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12  AN ACT concerning surface water quality; relating to application of cer-
13    tain stream designations and certain standards; creating the special
14    commission on water quality standards and specifying the membership
15    and functions thereof.
16
17    Whereas, The federal clean water act and regulations adopted under
18  that act set out broad parameters for the establishment of state water
19  quality standards; and
20    Whereas, The federal act and regulations recognize that standards
21  should take into consideration the use and value of waters for a variety
22  of purposes, including public water supplies, propagation of fish and wild-
23  life, and recreational, agricultural and industrial purposes; and
24    Whereas, The federal act and regulations give the state broad latitude
25  to designate water uses, giving due consideration to social and economic
26  factors; and
27    Whereas, The state has the responsibility and obligation to ensure pub-
28  lic health and environmental protection through the identification, adop-
29  tion and enforcement of scientifically established surface water quality
30  standards within a cost-effective framework; and
31    Whereas, The United States Environmental Protection Agency's Na-
32  tional Ammonia Criteria Document recognizes that there is insufficient
33  scientific data to derive a broadly applicable standard for ammonia toxicity
34  and evidence submitted to the Environmental Protection Agency for the
35  Triazine Special Review indicates that the numeric chronic aquatic life
36  criteria for atrazine is not based on scientific evidence; and
37    Whereas, The special aquatic life use waters designation, the numeric
38  aquatic life criteria for total ammonia and chloride, and the numeric
39  chronic aquatic life criteria for atrazine contained in the surface water
40  quality standards adopted by the Department of Health and Environment
41  may be based on incorrect information and thereby cause widespread and
42  substantial unnecessary social and economic impacts without appreciably
43  benefiting the environment: Now, therefor,
Sub. HB 2368--Am. by SCW
                                     

 1  Be it enacted by the Legislature of the State of Kansas:
 2    Section 1.  As used in this act, unless the context otherwise requires:
 3    (a)  ``Department'' means the department of health and environment.
 4    (b)  ``Secretary'' means the secretary of health and environment.
 5    (c)  ``Surface water quality standards'' means the Kansas surface water
 6  quality standards found at K.A.R. 28-16-28b et seq., as in effect August
 7  29, 1994.
 8    Sec. 2.  On and after the effective date of this act and before July 1,
 9  1999:
10    (a)  The department shall use the expected aquatic life use mixing
11  zone and low flow provisions of the surface water quality standards in
12  determining national pollutant discharge elimination system (NPDES)
13  permit limits for permits issued by the department.
14    (b)  Unless an applicant for an NPDES permit agrees to meet all
15  surface water quality standards, the department shall not require the ap-
16  plicant to comply with the numeric aquatic life criteria for total ammonia
17  and chlorides that are contained in the surface water quality standards
18  and shall instead require an applicant holding an existing permit to comply
19  with the applicant's existing permit requirements for total ammonia and
20  chlorides and an applicant for a new permit to comply with the standards
21  for total ammonia and chlorides that took effect May 1, 1987.
22    (c)  The department shall suspend the numeric chronic aquatic life
23  criteria for atrazine contained in the surface water quality standards and
24  shall rely instead on the drinking water standard of a maximum 3 part
25  per billion for atrazine.
26    (d)  Permits issued for expansion, upgrade or new construction of was-
27  tewater treatment facilities shall include the following statement of con-
28  ditions, which shall be legally binding and enforceable upon the permit-
29  tee:
30    ``The permittee, by electing to proceed with a wastewater treatment
31  project while compliance with the numeric aquatic life criteria for total
32  ammonia and chlorides contained in the surface water quality standards
33  is not required under section 2, incurs and acknowledges the legal duty
34  and obligation to bring the facilities and the operations authorized by this
35  permit into compliance with any more stringent numeric criteria for am-
36  monia and chlorides adopted pursuant to subsection (g) of section 3,
37  within 24 months following adoption of the more stringent criteria.''
38    Sec. 2.  On and after the effective date of this act and before
39  July 1, 1999:
40    (a)  The department shall use a mixing zone of at least 50% of
41  the average cross-sectional area of the stream and a low flow pro-
42  vision of one cubic foot per second or the 7Q10 flow, whichever is
43  the greater existing condition in the receiving stream, in determin-
Sub. HB 2368--Am. by SCW
                                     

