CHAPTER 11 DEVELOPMENTS IN ALASKA ENVIRONMENTAL LAW

• Jurisdiction: United States

Alaska Mineral Development
(Sep 1978)
CHAPTER 11
DEVELOPMENTS IN ALASKA ENVIRONMENTAL LAW
Jonathan K. Tillinghast
Assistant Attorney General, State of Alaska
Juneau, Alaska

I. INTRODUCTION

In 1977, the Alaska Legislature enacted the Environmental Procedures Coordination Act¹ in an attempt to abbreviate the not atypical morass posed by Alaska's panoply of permits and licenses. Inspired by similar legislation in Washington state,² the Alaska law, through the use of a master application,³ will enable practitioners to fight their clients' regulatory battles in an omnibus and well-defined forum — obviating the need to separately pursue any of the some 34 permits covered by the act which are applicable to the project.⁴

The task of forging into a single adjudicatory mold the disparate habits of Alaska's bureaucracies is a difficult one, and its accomplishment has been delayed by the absence of a fiscal year 1978 appropriation to implement the statute. The spirit of the enactment has, however, begun to surface in individual regulatory programs in the state. This paper will focus on three recent developments, and one pending action, in the field of Alaska environmental law where this theme of regulatory realism has played an important role. Topics to be discussed include (1) the Alaska Department of Environmental Conservation's ("ADEC") water pollution control authority; (2) ADEC enforcement policies; (3) the pending revamping of state water quality standards; and (4) the Alaska Coastal Management Act. It would be overstatement to characterize these developments as anything but experiments in accommodation of the competing interests inherent in regulatory reform. Yet because of their applicability to most development projects, and their

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uniqueness, they form fitting focal points for an examination into Alaska's second generation of environmental regulation.

II. ADEC AUTHORITY AND ENFORCEMENT POLICIES

A. ADEC Water Pollution Control Authority

The Alaska Department of Environmental Conservation was created in 1971.⁵ The creation of the department was intended to allow "the centralization of pollution control and enforcement" in Alaska.⁶ A variety of permit programs were consolidated in the agency's organic legislation, including solid waste,⁷ water pollution,⁸ air quality,⁹ pesticides¹⁰ and drinking water.¹¹ ADEC's jurisdiction is broad. In the area of water pollution, a permit is required for any operation which "results in the disposal of...waste material...into the waters...of the state."¹² "Waters of the state" is in turn defined to include all aquatic environments, "public or private"¹³ — a delineation which makes navigability irrelevant in determining the necessity for a permit.¹⁴ The applicability of ADEC's permit process to discharges into non-navigable waters was affirmed by the Alaska Legislature in a series of 1976 amendments to ADEC's statutes. As enacted in 1971, ALASKA STAT. § 46.03.100 required a water pollution permit only for "commercial or industrial" operations. The reach

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was extended in 1976 to "any operation"¹⁵ in order to make ADEC's authority co-terminous with that of the U. S. Environmental Protection Agency ("EPA") under sec. 402 of the Federal Water Pollution Control Act Amendments of 1972 ("FWPCA") (P.L. 92-500; 33 U.S.C. § 1342).¹⁶ As the sponsor analysis of the legislation noted,¹⁷ a National Pollutant Discharge Elimination System ("NPDES") permit from EPA is required whether or not the water is navigable.¹⁸

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An additional point should be made regarding ADEC's water pollution jurisdiction. It has been estimated that as much as 50 percent of the pollution affecting our nation's waters is due to non-point sources.¹⁹ In Alaska, major non-point source pollution problems may arise from surface mining and timber harvest activities.²⁰ Under § 402 of the FWPCA, the NPDES permit program is limited to point source discharges.²¹ ADEC, however, is not so constrained. A permit is required of any operation which "results" in the disposal of...waste materials...into the waters...of the state" (emphasis supplied)²² — regardless of the carrying agent utilized. It might be argued, of course, that the term "disposal" connotes only the direct deposit of wastes into the waters, and not the consequential degredation attendant bankside land development. Such an argument would ignore the statute's purpose, which is to prevent and abate

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water pollution.²³ Thus, the term "waste" is defined in ALASKA STAT. § 46.03.900(12) not in terms of the discharger's intent or the means of conveyance, but rather as including any substance "which may cause or tend to cause pollution of the waters of the state."

