CSHB 51(RLS) AM: "An Act relating to the Department of Environmental Conservation; amending Rules 79 and 82, Alaska Rules of Civil Procedure; and providing for an effective date."
00CS FOR HOUSE BILL NO. 51(RLS) am 01 "An Act relating to the Department of Environmental Conservation; amending 02 Rules 79 and 82, Alaska Rules of Civil Procedure; and providing for an effective 03 date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. FINDINGS AND INTENT. (a) The legislature confirms that it is the policy 06 of the state to adopt laws and implement water quality standards based on scientific and 07 technical evidence. The legislature specifically requests the Department of Environmental 08 Conservation, when implementing AS 46.03.085 - 46.03.088, enacted by sec. 4 of this Act, 09 to coordinate its efforts with other state agencies to achieve cost efficiencies and, when 10 adopting regulations, to consider measures that encourage the creation and retention of jobs 11 for Alaskans and the economic development of the state's natural resources consistent with 12 the public interest and that protect multiple uses of the state's waters. It is the legislature's 13 intent that Alaska's water quality regulations be adopted and implemented in a credible 14 manner, be based on scientific criteria, and take into consideration economic feasibility;
01 however, protection of public health is paramount. The people of Alaska express their will 02 through the legislature, and regulations implement legislative action. 03 (b) The legislature also finds that 04 (1) the federal government has required, in the federal Safe Drinking Water 05 Act amendments of 1996 (P.L. 104-182), that states have minimum administrative penalty 06 authority in order to maintain primary enforcement authority for the federal drinking water 07 program (42 U.S.C. 300f - 300j-26); 08 (2) the state cannot receive federal money for construction of public drinking 09 water systems unless it maintains primacy under the federal program (sec. 130, P.L. 104-182); 10 (3) maintaining state primary enforcement authority for the federal program 11 is in the best interests of the state so as to provide maximum flexibility and local control of 12 this program and to ensure continued federal money for Alaska public water supply system 13 construction projects; 14 (4) ensuring public health through protection of public water supplies is of 15 fundamental importance to the people of the state; 16 (5) sec. 5 of this Act is in the public interest by enacting administrative penalty 17 authority in order to meet the minimum federal requirements for maintaining state primary 18 enforcement authority for the federal drinking water program. 19 * Sec. 2. AS 46.03.050 is amended by adding a new subsection to read: 20 (b) The department may continue to investigate the feasibility of securing 21 federal approval under 33 U.S.C. 1342(b) of the state's permit program for discharges 22 into navigable water so that the department has authority to administer the national 23 pollutant discharge elimination system in the state in lieu of the federal permit program 24 otherwise applicable to the state under 33 U.S.C. 1342(a). Nothing in AS 46.03.085 - 25 46.03.088 may be interpreted to prevent the department from continuing its effort to 26 secure approval under 33 U.S.C. 1342(b). 27 * Sec. 3. AS 46.03.080 is amended by adding new subsections to read: 28 (b) If the available evidence reasonably demonstrates that the natural condition 29 of a body of water does not meet the requirements of the quality or purity standards 30 that would otherwise be applicable to the classification of the water adopted under (a) 31 of this section, the natural condition of the water shall constitute the applicable
01 standard of quality or purity. 02 (c) In this section, "natural condition" means the baseline water quality when 03 the baseline data is obtainable unless the baseline water quality has been altered by 04 historical or upslope activity. If the baseline data is not obtainable or if the baseline 05 water quality has been altered by historical or upslope activity, then "natural condition" 06 has the meaning given to "background condition" in AS 46.03.088. 07 * Sec. 4. AS 46.03 is amended by adding new sections to read: 08 Sec. 46.03.085. Water quality standards. (a) In adopting and applying water 09 quality standards, the department, consistent with 33 U.S.C. 1251 - 1376 (Clean Water 10 Act), 11 (1) shall ensure that the minimum standards are sufficient to protect 12 human health and propagation of fish and wildlife; 13 (2) shall consider reasonably available information on the background 14 or natural condition of bodies of water, including the presence of naturally occurring 15 pollutants, such as, but not limited to, arsenic; 16 (3) shall use scientific justification to develop water quality standards 17 that can be reliably measured; 18 (4) may not require water discharged by a user to be of a higher quality 19 than the background or natural condition of the water receiving the discharge; and 20 (5) shall provide procedures for permitting mixing zones in state bodies 21 of water under regulations adopted by the department. 