 1  ing national pollutant discharge elimination system (NPDES) per-
 2  mit limits for total ammonia and chlorides under subsections (b)
 3  and (d) for permits issued by the department.
 4    (b)  Unless an applicant for a new or renewal NPDES permit
 5  agrees to meet all surface water quality standards, notwithstanding
 6  the provisions of subsection (a), the department shall not require
 7  the applicant to comply with the numeric aquatic life criteria for
 8  total ammonia and chlorides that are contained in the surface water
 9  quality standards and shall instead require an applicant to comply
10  with the applicant's existing permit requirements for total ammonia
11  and chlorides or with the standards for total ammonia and chlorides
12  that took effect May 1, 1987, whichever is more protective.
13    (c)  The department shall not use the numeric chronic aquatic
14  life criteria for atrazine in Table 1a of subsection (d) of K.A.R. 1995
15  Supp. 28-16-28e and shall rely instead on the greater of either an
16  annual average of 3 parts per billion for atrazine or any revised
17  numeric chronic aquatic life criteria for atrazine [adopted by the
18  department after consideration of any new criteria] recommended
19  by the United States environmental protection agency after the ef-
20  fective date of this act.
21    (d)  Permits issued for expansion, upgrade or new construction
22  of wastewater treatment facilities and modifications and renewals
23  of existing permits shall include the following statement of condi-
24  tions, which shall be legally binding and enforceable upon the per-
25  mittee:
26    ``The permittee who does not agree to meet effluent limitations as
27  necessary to attain the aquatic life criteria for ammonia and chlo-
28  rides within the 1994 surface water quality standards incurs and
29  acknowledges the legal duty and obligation to bring the facilities
30  and operations authorized by this permit into compliance with the
31  permit effluent limitations based on the 1994 surface water quality
32  standards within 24 months after July 1, 1999, unless before July
33  1, 1999, more stringent numeric criteria for ammonia and chlorides
34  are adopted pursuant to subsection (g) of section 3, in which case
35  the permittee incurs and acknowledges the legal duty and obliga-
36  tion to bring such facilities and operations into compliance with the
37  permit effluent limitations based on the more stringent criteria
38  within 24 months following the effective date of the more stringent
39  criteria.''
40    (e)  The department shall develop a plan and permit conditions
41  that will assist entities that, on the effective date of this act, hold a
42  permit or are applicants for a permit in meeting the requirements
43  of this section relating to total ammonia and chlorides.
Sub. HB 2368--Am. by SCW
                                     

 1    Sec. 3.  (a) There is hereby created the Kansas special commission
 2  on surface water quality standards. Within the limits of appropriations
 3  therefor, the commission shall undertake the following activities:
 4    (1)  Investigate and evaluate the technical and scientific basis of the
 5  surface water quality standards, including: (A) Stream designations use
 6  attainability analysis as required when compiling the 1996 Kansas Water
 7  Quality Assessment 305(b) report pursuant to 33 U.S.C. 1315(b)(1)(D)
 8  or 33 U.S.C. 1313(c)(2)(A); (B) low, high and yearly average flow impact
 9  criteria; and (C) scientific appropriateness of the criteria guidance of the
10  United States Environmental Protection Agency and the department;
11    (2)  evaluate whether the surface water quality standards, including
12  the use designations, surface water chemical and microbial criteria and
13  the ``Kansas Surface Water Register,'' as published by the department on
14  June 20, 1994, are based on sound scientific and technical data and in-
15  formation, whether such standards are more stringent than are required
16  by federal law and those of other midwestern and plains states, whether
17  generally accepted criteria exist for evaluating the appropriateness and
18  cost-effectiveness of the standard and whether the department should be
19  directed to make any changes in the standards;
20    (3)  develop and recommend cost-benefit or risk assessment models
21  for the evaluation of the impact of surface water quality standards on the
22  various elements of the environment, health and economy of Kansas,
23  including but not limited to human health, animal and plant species ac-
24  tually found or likely to be reintroduced in Kansas waters, industry, ag-
25  riculture and wastewater treatment;
26    (4)  assess the probability that designated uses contained in the sur-
27  face water quality standards can be attained in a cost-effective and rea-
28  sonable manner when requirements are met;
29    (5)  evaluate whether the surface water quality standards were
30  adopted in full compliance with the requirements of Kansas law in effect
31  at the time of adoption of the standards and whether the estimates of
32  economic impact completed at the time accurately predicted the fiscal
33  impact of the standards on communities facing compliance with the stan-
34  dards in 1997 and 1998;
35    (6)  advise the governor, legislature and secretary of any revisions to
36  the surface water quality standards that are justified based on additional
37  scientific and technical information and data;
38    (7)  advise the governor, legislature and secretary whether the de-
39  partment's process of revising the surface water quality standards is in
40  full compliance with federal and state law;
41    (8)  advise the governor, legislature and secretary regarding the extent
42  of the department's compliance with the provisions of 1996 House Res-
43  olution No. 6013, concerning consultation with community officials on
Sub. HB 2368--Am. by SCW
                                     

