HB 128: "An Act relating to water quality; directing the Department of Environmental Conservation to conduct water quality research; establishing the Water Science Oversight Board; and providing for an effective date."

00HOUSE BILL NO. 128 01 "An Act relating to water quality; directing the Department of Environmental 02 Conservation to conduct water quality research; establishing the Water Science 03 Oversight Board; and providing for an effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. FINDINGS AND INTENT. It is the legislature's intent that the policy of 06 the state be to protect the quality and uses of the state's water. The legislature finds that the 07 state's water resources have unique characteristics but that, in attempting to develop water 08 quality regulations, the Department of Environmental Conservation has often had to act 09 without specific data about the state's water. It is the legislature's view that one of the results 10 of this lack of data has been the growth of increasingly complex and conservative regulations. 11 In order to reconcile the sometimes conflicting demands of protecting water quality and 12 encouraging the economic use of the state's water, the legislature finds that it is important that 13 there be adequate data gathering, water quality testing, and other research that will enable the 14 department to establish valid standards and a workable system of water quality regulations

01 appropriate for this state. It is the intent of this Act to direct the department to conduct the 02 necessary research and adopt new regulations based on that research. 03 * Sec. 2. AS 46.03 is amended by adding new sections to read: 04  Sec. 46.03.082. Research plan relating to water quality. (a) The 05 department shall work cooperatively with interested parties affected by its water quality 06 regulations to seek funds to perform research in order to determine appropriate water 07 quality standards for the state. Based on the availability of funding, the department 08 shall prepare research plans which may include research on 09  (1) appropriate aquatic life criteria for acute and chronic toxicity under 10 conditions in this state and on species found in this state; 11  (2) toxicity testing procedures, including procedures for testing toxicity 12 of whole effluent, that are ecologically relevant to conditions and species found in this 13 state; and 14  (3) the relative costs and benefits of toxicity testing required or 15 proposed to be required under the state's water quality standards or proposed 16 standards. 17  (b) The department shall submit the plans developed under (a) of this section 18 to the Water Science Oversight Board for its consideration and recommendations. 19  (c) After receiving the board's recommendations under (b) of this section, the 20 department shall consider modifying the plans and then, subject to the availability of 21 funds for the purposes of this section, carry out the activities described in the plans. 22 The department may contract with the University of Alaska and other appropriate 23 entities and individuals to perform activities under the plans. 24  Sec. 46.03.083. Water quality standards; interim standards. (a) The 25 department shall submit the results of the research carried out under AS 46.03.082 to 26 the Water Science Oversight Board. After receiving the board's recommendations 27 under AS 46.03.085(c) and considering them, the department shall propose water 28 quality regulations and, after appropriate public process and revisions, as necessary, 29 adopt the regulations. The regulations proposed and adopted under this subsection 30 shall be part of one process so that they all have the same effective date. 31  (b) Until the effective date of the regulations that are adopted under (a) of this

01 section, the water quality regulations of the department must include 02  (1) provisions for allowing mixing zones as prescribed under (c) of this 03 section; 04  (2) a level of allowable arsenic that is set at 50 micrograms per liter 05 of water for the protection of human health; 06  (3) limits for total dissolved solids for freshwater aquaculture that are 07 no more restrictive of increases above background levels than as described in the chart 08 on page 258 of the 1986 edition of "Quality Criteria for Water," issued by the United 09 States Environmental Protection Agency; 10  (4) provisions that require the department, when establishing site 11 specific criteria based on natural conditions, to base those criteria on the natural 12 conditions at the point of discharge; in determining the natural conditions at the point 13 of discharge, the department shall consider the testimony of local residents, the best 14 professional judgment of scientific experts, and other subjective evidence that may be 15 available to supplement the quantitative data considered; the department shall consider 16 uses to be fully protected by site specific criteria based on natural conditions if the site 17 specific criteria protect those uses to the same extent as the uses would be protected 18 by the natural conditions; 19  (5) procedures for reclassification of state water that implement the 20 requirements of (d) of this section; and 21  (6) a limitation specifying that whole effluent toxicity testing is 22 required only to the extent that the testing will support the research being carried out 23 under AS 46.03.082; whole effluent toxicity testing may not be used by the department 24 for the purpose of determining the compliance of a discharger with applicable permits, 25 regulations, or laws. 26  (c) Provisions for mixing zones under regulations adopted under (b) of this 27 section 28  (1) must allow a mixing zone, within which the applicable water quality 29 standards may be exceeded, unless available evidence reasonably demonstrates that the 30 pollutants discharged would 31  (A) bioaccumulate, bioconcentrate, or persist in the

01 environment; cause carcinogenic, mutagenic, or teratogenic effects on human 02 health; or otherwise present a significant human health hazard; 03  (B) have a toxic effect in the water column, sediments, or biota 04 outside the boundaries of the mixing zone; 05  (C) have an adverse effect on anadromous fish spawning or 06 rearing or form a barrier to migratory species; or 07  (D) have an environmental effect so adverse that a mixing zone 08 is not appropriate; 09  (2) must require a mixing zone to be as small as practicable and consist 10 of two volumes, one that is immediately surrounding the initial discharge entry point 11 and one that is outside that initial volume; at and beyond the boundaries of the smaller 12 of the two volumes, acute aquatic life criteria shall apply; the size of the volume in 13 which acute criteria apply must be set so as to prevent lethality to passing organisms; 14 unless otherwise specified by the department, the method for calculating the boundaries 15 of the volume in which acute criteria apply must follow procedures under alternatives 16 2 or 3 in section 5.1.2 of the United States Environmental Protection Agency's Water 17 Quality Standards Handbook, second edition, September 1993; at and beyond the outer 18 limits of the mixing zone, human health and chronic aquatic life criteria shall apply; 19  (3) may be authorized by the department only if available evidence 20 reasonably demonstrates that an effluent or substance that will exceed the water quality 21 criteria set in regulations will be treated to remove, reduce, and disperse pollutants that 22 contribute to the exceedance by using the most effective practicable methods 23 considered by the department to be consistent with statutory and regulatory treatment 24 requirements; in this paragraph, "available evidence," "practicable," and "reasonably 25 demonstrates" have the meanings given in AS 46.03.084. 26  (d) Reclassification of state water under regulations adopted under (b) of this 27 section must implement the following requirements: 28  (1) if a defined use class includes more than one listed use and not all 29 listed uses are present within a specific body of water, the department shall, upon 30 application, develop for the specific body of water a subclass of the defined use class 31 that lists only the uses present in the body of water, and regulatory limits based on