22 (b) In adopting mixing zone regulations under (a)(5) of this section and to 23 ensure that a mixing zone is as small as practicable, the department shall limit the 24 maximum size of a mixing zone, unless available evidence reasonably demonstrates 25 that a larger mixing zone will adequately protect human health and the environment 26 outside the mixing zone, as follows: 27 (1) for estuarine and marine waters, measured at mean lower low water, 28 (A) the cumulative lineal length of all mixing zones intersected 29 on any given cross section of an estuary, inlet, cove, channel, or other marine 30 waterway may not exceed 10 percent of the total length of that cross section; 31 and
01 (B) the horizontal area allocated to mixing zones may not 02 exceed 10 percent of the surface area; 03 (2) for lakes, the total horizontal area allocated to all mixing zones may 04 not exceed 10 percent of the lake's surface area; and 05 (3) for streams, rivers, or other flowing fresh waters, the length of a 06 mixing zone may not extend beyond the location described in (A) or (B) of this 07 paragraph, whichever is closer to the point of discharge: 08 (A) the location that is two times the distance of the computed 09 point of complete mixing, as determined using a standard river flow mixing 10 model accepted by the department; or 11 (B) the location where available evidence reasonably 12 demonstrates that a public health hazard would occur. 13 (c) Except when setting standards under AS 03.05.011(a) for shellfish growing 14 areas, as defined in the national shellfish sanitation program manual of operations 15 published by the Food and Drug Administration, the department may adopt a water 16 quality standard or other regulation related to water quality that is more restrictive than 17 applicable federal water quality criteria or regulations only after following the 18 procedures in AS 46.03.087(b). 19 (d) Notwithstanding AS 44.62.230, a person may submit a written request to 20 the department to amend the state's water quality standards, criteria, or other 21 regulations to incorporate a reduction in or elimination of a federal water quality 22 standard, criteria, or other regulation. The request must state clearly and concisely the 23 state and federal standard, criteria, or regulation in question and provide the department 24 with the reasons and basis for the requested amendment. Within 90 days after 25 receiving the request, or by another date mutually agreed on by the applicant and the 26 department, the department shall either propose regulations to incorporate the reduction 27 or elimination of the federal provision or initiate the procedure required under 28 AS 46.03.087(b). If, following the procedure under AS 46.03.087(b), the department 29 is unable to make the written findings required under AS 46.03.087(b)(3), the 30 department shall propose regulations that amend the state's water quality standards to 31 incorporate the reduction in or elimination of the federal water quality criteria or
01 regulations. 02 (e) Except as otherwise provided in AS 46.03.087, the measurement of 03 constituents other than sediment to determine whether a permittee is in compliance 04 with permit limitations based on water quality shall be by methods approved in writing 05 by the United States Environmental Protection Agency or substantially equivalent 06 methods approved by the department. 07 (f) Except as otherwise provided in AS 46.03.087, the measurement of 08 sediment to determine whether a permittee is in compliance with permit limitations 09 based on water quality shall be by the volumetric Imhoff cone method for settleable 10 solids. However, this subsection may not be construed to limit the department's 11 authority to adopt water quality criteria for total suspended solids to meet United States 12 Environmental Protection Agency requirements. 13 Sec. 46.03.087. Special procedures for certain water quality regulations. 14 (a) The department may, after following the procedures in this section, adopt a 15 (1) water quality standard or permit limit that is more restrictive than 16 the applicable federal water quality standard, criteria, or other regulation; 17 (2) water quality standard or permit limit for which there is no 18 corresponding federal water quality standard, criteria, or other regulation; or 19 (3) regulation that allows the use of an alternative method that is 20 scientifically or technically more appropriate than methods approved by the United 21 States Environmental Protection Agency for the measurement of constituents to 22 determine whether a permittee is in compliance with permit limitations related to water 23 quality. 24 (b) Before adopting a standard or regulation governed by (a) of this section, 25 the department shall 26 (1) make available to the public, at convenient locations, copies of the 27 proposal and the findings of the department that describe the basis for the proposal; 28 (2) consider and prepare a written finding assessing the economic and 29 technological feasibility of the proposal; and 30 (3) find in writing, as applicable, that 31 (A) biological, chemical, and physical conditions in the area of
