Isolated or single tests which are above the allowable mass limit for a facility are valid and require action, including license limits where there is an exceedence. The response in terms of the depth of the TRE effort and/or future testing requirements is variable and depends on the individual circumstances. Questionable data should be addressed to the facility promptly to verify their validity and initiate retesting if necessary. (See TRE guidance)

H. 5 For calculation of human health criteria in marine waters, only the "organisms only" criteria will be used.

H. 6 For marine or estuary discharges, a dilution factor of three times the chronic dilution factor will be used for evaluation of human health criteria. This value is derived from what is typically seen as the ratio of harmonic mean to 7Q10 in fresh waters and is being applied to marine discharges to provide parity.

H. 7 If a test result is reported at a "real" concentration below DEP's published reporting limit (appropriate for the method used), that value will be treated as a non-detect for evaluation of exceedence or RP. The test information will still be included in facility’s data base and used in the total count of tests done.

H. 8 Where a facility is committed to major changes or upgrades, evaluations should be done using information or assumptions which best reflect the effect of those changes. For example, if an outfall will be moved, the evaluation is to be done using the new dilution factor.