CSHB 51(O&G): "An Act relating to the Department of Environmental Conservation."
00CS FOR HOUSE BILL NO. 51(O&G) 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 new subsections to read: 11 (b) The department may not adopt a regulation under (a)(10) of this section 12 unless the regulation is based on science. 13 (c) In regulations of the department, "background condition" means the 14 biological, chemical, and physical conditions of a body of water outside the area of
01 influence of the discharge under consideration. When the department performs 02 background sampling to determine a background condition during an enforcement 03 action, the department shall measure conditions that are upslope or outside the area of 04 influence of the discharge. If several discharges to a body of water exist and an 05 enforcement action is being taken, the department's background sampling shall 06 measure conditions immediately upslope from each discharge. 07 * Sec. 3. AS 46.03.050 is amended by adding a new subsection to read: 08 (b) The department shall continue to investigate the feasibility of securing 09 federal approval under 33 U.S.C. 1342(b) of the state's permit program for discharges 10 into navigable water so that the department has authority to administer the national 11 pollutant discharge elimination system in the state in lieu of the federal permit program 12 otherwise applicable to the state under 33 U.S.C. 1342(a). If, at any time, the 13 department determines that statutory or budgetary changes are necessary to obtain or 14 maintain federal approval of the state's program under this subsection, the department 15 shall notify the legislature through the governor. 16 * Sec. 4. AS 46.03 is amended by adding new sections to read: 17 Sec. 46.03.085. Water quality standards. (a) In adopting and applying water 18 quality standards, the department, consistent with 33 U.S.C. 1251 - 1376 (Clean Water 19 Act), 20 (1) shall ensure that the standards are sufficient to protect human health 21 and propagation of fish and wildlife; 22 (2) shall consider reasonably available information on the background 23 condition of bodies of water, including the presence of naturally occurring pollutants, 24 such as arsenic; 25 (3) shall use scientific justification to develop water quality standards 26 that can be reliably measured; 27 (4) may not require water discharged by a user to be of a higher quality 28 than the natural condition of the water receiving the discharge; if the available 29 evidence reasonably demonstrates that the natural condition of a body of water does 30 not meet the standards contained in the water quality criterion applicable to that water 31 under regulations of the department and the natural condition maintains and protects
01 the existing uses of the water, then the natural condition of that body of water 02 constitutes the criterion that must be met by a discharge into that body of water; and 03 (5) shall provide procedures for permitting mixing zones in state bodies 04 of water under regulations adopted by the department. 05 (b) Except when setting standards under AS 03.05.011(a) for shellfish growing 06 areas, as defined in the national shellfish sanitation program manual of operations 07 published by the Food and Drug Administration, the department may adopt a water 08 quality standard or other regulation related to water quality that is more restrictive than 09 applicable federal water quality criteria or regulations only after following the 10 procedures in AS 46.03.087(b). 11 (c) Within 90 days after receiving a written request to amend the state's water 12 quality standards to incorporate a reduction in, or elimination of, federal water quality 13 criteria, or by another date mutually agreed on by the applicant and the department, 14 the department shall either propose regulations that amend the state's water quality 15 standards to incorporate the reduction or elimination or initiate the procedure required 16 under AS 46.03.087(b). If, following the procedure under AS 46.03.087(b), the 17 department is unable to make the written findings required under AS 46.03.087(b)(3), 18 the department shall propose regulations that amend the state's water quality standards 19 to incorporate the reduction in or elimination of the federal water quality criteria or 20 regulations. 21 (d) Except as otherwise provided in AS 46.03.087, the measurement of 22 constituents other than sediment to determine whether a permittee is in compliance 23 with permit limitations based on water quality shall be by methods approved in writing 24 by the United States Environmental Protection Agency or by substantially equivalent 25 methods approved by the department. 26 (e) Except as otherwise provided in AS 46.03.087, the measurement of 27 sediment to determine whether a permittee is in compliance with permit limitations 28 based on water quality shall be by the volumetric Imhoff cone method for settleable 29 solids. However, this subsection may not be construed to limit the department's 30 authority to adopt water quality criteria for total suspended solids to meet United States 31 Environmental Protection Agency requirements.
01 (f) In this section, "background condition" has the meaning given in 02 AS 46.03.020(c). 03 Sec. 46.03.087. Special procedures for certain water quality regulations. 04 (a) The department may, after following the procedures in this section, adopt a 05 (1) water quality standard or discharge standard that is more restrictive 06 than applicable federal water quality criteria or discharge standards; 07 (2) water quality standard or discharge standard for which there is no 08 corresponding federal water quality criteria or discharge standard; or 09 (3) regulation that allows the use of a method that is not substantially 10 equivalent to methods approved by the United States Environmental Protection Agency 11 for the measurement of constituents to determine whether a permittee is in compliance 12 with permit limitations related to water quality. 13 (b) Before adopting a standard or regulation governed by (a) of this section, 14 the department shall 15 (1) make available to the public, at convenient locations, copies of the 16 proposal and the findings of the department that describe the basis for the proposal; 17 (2) consider and prepare a written finding assessing the economic and 18 technological feasibility of the proposal; and 19 (3) find in writing, as applicable, that 20 (A) hydrologic conditions or discharge characteristics in the area 21 of the state or at the particular site where the standard or regulation applies 22 reasonably require the water quality standard, discharge standard, or method of 23 measurement to protect human health and welfare or propagation of fish and 24 wildlife; and 25 (B) hydrologic conditions or discharge characteristics are 26 significantly different in that area of the state or at that particular site from 27 those upon which the corresponding federal criteria or regulations are based. 28 * Sec. 5. TRANSITIONAL REVIEW OF REGULATIONS. (a) The Department of 29 Environmental Conservation shall, during the triennial review process of regulations that is 30 required under 33 U.S.C. 1313(c) (Clean Water Act), review its water quality regulations that 31 are in effect on the effective date of this Act in order to determine if they comply with federal
01 requirements and are not more stringent than applicable federal regulations. If the review 02 indicates that there are state regulations that are more stringent than applicable federal 03 regulations, the department shall determine whether it could justify those regulations under the 04 requirements of AS 46.03.087(b)(3), enacted by sec. 4 of this Act. If the department 05 determines that it cannot meet the requirements of AS 46.03.087(b)(3), the department shall 06 adopt the necessary revisions to the regulations. It is the legislature's intent that the 07 department complete its review of all regulations governed by this subsection and its adoption 08 of all necessary revisions required under this subsection within four years after the effective 09 date of this section. 10 (b) The Department of Environmental Conservation shall, by January 31, 1999, and 11 annually thereafter until all of the state water quality regulations in effect on the effective date 12 of this Act are reviewed, prepare a written report on the status of the department's review and 13 revisions required under (a) of this section. The department shall submit the report to the 14 governor and notify the legislature that the report is available.