01 the state or at the particular site where the standard or regulation applies 02 reasonably require the water quality standard, permit limits, or method of 03 measurement to protect human health and welfare or propagation of fish and 04 wildlife; and 05 (B) biological, chemical, physical, and economic conditions are 06 significantly different in that area of the state or at that particular site from 07 those upon which the corresponding federal criteria or regulations are based. 08 Sec. 46.03.088. Definitions. In AS 46.03.085 - 46.03.087, and in regulations 09 of the department that relate to water quality, 10 (1) "background condition" means the biological, chemical, and 11 physical conditions of a body of water outside the area of influence of the discharge 12 under consideration; when the department performs background sampling to determine 13 a background condition during an enforcement action, the department shall measure 14 conditions that are upslope or outside the area of influence of the discharge; if several 15 discharges to a body of water exist and an enforcement action is being taken, the 16 department's background sampling shall measure conditions immediately upslope from 17 each discharge; 18 (2) "drinking water" means a body of water or a water supply from 19 which the water is safe to drink in its natural state; 20 (3) "industrial use" means use of a water supply for fish processing, 21 food processing, mining, placer mining, manufacturing, development, or production, 22 including energy production; 23 (4) "natural condition" means a physical, chemical, biological, or 24 radiological condition existing in a body of water before human, industrial, or 25 commercial use caused an influence on, a discharge to, or addition of material to the 26 water known at the time of enactment of the federal law known as the Federal Water 27 Pollution Control Act Amendments of 1972. 28 * Sec. 5. AS 46.03 is amended by adding a new section to read: 29 Sec. 46.03.761. Administrative penalties. (a) The department may assess 30 an administrative penalty against a person who violates or causes or permits to be 31 violated a provision of AS 46.03.720(b) or a term or condition of a regulation, order,
01 permit, approval, or certificate of the department issued or adopted under 02 AS 46.03.720(b). 03 (b) An administrative penalty assessed under this section may not exceed 04 $1,000 a day for each violation if the affected public water supply system serves a 05 population of more than 10,000 persons. An administrative penalty assessed under this 06 section may not exceed $750 a day for each violation if the affected public water 07 supply system serves a population of 10,000 or fewer persons. Each provision, term, 08 or condition violated is a separate and distinct violation. If a violation of a provision, 09 term, or condition continues from day to day, each day is a separate violation. 10 (c) In determining the amount of a penalty assessed under this section, the 11 department shall consider 12 (1) the effect of the violation on the public health or the environment; 13 (2) reasonable costs incurred by the state in the detection, investigation, 14 and attempted correction of the violation; 15 (3) the economic savings realized by the person by not complying with 16 the requirement for which a violation is charged; 17 (4) any previous history of compliance or noncompliance with this 18 chapter, AS 46.04, AS 46.09, and AS 46.14; 19 (5) the need to deter future violations; 20 (6) the extent and seriousness of the violation, including the potential 21 for the violation to threaten public health or the environment; 22 (7) whether the person achieved compliance with the requirement 23 violated within the shortest feasible time; and 24 (8) other factors considered relevant to the assessment that are adopted 25 by the department in regulation. 26 (d) If a penalty is assessed under this section, the department shall provide the 27 assessment notice to the person assessed by personal service or by certified mail, 28 return receipt requested. The notice must inform the person of the amount of the 29 proposed penalty and that the person has 30 days within which to file a notice with the 30 department contesting the proposed penalty. If, within 30 days after the receipt of the 31 notification issued by the department, the person fails to file a notice contesting the
