Legislature(2007 - 2008)BUTROVICH 205
04/11/2007 03:30 PM Senate RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| Conocophillips | |
| SB91 | |
| SB44 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 91 | TELECONFERENCED | |
| *+ | SB 44 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
SB 91-POLLUTANT DISCHARGE PERMITS
4:21:42 PM
CHAIR HUGGINS announced SB 91 to be up for consideration.
LARRY HARTIG, Commissioner, Department of Environmental
Conservation (DEC), introduced the SB 91. He said this issue is
important to the Governor because it is essential for the state
to gain NPDS primacy - that's the right to issue water discharge
permits in the state of Alaska. Currently, EPA does that out of
its offices in Seattle. Primacy in this bill is also very
important to the public and it is one of the top five issues
raised in the transition team's report to the Governor.
COMMISSIONER HARTIG said primacy is important to industries in
the state that require NPDS permits. A series of workshops has
been going on for the last three years in which industry has
gone through the issues it sees with the state gaining primacy
and they are very supportive of it and are even willing to pay
fees just to see it happen.
Primacy is not new, he said; it goes back at least to the
Knowles Administration and perhaps further than that. In 2005
the Alaska legislature directed the DEC to pursue primacy. Since
then a lot of effort has been put into getting it and it the
state has spent about $3.7 million so far in hiring people and
training them, getting the regulations and statutes drafted and
preparing the application to EPA.
COMMISSIONER HARTIG emphasized that this is not major
legislation, but it is critical. It is part of the state's
application for primacy, which also includes the regulations,
the statutes, description of program, and a statement from the
Attorney general that DEC has the necessary authorities. The EPA
looks at that as a whole package as it decides whether to allow
the state primacy or not. If a piece is missing, the whole
process is stopped.
4:26:53 PM
CAMERON LEONARD, Assistant Attorney General, Department of Law,
highlighted the three major and the three lesser changes. He
began with section 1, which he said should be read in
conjunction with section 5 because they both deal with
monitoring, sampling and reporting the DEC can require of
permitees or of facilities outside of the permit. This is
important because conditions that are placed in permits can be
enforced by third parties through what are known as citizen
suits. So, DEC needs to have the same authority that EPA has to
require monitoring either in permits (the part addressed in
section 5) or outside of permits (address in section 1). EPA
raised the concern that the state's law was not as stringent as
the federal law in these sections. So all sections of the bill
are designed to align state law with the federal requirements.
4:28:42 PM
MR. LEONARD said that section 2 was less substantive and 1 of 3
sections that deal with terminology. The federal law uses
somewhat different terminology from state law and speaks of
"discharges of pollutants" whereas Alaska law talks about
"disposal of waste material". EPA's concern again is that the
state's terms be as broad as theirs. So the state's law has been
tweaked to borrow federal terminology.
4:29:39 PM
SENATOR STEVENS asked him to define what the waters of the
United States means in terms of Alaska.
MR. LEONARD replied that the definition of "waters of the U.S."
is dynamic and controversial and is the subject of recent
Supreme Court opinions. He didn't know that there was any
significant difference. But in order to get a program approved
by EPA the state has to essentially have the same scope of
coverage that it has and the easiest way, and maybe the only
way, to do that is to use the same terminology. The definition
used by the EPA is in federal regulation and goes on for one and
a half pages. So, he wouldn't read it at this time.
4:30:56 PM
SENATOR WIELECHOWSKI asked what was deleted at the end of
section 2.
MR. LEONARD replied that redundant language was taken out and it
was making it consistent with federal language. He said the
reason the change is proposed for section 4 is the DEC cannot
exclude activities from the permit requirement any more broadly
than federal law does. Under federal law, persons discharging
domestic sewage into a publicly-owned treatment work (POTW)
don't need a permit. The way it reads now if a person is
discharging into a sewerage system, he doesn't need a permit,
but that term is defined broadly in state law and would include,
for example, conduits that didn't require any treatment at all.
So, this is one area where EPA said that state law is not as
inclusive as federal law.
4:32:49 PM
MR. LEONARD said that section 3 is less substantive and simply
clarifies that the department is the one that decides what form
of authorization to use for a particular activity - again,
responding to an EPA concern.
MR. LEONARD said section 4 is substantive with and deals with
three issues. They are all exclusions to the requirement that
people obtain a permit. He'd talked about the one for domestic
sewerage into POTWs where "surface water of the state" was
changed to "waters of the United States" to make it align with
the federal terminology. The third issue, "(e)(7)", in section 4
has to do with munitions, which are included in the definition
of a pollutant under the Clean Water Act. So if one discharges
munitions at an active range and that discharges into waters of
the Unites States, you need a permit. So, again, the breadth of
state exclusion language had to be cut back.