 1  the impacts of the surface water quality standards on the communities of
 2  the state; and
 3    (9)  recommend the adoption of any procedures that the commission
 4  deems advisable to ensure the collection and evaluation of scientific and
 5  technical information necessary for the revision of the surface water qual-
 6  ity standards in future years.
 7    (b)  In completing its study, the commission shall evaluate and advise
 8  the governor, legislature and secretary whether:
 9    (1)  There is reliable scientific documentation of the actual existence
10  of the species that are designed to be protected by the special aquatic
11  use designation contained in the surface water quality standards; and
12    (2)  the special aquatic use designation and reduced mixing zone
13  requirements contained in the surface water quality standards are based
14  on any recognized scientific data and models and whether there is an
15  established and clear relationship between the presence of the regulated
16  pollutants and the protection or restoration of the targeted aquatic spe-
17  cies.
18    (c)  The commission shall consist of seven members appointed by the
19  governor. All members shall serve at the pleasure of the governor. The
20  term of office of such members shall commence at the time of appoint-
21  ment until July 1, 1998, or unless the commission or the appointment is
22  terminated by action of the governor on an earlier date. The chairperson
23  of the commission shall be appointed by the governor from among the
24  members of the commission. The staff of the department of health and
25  environment, the department of agriculture, the Kansas biological survey
26  and the department of wildlife and parks shall cooperate with and assist
27  the deliberations of the commission.
28    (d)  Members of the commission shall have experience in one or more
29  of the following areas and disciplines: Environmental sciences; civil en-
30  gineering; business and industry; public finance; municipal wastewater
31  treatment; agriculture or agribusiness; environmental law; public health
32  sciences; aquatic biology; risk assessment; and cost benefit analysis. At
33  least one member shall represent the general public. Except for faculty
34  members of universities under the supervision of the Kansas board of
35  regents, no state officer or employee shall serve on the commission.
36    (e)  Before assuming office as a member of the commission, each per-
37  son appointed as a member shall complete and file with the office of the
38  secretary of state:
39    (1)  A statement containing the information required in a statement
40  of substantial interests pursuant to K.S.A. 46-247 and amendments
41  thereto; and
42    (2)  a list of citations of any publications written by the person.
43    (f)  Within the limits of appropriations provided therefor, the com-
Sub. HB 2368--Am. by SCW
                                     

 1  mission may retain such consultants and temporary staff as the commis-
 2  sion deems necessary to complete the commission's investigations and
 3  final report. The secretary of administration shall provide appropriate
 4  space for the meetings of the commission. Each member of the commis-
 5  sion shall receive compensation, subsistence, mileage and expenses as
 6  provided by K.S.A. 75-3223 and amendments thereto.
 7    (g)  On or before January 1, 1998, the commission shall submit a pre-
 8  liminary report to the governor and the legislature. The commission shall
 9  submit a final report to the governor and the legislature on or before June
10  30, 1998. The department shall hold public hearings and accept public
11  comment on the commission's final report. After completion of the hear-
12  ings and receipt of the comments, the department shall develop and pub-
13  lish proposed rules and regulations on or before December 31, 1998, and
14  shall adopt rules and regulations in accordance with the rules and regu-
15  lations filing act. On and after July 1, 1999, all stream designations and
16  criteria contained in the surface water quality standards shall be in full
17  force and effect unless otherwise revised by rules and regulations adopted
18  by the secretary.
19    Sec. 4.  This act shall take effect and be in force from and after its
20  publication in the Kansas register.