01 proposed penalty, the proposed penalty is considered a final order. The department 02 may extend the time periods specified in this subsection for good cause. 03 (e) If a person files notice contesting a proposed penalty under (d) of this 04 section, the department shall afford an opportunity for a hearing in accordance with 05 its adjudicatory hearing procedures. After an opportunity for a hearing, the department 06 shall issue an order, based upon findings of fact, affirming, modifying, or rescinding 07 the administrative penalty. The order is the final agency action on the penalty. 08 (f) A person against whom an administrative penalty is assessed may obtain 09 judicial review of the administrative penalty by filing a notice of appeal in the superior 10 court as provided by the Alaska Rules of Appellate Procedure. An order of the 11 department under (e) of this section becomes final and is not subject to review by a 12 court if a notice of appeal is not filed with the superior court within the period 13 provided for by the Alaska Rules of Appellate Procedure. 14 (g) Action under this section by the department does not limit or otherwise 15 affect the authority of the department to otherwise enforce this chapter, AS 46.04, 16 AS 46.08, AS 46.09, AS 46.14, or regulations adopted under those statutes, or to 17 recover damages, restoration expenses, investigation costs, court costs, attorney fees, 18 or other necessary expenses. The court shall set off against a judicial civil assessment 19 subsequently awarded under AS 46.03.760 an amount ordered to be paid under this 20 section by the same person for the same violation. 21 (h) If a person fails to pay an administrative penalty assessed under this 22 section after the penalty becomes final, the department may bring an action to collect 23 the penalty. The amount of the penalty is not subject to review by the court in such 24 an action. 25 (i) If the department prevails in a collection action brought under (h) of this 26 section, the court shall order the person to pay full reasonable attorney fees and costs 27 incurred by the department in the collection action. 28 * Sec. 6. The provisions of AS 46.03.761(i), added by sec. 5 of this Act, have the effect 29 of amending Rule 79 and Rule 82, Alaska Rules of Civil Procedure, by allowing the recovery 30 of full reasonable attorney fees and costs in certain actions. 31 * Sec. 7. AS 46.03.761(i), added by sec. 5 of this Act, takes effect only if sec. 6 of this
01 Act receives the two-thirds majority vote of each house of the legislature required by art. IV, 02 sec. 15, Constitution of the State of Alaska. 03 * Sec. 8. TRANSITIONAL REVIEW OF WATER QUALITY REGULATIONS. (a) The 04 Department of Environmental Conservation shall, during the triennial review process of 05 regulations that is required under 33 U.S.C. 1313(c) (Clean Water Act), review its water 06 quality regulations that are in effect on the effective date of this Act in order to determine if 07 they comply with federal requirements and are not more stringent than applicable federal 08 regulations. If the review indicates that there are state regulations that are more stringent than 09 applicable federal regulations, the department shall determine whether it could justify those 10 regulations under the requirements of AS 46.03.087(b)(3), enacted by sec. 4 of this Act. If 11 the department determines that it cannot meet the requirements of AS 46.03.087(b)(3), the 12 department shall adopt the necessary revisions to the regulations. It is the legislature's intent 13 that the department complete its review of all regulations governed by this subsection and its 14 adoption of all necessary revisions required under this subsection within four years after the 15 effective date of this section. 16 (b) The Department of Environmental Conservation shall, by January 31, 1999, and 17 annually thereafter until all of the state water quality regulations in effect on the effective date 18 of this Act are reviewed, prepare a written report on the status of the department's review and 19 revisions required under (a) of this section. The department shall submit the report to the 20 governor and notify the legislature that the report is available. 21 * Sec. 9. TRANSITION: REGULATIONS FOR ADMINISTRATIVE PENALTIES. The 22 Department of Environmental Conservation may immediately proceed to adopt regulations to 23 implement changes made by sec. 5 of this Act. The regulations take effect under AS 44.62 24 (Administrative Procedure Act), but not before the effective date of sec. 5 of this Act. 25 * Sec. 10. Sections 1(b) and 5 of this Act take effect on the effective date of regulations 26 adopted by the United States Environmental Protection Agency (EPA) implementing the state 27 administrative penalty requirement for state primary enforcement authority under 42 U.S.C. 28 300g-2 of the federal Safe Drinking Water Act or, if EPA determines that regulations are not 29 necessary, on the date EPA requires under the authority of that statute that the state must have 30 administrative penalty authority to maintain its state primacy over the federal drinking water 31 program, whichever event occurs first in time. The commissioner of environmental
01 conservation shall notify the lieutenant governor and the revisor of statutes of the effective 02 date of the state administrative penalty authority requirement. 03 * Sec. 11. Section 9 of this Act takes effect immediately under AS 01.10.070(c).