CHAIR HUGGINS asked if EPA does the permitting for Eielson Air
Force Base and if the state will be taking over permitting on
military ranges.
MR. LEONARD replied that it's all done through EPA right now,
but if this bill passed, the state would take over permitting on
the military ranges.
4:34:41 PM
SENATOR WIELECHOWSKI asked what if the munitions were discharged
into a salmon stream, not waters of the United States.
MR. LEONARD replied if this change were to be made, the
exemption would only apply if it wasn't into waters of the
United States.
SENATOR WIELECHOWSKI asked what kind of pollutants are in
munitions.
MR. LEONARD replied white phosphorus, but he wasn't an expert.
SENATOR WIELECHOWSKI asked if pollutants from munitions were
significant.
MR. LEONARD replied that he couldn't speak to that. It's
included in the definition of pollutant so it has to be covered.
CHAIR HUGGINS added that there is lots of pollution from
munitions.
4:36:13 PM
MR. LEONARD said that section 5 was tied to monitoring
requirements and he characterized sections 6 and 7 as
clarification of terminology that "waste materials" includes
"pollutants" which is what federal law uses.
4:36:46 PM
He said section 8 deals with a substantive issue. He explained
that under the Clean Water Act, negligent violations of the NPDS
can subject the violator to criminal enforcement. Under state
law in contract, DOL could only pursue criminal enforcement if
the violations were done with gross negligence and those are
defined differently in the law - gross negligence being a higher
level of negligence. EPA pointed out the DEC was requiring a
higher state of culpability to support criminal enforcement than
was required under the federal law. So, the bar needed to be
lowered. Section 8 changes current state law that provides for
criminal penalties for violations of DEC statutes and says for
this program only mere negligence would support criminal
sanctions.
4:37:58 PM
CHAIR HUGGINS asked where the provision is that requires
sampling.
MR. LEONARD replied section 1 deals with it outside of the
context of a permit; section 5 deals with the same subject, but
within the discharge permits.
4:38:17 PM
SENATOR WIELECHOWSKI asked how many additional state employees
will be needed to assume primacy.
4:38:39 PM
LYNN KENT, Director, Division of Water, Department of
Environmental Conservation (DEC), answered that the legislature
passed SB 110 in 2005 that directed her to proceed with primacy
and it had a fiscal note. So, implementing this program is
already in DEC's base budget. Hence, this bill has a zero fiscal
note. She clarified that the resources came with SB 110 and the
number of positions that include both the existing program and
the new positions that will implement the program when it's
approved by EPA total 43 positions.
SENATOR WIELECHOWSKI asked how much assuming primacy would cost
the state.
MS. KENT replied that the existing program requires that the
state review all of the EPA permits and certify that they comply
with the state's water quality standards. It is kind of a
parallel program in terms of permitting with EPA. The
incremental cost to get from the program to the NPDS program is
about $1.5 million. That was the amount that was in the SB 110
fiscal note.
4:40:16 PM
SENATOR STEVENS said he understood that industry would pick up a
major share of the cost. He asked if the state assumes primacy,
would industry still pick up a major share of the costs or is
the state assuming more.
MS. KENT replied that the program is designed to rely upon the
existing state policy for the fee it charges for direct
services. So, under SB 361 a number of years ago, DEC charged
for its direct services, which they do for state certifications
of the federal permits today. With NPDS primacy, that same fee
structure will apply, but it will go up a little bit to reflect
the state's additional work load. The fiscal note for SB 110
estimated that at full implementation of primacy, about $300,000
of the $1.5 million would be replaced with fees as opposed to
general funds.
SENATOR STEVENS asked if industry would pick up about 70
percent.
MS. KENT couldn't recall the actual percentage, but it was
somewhat less than 70 percent.
4:41:48 PM
SENATOR STEDMAN asked how many states have primacy and how many
don't.
MS. KENT replied that 45 states already have primacy; Alaska
will make the 46th. She said the Clean Water Act actually
envisioned that states would run the program rather than EPA.
CHAIR HUGGINS asked what the state has learned to date in terms
of industry support.
4:42:56 PM
COMMISSIONER HARTIG replied that more people in industry support
this than ever before. Timing is everything and if you have a
real large project, no matter what the industry is, even one
month's delay is extremely expensive. He said one of the other
primary drivers is getting modifications to permits. He
explained that the permits have a five-year life under the Clean
Water Act. So, any time there is any minor change to a discharge
even the frequency, a modification is required. Under EPA
regulations, you have to go through the same public process as
getting the original permit. So, they are very reluctant to
issue modifications, which holds up businesses, too.
