Bill Summary – FastDemocracy

HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #:     HB 1309 Ratification of Department of Environmental Protection Rules
SPONSOR(S): Payne
TIED BILLS:       IDEN./SIM. BILLS:    SB 7060
  REFERENCE                                                        ACTION                   ANALYST                STAFF DIRECTOR or
                                                                                                                   BUDGET/POLICY CHIEF
  1) Environment, Agriculture & Flooding                           17 Y, 0 N                Melkun                 Moore
     Subcommittee
  2) State Affairs Committee                                       22 Y, 0 N                Melkun                 Williamson
                                                         SUMMARY ANALYSIS
When domestic wastewater is treated, a solid byproduct accumulates in the wastewater treatment plant and
must be removed periodically to keep the plant operating properly. The collected material, called biosolids or
“sewage sludge,” is high in organic content and contains moderate amounts of nutrients. Wastewater facilities
can dispose of biosolids by transferring them to another facility, placing them in a landfill, incinerating them,
distributing them as fertilizer, or land applying them to permitted sites. The option selected for use or disposal
is typically stated in the permit issued to the wastewater treatment facility by the Department of Environmental
Protection (DEP). Florida produces a total of 340,000 dry tons of biosolids annually, of which approximately
two-thirds are beneficially used and one-third is landfilled.
The Environmental Regulation Commission (ERC) is a board created within DEP that sets standards and rules
based on sound scientific and technical validity, economic impacts, and risks and benefits to the public and
Florida’s natural resources.
A statement of estimated regulatory costs (SERC) must be prepared if a proposed rule will have an adverse
impact on small business or is likely to directly or indirectly increase regulatory costs in excess of $200,000
aggregated within one year after implementation. If the SERC shows that the adverse impact or regulatory cost
of the proposed rule exceeds $1 million in the aggregate within five years after implementation, then the
proposed rule must be submitted to the Legislature for ratification.
On December 3, 2020, DEP published a notice of proposed rule for new biosolids rules. Due to the estimated
regulatory costs of the rules, DEP was required to prepare a SERC, which indicated that the proposed rules
will exceed $1 million aggregated within five years after implementation. Accordingly, the proposed rules were
submitted to the Legislature for ratification on January 29, 2021.
The bill ratifies DEP’s proposed biosolids rules, which are proposed rules 62-640.100, 62-640.200, 62-
640.210, 62-640.300, 62-20 640.400, 62-640.500, 62-640.600, 62-640.650, 62-640.700, 62-21 640.800, 62-
640.850, and 62-640.880, F.A.C. The bill states it serves no other purpose and will not be codified in the
Florida Statutes. The bill specifies that after becoming law, its enactment and effective dates will be noted in
the Florida Administrative Code, the Florida Administrative Register, or both, as appropriate.
The bill exempts the biosolids rules from review and approval by the ERC.
The proposed rule being ratified by the bill will have a negative fiscal impact on local governments and the
private sector who provide wastewater and biosolids treatment as well as locally and privately owned utilities.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 3/24/2021
                                                        FULL ANALYSIS
                                                 I. SUBSTANTIVE ANALYSIS
    A. EFFECT OF PROPOSED CHANGES:
         Background
         Agency Rulemaking
         A rule is an agency statement of general applicability that implements, interprets, or prescribes law or
         policy or describes the procedure or practice requirements of an agency.1 The Legislature grants an
         agency rulemaking authority through statute and authorizes an agency to adopt, develop, establish, or
         otherwise create a rule.2 To adopt a rule, an agency must have a general grant of authority to
         implement a specific law through rulemaking.3 The specific statute being interpreted or implemented
         through rulemaking must provide specific standards and guidelines to preclude the administrative
         agency from exercising unbridled discretion in creating policy or applying the law.4
         The formal rulemaking process begins by an agency giving notice of the proposed rule.5 The notice is
         published by the Department of State in the Florida Administrative Register6 and must include an
         explanation of the purpose and effect of the rule, the specific legal authority for the rule, the full text of
         the rule, a summary of the agency’s statement of estimated regulatory cost (SERC), if one is prepared,
         whether legislative ratification is required, and how a party may request a public hearing on the
         proposed rule.7
         The SERC must include an economic analysis projecting a proposed rule’s adverse effect on specified
         aspects of the state’s economy or increase in regulatory costs.8 If the proposed rule will have an
         adverse impact on small business9 or is likely to increase directly or indirectly regulatory costs in
         excess of $200,000 aggregated within one year after implementation, an agency must prepare a
         SERC.10 If the SERC shows that the adverse impact or regulatory costs of the proposed rule exceeds
         $1 million in the aggregate within five years after implementation, then the proposed rule must be
         submitted to the Legislature for ratification and may not take effect until it is ratified by the Legislature.11
         Biosolids
         When domestic wastewater is treated, a solid byproduct accumulates in the wastewater treatment plant
         and must be removed periodically to keep the plant operating properly. The collected material, called
         biosolids or “sewage sludge,” is high in organic content and contains moderate amounts of nutrients.12
         Wastewater facilities can dispose of biosolids by transferring them to another facility, placing them in a
1
  Section 120.52(16), F.S.
