Legislature(1995 - 1996)
03/27/1996 08:31 AM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 342 - WATER QUALITY STANDARDS CO-CHAIRMAN GREEN announced the committee hear testimony on HB 342 from the Department of Environmental Conservation and then hear testimony from Resource Development Council in Anchorage. He said the committee would not have the time to pass the bill today. Number 1160 SUSAN BRALEY, Chief, Water Quality Technical Services, Department of Environmental Conservation, said, "Among other things, our section is responsible for managing and administering the Alaska Water Quality Standards which are regulations designed to protect the water qualities of the state of Alaska." "I am here today to testify on behalf of the department on CS HB 342, an Act relating to water quality. I did testify during the initial hearing on this bill about concerns the department has with the proposed legislation. MS. BRALEY proceeded, "The department continues to have concerns with this committee substitute bill because the changes it proposes are difficult to interpret and, as written, will allow already polluted waters to be further polluted. Further, the new section proposed in AS 46.03.08 5(C) which is at the very end of the bill requiring the department to promptly adopt water quality standards consistent with federal water quality standards every time they change will force the state to, blindly, adopt national standards with no consideration or evaluation of their practical or scientific application to Alaskan waters. MS. BRALEY stated, "Overall, the language in the bill appears to incorrectly use the terms for water quality criteria, water quality standards and effluent discharge limits. This leads to difficulty in interpreting the legislation and how it relates to the existing water quality standards for Alaska. MS. BRALEY continued, "As stated earlier, the bill does not recognize that some waters are already polluted. New sections (1) and (2) of this bill, which are at the very beginning of the bill, would limit the ability to clean waters back up to their original condition since the language suggests that an effluent limit may not be more strict than the quality of the existing water received for the use. Thus, a discharger would only have to clean up their discharge to meet the existing polluted condition of the specific water body. MS. BRALEY emphasized, "It would be useful to understand the intent of this language and why the legislature finds it necessary to make statutory changes. It appears to be trying to get at the natural background condition of a water which can sometimes naturally exceed water quality standards. As a point of clarification, the department would like to refer to several places in our water quality standard regulations where the natural background of a water is considered in setting a criteria limit. Number 1287 MS. BRALEY referred to Alaska Water Quality Standards, 18 AAC 70, dated January 4, 1995, page 7, "look at pH and you will see that pH may not be less that 6.0 or greater than 8.5 and may not vary more than 0.5 Ph units from natural conditions." "The next column on `Turbidity' you will see that they base the maximum exceedences on above natural conditions. So, they do consider the natural condition of the water body." Number 1310 MS. BRALEY referenced page 9 of the handbook, directing members to the column "Sediment," "no measurable increase in concentration of settleable solids above natural conditions." She further referenced ADEC regulations on page 27, subsection (b) which basically says that if the department finds that a natural condition of a water body has been demonstrated to be of lower quality, the and if the department sees that the uses are fully protected, the department can go in and set a site specific criteria for that particular water. "Just a real life example, we are currently using this for the permitting of the Alaska-Juneau Mine at Gold Creek where the total dissolved solids fraction is naturally, or, at least, it has been higher in the last 50 years since historic mining occurred. The `critters' have learned to live in that water and, probably, to reduce it would cause more harm than good. So, we are doing a site specific criteria for that particular creek based on the natural condition. This also applies to the permitting of Cominco at Red Dog Creek, we are doing basically the same thing. Number 1390 MS. BRALEY said, "The department also has difficulty understanding why the new section in AS 46.03.085 (a) is considered necessary. This is at the bottom of the first page of the bill. As a point of clarification, again, if you turn back to page 9 where we have the sediment criteria listed, the department would like to note that water quality standard revisions which were approved in January 1995 already clarified that the measurement for sediment is settleable solids using the volumetric Imhoff cone method. We believe this regulation satisfies the intent of this new statutory section, although, again, I am not real clear on the intent and it would probably help to understand what this is trying to give. We made that clarification specifically because there was some confusion about the definition of sediment and whether it included suspended solids and settleable. So, that was a specific change we made to the regulation to address. Number 1454 MS. BRALEY said, "Subsection (b) is also difficult to interpret, it appears to say that the department can not apply an effluent limit that is more restrictive than federal water quality standards. The language also suggests that effluent limit cannot be more strict than the quality of the intake water. Although, again, because of the language it could be interpreted to mean the upstream or receiving water. MS. BRALEY said, "As mentioned earlier, the last subsection (c) regarding the proposed requirement for the Department of Environmental Conservation to promptly adopt any change in federal water quality standards is `problematic and alarming' from the DEC's perspective. One must remember that these federal standards are set at the national level and do not take into consideration state or region specific conditions. So, before adopting, the state must carefully review the new federal standards and research and evaluate their applicability to Alaskan waters before taking any action to adopt them. Number 1512 MS. BRALEY continued, "As a case in point, I would like to use the arsenic criteria as an example. In 1993, EPA adopted federal standards for toxic criteria in, what they call, the National Toxic Rule, they impose these numbers on Alaska as well as several other states that EPA felt did not have toxic criteria developed in their state standards. At that time, Alaska argued strongly against the imposition and, especially, the arsenic criteria which Alaska felt was unrealistically stringent and not scientifically defensible. To give prospective, the state adopted