HB 51: "An Act relating to the Department of Environmental Conservation."
00HOUSE BILL NO. 51 01 "An Act relating to the Department of Environmental Conservation." 02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 03 * Section 1. FINDINGS AND INTENT. The legislature confirms that it is the policy of 04 the state to implement water quality laws based on scientific and technical evidence. The 05 legislature specifically requests that state agencies possessing the necessary expertise to 06 implement AS 46.03.085 - 46.03.087, enacted by sec. 4 of this Act, coordinate their efforts 07 to enable cost efficiencies in adopting regulations that encourage the creation and retention 08 of jobs for Alaskans and the economic development of the state's natural resources consistent 09 with the public interest. 10 * Sec. 2. AS 46.03.020 is amended by adding a new subsection to read: 11 (b) The department may not adopt a regulation under (a)(10) of this section 12 unless 13 (1) compliance with the regulation is economically feasible for the 14 persons governed by the regulation; and
01 (2) the regulation is based on scientifically measurable criteria. 02 * Sec. 3. AS 46.03.050 is amended by adding a new subsection to read: 03 (b) The department shall seek and maintain federal approval under 33 U.S.C. 04 1342(b) of the state's permit program for discharges into navigable water so that the 05 department has authority to administer the national pollutant discharge elimination 06 system in the state in lieu of the federal permit program otherwise applicable to the 07 state under 33 U.S.C. 1342(a). If, at any time, the department determines that statutory 08 or budgetary changes are necessary to obtain or maintain federal approval of the state's 09 program under this subsection, the department shall notify the legislature through the 10 governor. 11 * Sec. 4. AS 46.03 is amended by adding new sections to read: 12 Sec. 46.03.085. Water quality standards. (a) In adopting and applying water 13 quality standards, the department, consistent with 33 U.S.C. 1251 - 1376 (Clean Water 14 Act), 15 (1) shall ensure that the standards are sufficient to protect human health 16 and propagation of fish and wildlife; 17 (2) shall consider the natural condition of bodies of water, including 18 the presence of naturally occurring pollutants, such as arsenic; 19 (3) shall use scientific justification and water quality criteria that can 20 be reliably measured; 21 (4) may not require water discharged by a user to be of a higher quality 22 than the natural condition of the water received by the user; in the case of water 23 discharged into an area previously given a permit as a mixing zone, the condition 24 allowed under the permit is considered the natural condition of the water received by 25 the user for purposes of this paragraph; and 26 (5) shall provide for mixing zones in state bodies of water under 27 regulation adopted by the department. 28 (b) Except when setting standards under AS 03.05.011(a) for shellfish growing 29 areas, as defined in the national shellfish sanitation program manual of operations 30 published by the Food and Drug Administration, the department may adopt a water 31 quality standard or other regulation related to water quality that is more restrictive than
01 applicable federal water quality criteria or regulations only after following the 02 procedures in AS 46.03.087(b). 03 (c) Within 90 days after receiving a written request to amend the state's water 04 quality standards to incorporate a reduction in, or elimination of, federal water quality 05 criteria, or by another date mutually agreed on by the applicant and the department, 06 the department shall either propose regulations that amend the state's water quality 07 standards to incorporate the reduction or elimination or follow the procedure required 08 under AS 46.03.087(b). If, following the procedure under AS 46.03.087(b), the 09 department is unable to make the written findings required under AS 46.03.087(b)(3), 10 the department shall propose regulations that amend the state's water quality standards 11 to incorporate the reduction in or elimination of the federal water quality criteria or 12 regulations. 13 (d) Except as otherwise provided in AS 46.03.087, the measurement of 14 constituents other than sediment to determine whether a permittee is in compliance 15 with permit limitations based on water quality shall be by methods approved in writing 16 by the United States Environmental Protection Agency or by substantially equivalent 17 methods approved by the department. 18 (e) The measurement of sediment to determine whether a permittee is in 19 compliance with permit limitations based on water quality shall be by the volumetric 20 Imhoff cone method for settleable solids. However, this subsection may not be 21 construed to limit the department's authority to adopt water quality criteria for total 22 suspended solids to meet United States Environmental Protection Agency requirements. 23 Sec. 46.03.087. Special procedures for certain water quality regulations. 24 (a) The department may, after following the procedures in this section, adopt a 25 (1) water quality standard or discharge standard that is more restrictive 26 than applicable federal water quality criteria or discharge standards; 27 (2) water quality standard or discharge standard for which there is no 28 corresponding federal water quality criteria or discharge standard; or 29 (3) regulation that allows the use of a method that is not substantially 30 equivalent to methods approved by the United States Environmental Protection Agency 31 for the measurement of constituents to determine whether a permittee is in compliance
01 with permit limitations related to water quality. 02 (b) Before adopting a standard or regulation governed by (a) of this section, 03 the department shall 04 (1) make available to the public, at convenient locations, copies of the 05 proposal and the findings of the department that describe the basis for the proposal; 06 (2) consider the economic and technological feasibility of the proposal 07 and prepare written findings; and 08 (3) find in writing, as applicable, that 09 (A) hydrologic conditions or discharge characteristics in the area 10 of the state or at the particular site where the standard or regulation applies 11 reasonably require the water quality standard, discharge standard, or method of 12 measurement to protect human health and welfare or propagation of fish and 13 wildlife; and 14 (B) hydrologic conditions or discharge characteristics are 15 significantly different in that area of the state or at that particular site from 16 those upon which the corresponding federal criteria or regulations are based. 17 * Sec. 5. TRANSITIONAL REVIEW OF REGULATIONS. (a) The Department of 18 Environmental Conservation shall, during the triennial review process of regulations that is 19 required under 33 U.S.C. 1313(c) (Clean Water Act), review its water quality regulations that 20 are in effect on the effective date of this Act in order to determine if they comply with federal 21 requirements and are not more stringent than applicable federal regulations. If the review 22 indicates that there are state regulations that are more stringent than applicable federal 23 regulations, the department shall determine whether it could justify those regulations under the 24 requirements of AS 46.03.087(b)(3), enacted by sec. 4 of this Act. If the department 25 determines that it cannot meet the requirements of AS 46.03.087(b)(3), the department shall 26 adopt the necessary revisions to the regulations. It is the legislature's intent that the 27 department complete its review of all regulations governed by this subsection and its adoption 28 of all necessary revisions required under this subsection within four years after the effective 29 date of this section. 30 (b) The Department of Environmental Conservation shall, by January 31, 1999, and 31 annually thereafter until all of the state water quality regulations in effect on the effective date
01 of this Act are reviewed, prepare a written report on the status of the department's review and 02 revisions required under (a) of this section. The department shall submit the report to the 03 governor and notify the legislature that the report is available.