2
  Sections 120.52(17) and 120.536(1), F.S.
3
  Section 120.536(1), F.S.
4
  Sloban v. Florida Board of Pharmacy, 982 So. 2d 26, 29-30 (Fla. 1st DCA 2008); Board of Trustees of the Internal Improvement
Trust Fund v. Day Cruise Association, Inc., 794 So. 2d 696, 704 (Fla. 1st DCA 2001).
5
  Section 120.54(3)(a), F.S.
6
  Section 120.55, F.S.
7
  Section 120.54(3)(a), F.S.
8
  Section 120.541(2), F.S.
9
  Section 288.703(6), F.S., defines “small business” to mean an independently owned and operated business that employs 200 or fewer
permanent full-time employees and that, together with its affiliates, has a net worth of not more than $5 million or any firm based in
this state that has a Small Business Administration 8(a) certification. As applicable to sole proprietorships, the $5 million net worth
requirement includes both personal and business investments.
10
   Sections 120.54(3)(b) and 120.541(1)(b), F.S.
11
   Sections 120.541(2)(a) and (3), F.S.
12
   DEP, Domestic Wastewater Biosolids, available at https://floridadep.gov/water/domestic-wastewater/content/domestic-wastewater-
biosolids (last visited Mar. 9, 2021); r. 62-640.200(6), F.A.C., defines the term “biosolids” to mean the solid, semisolid, or liquid
residue generated during the treatment of domestic wastewater in a domestic wastewater treatment facility, formerly known as
“domestic wastewater residuals” or “residuals.” The treated effluent or reclaimed water from a domestic wastewater treatment plant is
not included. Also, solids removed from pump stations and lift stations, screenings and grit removed from the preliminary treatment
components of domestic wastewater treatment facilities, other solids as defined in subsection 62-640.200(31), F.A.C., and ash
generated during the incineration of biosolids are not included.