01 uses not present in the specific body of water or included in the subclass may not be 02 applied within the subclass; 03  (2) a classification defined for use for growth and propagation of fish, 04 shellfish, and other aquatic life and wildlife may be applied only to water that supports 05 biological communities that are balanced, integrated, adaptive communities of 06 organisms having species and class composition, diversity, and functional organization 07 comparable to that of natural habitat of the region; 08  (3) the department shall develop a use classification for naturally 09 impaired aquatic systems where the growth and propagation of fish, shellfish, and other 10 aquatic life and wildlife exists but is naturally impaired; for this use classification, the 11 department shall use natural background conditions instead of aquatic life criteria. 12  Sec. 46.03.084. Definitions. In regulations of the department that relate to 13 water pollution, water quality, and similar matters, 14  (1) "available evidence" means data or information that an applicant has 15 or can obtain that is useful, relevant, and applicable to the applicant's application and 16 relevant and applicable data and information that is readily available to the department 17 from other sources but not data and information the collection or preparation of which 18 is not practicable; 19  (2) "practicable" means available and capable of being done after taking 20 into consideration cost, existing technology, and logistics in light of overall project 21 purposes; 22  (3) "reasonably demonstrates," with respect to evidence that an event 23 will take place or that a condition will be met, means that the evidence demonstrates 24 to the satisfaction of the department, which shall evaluate the evidence and exercise 25 the discretion afforded by law, that there is reasonable assurance that the event will 26 take place or that the condition will be met. 27  Sec. 46.03.085. Water Science Oversight Board. (a) There is established 28 in the department the Water Science Oversight Board. It is composed of the 29 commissioner or the commissioner's designee and four additional members, each of 30 whom has academic credentials and Alaska-based expertise in the field of water quality 31 that are sufficient to enable oversight of the research performed under the plans

01 prepared under AS 46.03.082. One member shall be appointed by the chancellor of 02 the University of Alaska. Three members shall be appointed by the governor; one of 03 these three members shall be chosen from a list of three candidates proposed by the 04 president of the senate and one from a list of three candidates proposed by the speaker 05 of the house. 06  (b) A member of the board who is not a public employee is entitled to 07 compensation at a rate of $400 for each day the member is engaged in the actual 08 performance of duties as a member of the board. The board may provide by rule for 09 compensation for partial days during which a member who is not a public employee 10 is engaged in actual performance of duties as a member of the board. A member of 11 the board who is not a public employee is also entitled to per diem and travel expenses 12 authorized for state boards and commissions under AS 39.20.180. 13  (c) The board shall 14  (1) review and comment on the plans prepared by the department under 15 AS 46.03.082; 16  (2) meet at least once every three months to review the work of the 17 department and its contractors that is carried out under the plans and to provide advice 18 to the department and its contractors concerning that work; 19  (3) report annually to the governor and to the house and senate 20 resources committees concerning the department's progress under the plans and making 21 recommendations for actions considered by the board to be necessary to improve or 22 facilitate the department's progress under the plans or to modify the plans; 23  (4) after reviewing the research results submitted to it under 24 AS 46.03.083(a), submit to the department the board's recommendations for changes 25 to the department's water quality standards or regulations; 26  (5) review the regulations proposed by the department under 27 AS 46.03.083(a); 28  (6) make a final report to the governor and to the house and senate 29 resources committees when the board has completed its review of the department's 30 research results and proposed regulations; and 31  (7) from time to time, as considered necessary by the board, advise the

01 department and the legislature concerning appropriate water quality standards and 02 regulations for the state. 03  (d) In this section, 04  (1) "board" means the Water Science Oversight Board established under 05 this section; 06  (2) "plans" means the plans prepared by the department under 07 AS 46.03.082. 08 * Sec. 3. TIMELINES FOR ACTIONS. (a) The department shall submit to the Water 09 Science Oversight Board at least one of the plans required by AS 46.03.082(a), enacted by 10 sec. 2 of this Act, by October 1, 1997. 11 (b) The department shall adopt regulations to implement AS 46.03.083(b), enacted by 12 sec. 2 of this Act, by December 31, 1997. 13 (c) The department shall submit its research results to the Water Science Oversight 14 Board, as required by AS 46.03.083(a), enacted by sec. 2 of this Act, by June 30, 2002. 15 * Sec. 4. AS 46.03.082, 46.03.083, and 46.03.085, enacted by sec. 2 of this Act, are 16 repealed on the effective date of the regulations adopted to implement AS 46.03.083(a). The 17 commissioner of environmental conservation shall notify the revisor of statutes of the effective 18 date of the regulations. 19 * Sec. 5. This Act takes effect July 1, 1997.