COMMISSIONER HARTIG said the DEC is getting a lot of cooperation
from EPA in turning this program over to the state. During all
the discussions, an awareness has developed about the benefits
of having local people be responsive to the local businesses and
government in writing these permits. So, there has been more of
a consensus and people are becoming more comfortable with the
state's level of competence.
4:46:37 PM
CHAIR HUGGINS asked, assuming this bill passes this session,
when would the state actually take primacy.
COMMISSIONER HARTIG replied that the plan right now is to go
back to the EPA with revisions to the draft application this
fall and they will turn it around and the state will have
primacy by this time next year. There will be a three-year
phase-in.
CHAIR HUGGINS asked if EPA would retain oversight.
COMMISSIONER HARTIG replied yes EPA retains the authority and
duty to review permits. EPA can veto permits.
4:49:15 PM
CHAIR HUGGINS asked if he had concerns about operating in the
military environment in the state.
COMMISSIONER HARTIG replied no; his own experience with DEC is
that the military has worked with them if something comes up.
4:49:53 PM
SENATOR GREEN asked if any changes that are made to the U.S.
code would automatically be picked up by the state.
MR. LEONARD replied yes.
SENATOR GREEN asked if the term "waters of the United States"
has any reference in SB 91 that would lead someone to the
definition in U.S. Code.
MR. LEONARD replied that actually that term is not defined in
the U.S. code; it is defined in the federal regulations and it
is also not defined in this bill; it is defined in the state
regulations that implement this bill. He offered to get those
for her.
SENATOR WIELECHOWSKI asked if all little creeks in Alaska, like
Chester Creek, are considered waters of the United States.
MR. LEONARD replied that generally they are all considered
waters of the U.S., but it is an area of ongoing litigation.
Chester Creek is definitely waters of the U.S. - as long as it
is a tributary.
4:51:44 PM
VICKI PORTWOOD, Executive Officer, Alaska State Homebuilder's
Association, supported SB 91. She explained that right now her
members struggle with having any kind of a relationship with EPA
personnel who come up and get off the plane, inspect the job
sites, fine the company and then get back on the plane and go
back to the Lower 48. There is no one to talk things over with -
to help mitigate their problems and to learn what it is that
they are doing incorrectly.
4:54:17 PM
CHAIR HUGGINS asked if the EPA scenario Ms. Portwood talked
about was common.
COMMISSIONER HARTIG replied that his impression is that it is
fairly common. EPA has one permit writer in the state of Alaska
and he didn't know how many in Seattle, but a majority of the
permits are written out of Seattle and a majority of the
enforcement is out of Seattle as well.
CHAIR HUGGINS asked if Alaska had this authority, what would its
presence look like to industry.
MS. KENT replied that DEC intends to have a compliance and
enforcement that is as stringent and as expansive as EPA's
program. So their goals would mirror EPA's and that is to
inspect every major facility once a year and to inspect the
minor facilities once every five years - so they would
definitely have a field presence. She intends to have staff
located in Anchorage, Fairbanks and Juneau.
4:55:18 PM
SENATOR GREEN moved Amendment 1 as follows: On page 4, line 4,
to delete "listed" and insert "as defined" following
"pollutants" and on page 4, line 10 insert "and(d)" following
"(a)".
MR. LEONARD said that both changes are minor tweaks and really
just reflect the fact that they were running out of time between
concluding their discussions with EPA and getting this bill
introduced. EPA made these suggestions a few days after
discussions were finished.
4:56:37 PM
On the first change the EPA didn't want it to be implied that
only the list was incorporated. The second one only makes sense
if you look at AS 46.03.790 to see what it says now, but the
basic concern underlying this change was section 790(d) that
deals with oil spills. The EPA was concerned that because oil
spills are in violation of the act when there's no permit for
someone to discharge oil into the water, that they have the same
state of mind of negligence to enforce criminal enforcement for
oil spills. Their concerns were addressed by adding "and (d)"
after "a".
SENATOR WIELECHOWSKI asked if this means that an organization
that negligently spilled oil would still potentially be guilty
of a Class A misdemeanor.
MR. LEONARD replied yes. Basically, it means there is a choice
of which enforcement tool to use. You can only get up to a Class
A misdemeanor under new section 790(i).
If the spill is big enough, you can go under the
existing 790(d) and pursue felony charges, but then
you would have to meet the higher standard of criminal
negligence or alternatively, you could do civil
enforcement and seek penalties. So, the state would
have that choice if this bill were to be amended and
passed.
4:59:40 PM
Amendment 1 was adopted without objection.
4:59:55 PM
SENATOR STEDMAN moved to pass from committee SB 91, as amended,
with individual recommendations. There were no objections, and
CSSB 91(RES) moved from committee.
| Document Name | Date/Time | Subjects |
|---|