STORAGE NAME: h1309c.SAC                                                                                                       PAGE: 2
DATE: 3/24/2021
         landfill, incinerating them, distributing them as fertilizer, or land applying them to permitted sites.13 The
         option selected for use or disposal is typically stated in the permit issued to the wastewater treatment
         facility by the Department of Environmental Protection (DEP).14 Florida produces a total of 340,000 dry
         tons of biosolids annually, of which approximately two-thirds are beneficially used and one-third is
         landfilled.15
         Three classes of biosolids are regulated for beneficial use and are categorized based on treatment and
         quality: Class B, Class A, and Class AA.16 Treatment is required to either reduce or completely
         eliminate pathogens. Class B treatment significantly reduces pathogens, but does not completely
         eliminate them. Class AA treatment essentially eliminates pathogens and meets strict concentration
         limits for heavy metals. The Class A treatment level is between Class B and Class AA. While Class A
         and Class AA can be used for a variety of beneficial purposes, Class B, the lowest quality of biosolids,
         is typically only used for land application.17
         Land application is the use of biosolids at a permitted site, such as agricultural land or a golf course,
         forest, park, or reclamation site, to provide nutrients or organic matter to the soil. The biosolids are
         applied in accordance with restrictions based on crop nutrient needs, phosphorus limits in the area, and
         soil fertility.18 Biosolids contain macronutrients (such as nitrogen and phosphorus) and micronutrients
         (such as copper, iron, and manganese) that are utilized by crops. The application of these nutrient-rich
         biosolids increases the organic content of the soil, fostering more productive plant growth.19 To prevent
         odor or the contamination of soils, crops, and livestock, land application sites must meet site
         management requirements such as the construction of site slopes and establishment of setback
         distances.20 There are approximately 140 permitted land application sites in Florida.21
         Class AA biosolids can be land applied or can be distributed and marketed as a commercial fertilizer.22
         Class AA biosolids products are also not subject to site management requirements if distributed and
         marketed as a fertilizer or distributed and marketed to a person or entity that will sell or give away the
         biosolids products as a fertilizer or component of a fertilizer.23 There are approximately 39 facilities in
         Florida that produce Class AA biosolids.24 In 2016, 197,115 dry tons of Class AA biosolids product was
         distributed and marketed in Florida.25
         The beneficial use of biosolids is regulated by DEP under ch. 62-640, F.A.C., and by the U.S.
         Environmental Protection Agency (EPA) under Title 40 Code of Federal Regulations Part 503 (Part
         503).26 Adopted in 1993, Part 503 created standards for the final use or disposal of biosolids generated
         during domestic wastewater treatment. The standards included general requirements, pollutant limits,
         management practices, and operational standards for biosolids. Standards were also included for
13
   DEP, Biosolids Use and Regulations in Florida (Sept. 2018), slide 3, available at
https://floridadep.gov/sites/default/files/Biosolids101-TAC-090518.pdf (last visited Mar. 9, 2021).
14
   Id. at slide 4.
15
   Id. at slide 5.
16
   Id. at slide 6.
17
   Id. at slide 7.
18
   DEP, Biosolids Use and Regulations in Florida (Sept. 2018), slide 23, available at
https://floridadep.gov/sites/default/files/Biosolids101-TAC-090518.pdf (last visited Mar. 9, 2021); see also, EPA, A Plain English
Guide to the EPA Part 503 Biosolids Rule (Sept. 1994), 26, available at https://www.epa.gov/sites/production/files/2018-
12/documents/plain-english-guide-part503-biosolids-rule.pdf (last visited Mar. 9, 2021).
19
   DEP, Biosolids Use and Regulations in Florida (Sept. 2018), slide 20, available at
https://floridadep.gov/sites/default/files/Biosolids101-TAC-090518.pdf (last visited Mar. 9, 2021).
20
   Id. at slides 8-9.
21
   Id. at slide 20.
22
   Id. at slide 6.
23
   DEP, Biosolids in Florida: 2013 Summary (Dec. 2014), 4, available at https://floridadep.gov/sites/default/files/BiosolidsFlorida-
2013-Summary_2.pdf (last visited Mar. 9, 2021).
24
   DEP, Biosolids Use and Regulations in Florida (Sept. 2018), slide 13, available at
https://floridadep.gov/sites/default/files/Biosolids101-TAC-090518.pdf (last visited Mar. 9, 2021).
25
   Id. at slide 19.
26
   EPA, Biosolids Laws and Regulations, available at https://www.epa.gov/biosolids/biosolids-laws-and-regulations (last visited Mar.
9, 2021).
STORAGE NAME: h1309c.SAC                                                                                                     PAGE: 3
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         biosolids applied to the land, placed on a surface disposal site, or fired in a sewage sludge
         incinerator.27
         In 1990, DEP adopted rules governing biosolids based on the draft of Part 503 and previously adopted
         solid waste rules.28 DEP’s rules were revised in 1998 to be consistent with the final version of Part 503.
