Senator David P. Hinkins proposes the following substitute bill:




Chief Sponsor: David P. Hinkins

House Sponsor: Mike K. McKell


8     General Description:
9          This bill modifies provisions of the Water Quality Act.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     establishes an independent peer review process for challenges made to proposals
14     from the Division of Water Quality; and
15          ▸     establishes the requirements, including selecting the panel of independent experts,
16     for an independent peer review.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     ENACTS:
23          19-5-105.3, Utah Code Annotated 1953

25     Be it enacted by the Legislature of the state of Utah:

26          Section 1. Section 19-5-105.3 is enacted to read:
27          19-5-105.3. Independent peer review of a proposal.
28          (1) As used in this section:
29          (a) "Challenging party" means a person who has or is seeking a permit in accordance
30     with this chapter and chooses to use the independent peer review process described in this
31     section to challenge a proposal.
32          (b) "Independent peer review" is a review conducted:
33          (i) in accordance with this section;
34          (ii) by experts having technical expertise in the proposal being reviewed; and
35          (iii) by individuals who are not:
36          (A) currently conducting research funded by the division or the challenging party;
37          (B) employed by an entity that is regulated under this chapter;
38          (C) a spouse or family member of someone who is employed by the division or the
39     challenging party; or
40          (D) an active, participatory member of a non-profit organization that advocates
41     positions with the division or the Legislature.
42          (c) "Proposal" means any science-based initiative proposed by the division on or after
43     January 1, 2016, that would financially impact a challenging party and that would:
44          (i) change water quality standards;
45          (ii) develop or modify total maximum daily load requirements;
46          (iii) modify wasteloads or other regulatory requirements for permits; or
47          (iv) change rules or other regulatory guidance.
48          (d) "Study" means a written analysis conducted by or otherwise relied upon by the
49     division in support of a proposal.
50          (e) "Technology based nutrient effluent limits" are maximum nutrient limitations based
51     on the availability of technology to achieve the limitations, rather than on a water quality
52     standard or a total maximum daily load standard.
53          (2) The director shall initiate an independent peer review when the following
54     conditions are met:
55          (a) a challenging party challenges in writing a study or the technical or scientific data
56     upon which a proposal is based and requests an independent peer review;

57          (b) if the independent peer review is related to examining a technology based nutrient
58     effluent limit, the challenging party provides written notice to the division requesting an
59     independent peer review before the technology based nutrient effluent limit is adopted into a
60     permit issued by the division;
61          (c) if the independent peer review is not related to examining a technology based
62     nutrient effluent limit, the challenging party provides written notice to the division requesting
63     an independent peer review related to a proposal before the proposal has been adopted by the
64     division or the board;
65          (d) the challenging party agrees to provide the funding to pay for the independent peer
66     review; and
67          (e) the challenging party would be substantially impacted by the adoption of the
68     proposal.
69          (3) The director shall ensure that the independent peer review is completed within one
70     year from the date the peer review panel described in Subsection (5) is selected.
71          (4) (a) If there is more than one challenging party challenging a study or the technical
72     or scientific data upon which a proposal is based, the challenges will be consolidated into one
73     independent peer review.
74          (b) If challenges are consolidated into one independent peer review, the challenging
75     parties will be responsible for allocating the costs of the independent peer review among the
76     challenging parties.
77          (5) (a) When an independent peer review is conducted, there shall be appointed to a
78     peer review panel a minimum of three independent experts who are mutually agreeable to both
79     the division and the challenging party.
80          (b) Any additional independent experts appointed to the panel shall be mutually
81     agreeable to both the division and the challenging party.
82          (c) If an independent peer review panel has not been appointed within 60 days of the
83     day on which the director receives a written request for an independent peer review, a
84     three-person panel shall be selected as follows:
85          (i) one independent expert selected by the division;
86          (ii) one independent expert selected by the challenging party or, if more than one
87     challenge has been consolidated as described in Subsection (4), one independent expert

88     selected and mutually agreed to by the challenging parties; and
89          (iii) one independent expert mutually agreeable to the independent experts described in
90     Subsections (5)(c)(i) and (ii).
91          (6) (a) An independent peer review panel shall conduct its review in general
92     accordance with the guidance contained in the United States Environmental Protection
93     Agency's Peer Review Handbook.
94          (b) As part of an independent peer review, the independent peer review panel shall
95     allow for written public comment on the proposal being reviewed prior to issuing a written
96     report.
97          (7) An independent peer review panel shall prepare a final written report that:
98          (a) includes the findings of each member of the panel;
99          (b) is supported by the majority of the panel;
100          (c) includes an analysis of the panel's confidence, certainty, and major data gaps, if any,
101     related to the scientific basis behind the proposal; and
102          (d) includes one of the following findings:
103          (i) the proposal is scientifically defensible;
104          (ii) the proposal is not scientifically defensible; or
105          (iii) the proposal is scientifically defensible with conditions developed by the panel.
106          (8) In addition to the requirements described in Subsection (7), if an independent peer
107     review panel is examining a technology based nutrient effluent limit for a specified
108     downstream water body or a series of hydrologically connected water bodies, the panel's
109     written report shall find one of the following:
110          (a) the technology based nutrient effluent limit is scientifically necessary to protect the
111     designated beneficial uses of the specified downstream water body or the series of
112     hydrologically connected water bodies; or
113          (b) the technology based nutrient effluent limit is not scientifically necessary to protect
114     the designated beneficial uses of the specified downstream water body or the series of
115     hydrologically connected water bodies.
116          (9) The findings and any conditions of an independent peer review panel shall be
117     incorporated into a proposal as needed to ensure the scientific accuracy of the proposal.
118          (10) A proposal reviewed by an independent peer review panel that is found

119     scientifically defensible or scientifically defensible with conditions may be forwarded to the
120     board or to the director for further consideration and action as applicable.
121          (11) If technology based nutrient effluent limits in a proposal are found by an
122     independent peer review to not be scientifically necessary to protect a specified downstream
123     water body or series of hydrologically connected water bodies, the challenging party shall be
124     granted a variance by the division exempting compliance with the technology based effluent
125     limitation.