level for arsenic is the drinking water standard of 50 parts per billion. The federal standard carried in the National Toxic Rule is set at 0.18 parts per billion. Just to give you an idea of how different it is from what we now have. MS. BRALEY stated, "Recent information from EPA confirms that Alaska's concerns were well founded, and they have admitted that the 0.18 parts per billion arsenic standard is not scientifically defensible. Unfortunately, EPA has not gotten around to administratively removing it from the books, so the federal standard remains at 0.18 ppb. The DEC is fighting this issue with the EPA at this point where several NPDES permits are being reviewed in Alaska. EPA permitters continue to apply the federal number for determining what conditions the dischargers must meet. MS. BRALEY continued, "One of our strongest arguments is that our adopted criteria remain at 50 parts per billion. Therefore, the EPA should offer the state some flexibility in what it has adopted. Had we blindly adopted 0.18 parts per billion, you can be assured that EPA would be sitting back at this time asking the state how we plan to justify and defend our newly adopted number. In closing, we ask that you carefully review this bill in front of you to determine if it truly meets the intent it was designed for. The water quality standards are admittedly complex and the department can offer staff assistance in determining how we can help correct specific situations without making broad statutory changes which may instead have unattended negative affects. Number 1641 REPRESENTATIVE DAVIES asked Ms. Braley to characterize how many instances where the state has adopted the standard in regulations that is higher than the federal standard, and more stringent than. MS. BRALEY responded that there are actually very few, but the one that comes to mind that has caused some heartburn for the oil and gas industry is the petroleum hydrocarbon criteria. MS. BRALEY's staff spoke up from the audience saying, "we have a total petroleum hydrocarbon standard that is like 10 parts per billion and one that is 15 parts per billion. The federal government has developed a few polynuclear aromatic hydrocarbon standards that are chemical specific. Our total is low and it has been real low for about 10 years, and the unfortunate thing is.." CO-CHAIRMAN GREEN asked the staff member to come forward. Number 1734 KATY McKERNEY, Water Quality Standard Specialist, Department of Environmental Conservation said, "As far as hydrocarbons, we have a very low total hydrocarbon standard, it is considered very low, it is 10 parts per billion and it is a total standard so that means everything and there is a total aqueous which is 15. The federal government has developed some chemical specific criteria for polynuclear aromatic hydrocarbons that are much higher. That reason that number is low is because when we were developing it for the state, there were some studies done on the North Slope and they looked at the most sensitive stages. MS. McKERNEY closed by stating that the question really comes down to the application and that is where we may have some issues to address with industry and others. CO-CHAIRMAN GREEN announced that the committee would recess until Friday, March 29th. He asked that Ms. Braley return at that time. He also asked committee members to hold their questions until the committee was reconvened since there were still people on the teleconference network waiting to testify. Number 1842 BECKY GAY, Executive Director, Resource Development Council for Alaska testified on HB 342 reading her statement into the record: "RDC supports the goal of the CS for HB 342 to strengthen the mandate for economically-feasible and technologically-achievable state water quality standards which are scientifically-based and consistent with federal standards. MS. GAY stated, "RDC also supports the CS specifying EPA-approved measurements which are in line with the state Department of Environmental Conservation's (DEC) current policy on settleable solids measurements, and which in fact, strengthen that policy. Additional, RDC supports legislation which provides for the following: An efficient `change mechanism' for changing state regulations to match federal regulations; A professional and definitive process, including an independent panel review, for evaluating any conclusion which results in state standards being set stricter than federal requirements; An allowance for discharge waters to match the quality of the receiving waters. This will strengthen when natural levels exceed the state standard, as is often the case in Alaska, particularly with arsenic. MS. GAY continued, "Presently states are required to amend regulation to match federal regulations only when federal regulations become more restrictive. This is a one-way street. The state needs to legislate a similar requirement to automatically adjust state standards when federal changes result in less strict standards, or when federal mandates are deleted from law. Such a provision still allows the state to set stricter standards if it chooses, but will encourage a pro-active response automatically and a review of that decision. MS. GAY informed, "For those few cases where the state argues for a stricter standard than federally required, this legislation should establish an impartial review methodology for evaluating the merit of such an argument. Such a review should also allow for an appeal from the regulated community or industries involved. MS. GAY testified, "One change RDC recommends is replacing Section 1 (b) and Section 2 (c) with language which would read, "The Commissioner may not require a more restrictive water quality for discharge water than the existing quality of the receiving water." This should help the DEC's concern that polluted or impaired waterbodies might become more degraded under the current language." MS. GAY said the RDC believes that the background level, if they do exceed the water quality, then the background level should become the standard. MS. GAY referred to the last section of the bill stating she felt it important, in state regulations, to find an efficient way to change water quality standards or criteria if the federal ones go down which is not very easy to do now. That is what we were trying to shoot for in that section. MS. GAY stated that Brian Crewdson, arsenic expert, was standing by if the committee had more questions. BRIAN CREWDSON responded to Chairman Green that he had nothing to add but was available for questions. CO-CHAIRMAN GREEN confirmed with Ms. Gay and Mr. Crewdson that they would be available for the continuation meeting on Friday 29th. MS. GAY stated that she would not be available. MR. CREWDSON said he would be available. Number 2090 CO-CHAIRMAN GREEN announced that the House Resources Committee meeting would recess until 8:00 a.m. Friday, March 27, 1996.
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