         Part 503, a self-implementing program, did not address phosphorus, a major pollutant in Florida.29 As a
         result, DEP amended its rules in 2010 to improve site accountability and nutrient management by
         requiring site permits for the land application of biosolids, requiring nutrient management plans (NMPs),
         establishing phosphorus limitations, and specifying site management requirements.30 Additionally, the
         rules clarified that the disposal and incineration of biosolids must be in accordance with DEP’s solid
         waste31 and air32 rules to protect water quality and human health.
         NMPs are site-specific plans that specify the rate at which biosolids can be applied in the area, the
         method of application allowed (i.e., surface application, injection, incorporation, etc.), the zone in which
         biosolids can be applied, pollutant concentration targets, and cumulative pollutant loading limits from all
         sources at the application site.33 NMPs are submitted to DEP along with the permit application for each
         agricultural site.
         Agricultural sites that are required to have a NMP for the application of biosolids are also often required
         to participate in DACS’s agricultural BMP program if the site is located in an impaired watershed
         because of the potential impact biosolids may have on water quality.34 Typical BMP practices include
         nutrient management, irrigation and water table management, and water resource protection. Nutrient
         management practices for biosolids land application address appropriate source, rate, timing, and
         placement of nutrients to minimize impacts to water resources. Irrigation and water table management
         practices address methods for irrigating to reduce water and nutrient losses to the environment and to
         maximize the efficient use and distribution of water. Finally, water resource protection practices, such
         as the site management requirements for biosolids, help to reduce or prevent the transport of nutrients
         and sediments from production areas to water resources. The BMPs for the site are typically included
         in facility permits.35
         Biosolids Technical Advisory Committee
         In 2018, DEP created a Biosolids Technical Advisory Committee (Biosolids TAC) to evaluate current
         management practices and explore opportunities to better protect Florida’s water resources.36 The
         Biosolids TAC was composed of various stakeholders, including environmental and agricultural industry
         experts, representatives of large and small utilities, waste haulers, consultants, and academics.37 The
         meetings included presentations and public comments as well as discussions among the Biosolids TAC
         members, the audience, and DEP.
         Based on the deliberations of the Biosolids TAC and feedback from public participants, the Biosolids
         TAC recommended that DEP take the following actions:
27
   40 C.F.R. Part 503.
28
   Chapters 62-701 and 62-709, F.A.C.
29
   DEP, Biosolids Rule/Permitting (Nov. 2018), slide 2, available at https://floridadep.gov/water/domestic-wastewater/documents/tac-
3-biosolids-rulepermitting (last visited Mar. 9, 2021); see also, DEP, Biosolids Use and Regulations in Florida (Sept. 2018), slide 11,
available at https://floridadep.gov/sites/default/files/Biosolids101-TAC-090518.pdf (last visited Mar. 9, 2021).
30
   DEP, Biosolids Rule/Permitting (Nov. 2018), slide 2, available at https://floridadep.gov/water/domestic-wastewater/documents/tac-
3-biosolids-rulepermitting (last visited Mar. 9, 2021); see ch. 62-640, F.A.C.
31
   Chapter 62-701, F.A.C.
32
   See Chapters 62-204, 62-210, 62-212, 62-213, 62-296, and 62-297, F.A.C.
33
   DEP, NMPs, available at https://floridadep.gov/water/domestic-wastewater/documents/nutrient-management-plans-biosolids (last
visited Mar. 9, 2021); see also, r. 62-640.500, F.A.C.
34
   Rule 62-303.200(7), F.A.C., defines “impaired water” to mean a waterbody or waterbody segment that does not meet its applicable
water quality standards […] due in whole or in part to discharges of pollutants from point or nonpoint sources.
35
   Section 403.067(7)(c), F.S.; see ch. 2016-1, Laws of Fla.
36
   DEP, DEP Biosolids Technical Advisory Committee, available at https://floridadep.gov/water/domestic-wastewater/content/dep-
biosolids-technical-advisory-committee (last visited Mar. 9, 2021).
37
   Id.
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