ADEC's authority over non-point source pollution is being implemented through the so-called "208 planning process." Under § 208 of the FWPCA, states are afforded three years²⁴ from the award of the initial planning grant — March, 1979, in Alaska's case — to identify, inter alia, silvicultural and mining non-point source pollution problems, and to establish controls "to the extent feasible."²⁵ ADEC has been granted some $596,000 for Alaska's "208" plan, which, as might be expected, is focusing on water quality problems associated with silviculture and placer mining. The ultimate goal is to identify the "best management practices" (40 C.F.R. § 131.11(j)) to control non-point source pollution from these endeavors. "Best management practices" is defined by EPA as:

"...a practice, or combination of practices, that is determined by a State (or designated area-wide planning agency) after problem assessment, examination of alternative practices, and appropriate public participation to be the most effective, practicable (including technological, economic, and institutional considerations) means of preventing or reducing the

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the amount of pollution generated by non-point sources to a level compatible with water quality goals."²⁶

ADEC will also identify control strategies to insure attainment of these practices, which may, but need not, include either the exercise of the department's permit authority over non-point sources under ALASKA STAT. § 46.03.100(a), or the certification procedure of § 401 of the FWPCA.²⁷

We thus have seen, in two instances, a rather unusual trait in a regulatory bureaucracy — jurisdictional caution. In one instance — dredge and fill regulation — the restraint is motivated by a desire to avoid unnecessary duplication of procedures. In the case of non-point source permit controls, the department has chosen to await the completion of the comprehensive 208 planning process.²⁸

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This policy, moreover has been extended to point source discharges. Under the FWPCA, point source discharges must be permitted by EPA.²⁹ EPA may not issue a NPDES permit unless the affected state has certified that the discharge will not contravene applicable technological and water quality standards.³⁰ State certification action is not reviewable by EPA or the federal judiciary: state remedies must be pursued.³¹ Moreover, the EWPCA preserves a state's right to require a separate permit — all of which could lead to a frightful three ring circus for the practitioner.³²

Most states have assumed the NPDES program from EPA under § 402(b) of the FWPCA. Assumption, in substance, combines the three procedures into one state forum. ADEC, primarily for fiscal reasons, has yet to petition for delegation. This year, the administration introduced a bill to authorize ADEC to assume the NPDES program.³³ A crowded legislative calendar prevented meaningful consideration of the proposal.

In 1976, however, ADEC did initiate a rather unique procedure which, in most cases, obviates the need for a separate state water polution permit. Administration-sponsored legislation allowed ADEC to "adopt" as the state permit any NPDES permit which it had certified under § 401 of the FWPCA.³⁴ Under this procedure, conditions necessary to insure compliance with state requirements — primarily water quality standards³⁵ — are imposed through the certification procedure. The certified NPDES permit would then be adopted as the state permit, enforceable by ADEC under its authorities, and, under ADEC regulations, extending to

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ADEC the same rights regarding inspection, sampling and record access as extend under the permit to EPA.³⁶

While the statutory adoption authority is discretionary, ADEC's regulations make adoption automatic upon certification.³⁷ State certification is to be sought contemporaneously with NPDES application,³⁸ and provisions for joint notice and public hearing⁴⁰ with EPA further reduce the burden of dual application.

B. ADEC Enforcement Policies

The principal problems in ADEC's 1971 organic legislation lay in the enforcement authorities conferred. No authority existed to seek an injunction against violation of ADEC requirements. The authority to issue administrative corrective orders was confined to water pollution violations,⁴¹ and civil penalties were available only in limited circumstances.⁴² As a result, almost total reliance was placed on ADEC's criminal sanctions.⁴³ As draconian as they were ineffective, these enforcement provisions were a major target of the 1976 comprehensive revisions to ADEC's statutes.⁴⁴

One major 1976 change was the expansion in scope of what has become ADEC's primary enforcement tool — the compliance order.⁴⁵ The shaping of remedial measures is usually the most difficult aspect of environmental

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adjudication,⁴⁶ and the least suited to judicial resolution. In compliance order proceedings, the focus is on the fashioning of corrective action. Proceedings are initiated by service on the respondent of ADEC's findings that a violation exists.⁴⁷ The notice does not specify any corrective action; rather, it requires the respondent to submit a detailed report specifying the respondent's...