Legislature(2009 - 2010)BARNES 124
03/16/2010 08:00 AM House COMMUNITY & REGIONAL AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB318 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 318 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 318-UNREGULATED POTABLE WATER SYSTEMS
8:06:51 AM
CO-CHAIR HERRON announced that the only order of business would
be HOUSE BILL NO. 318, "An Act relating to public use of
unregulated water systems."
8:08:10 AM
REPRESENTATIVE HARRIS, speaking as the sponsor of HB 318,
related his understanding that in Salcha there's a regulated
water supply that's used by a few folks. The cost to supply
that water is onerous. He then inquired as to where the
department intends to head in terms of resolving some of these
issues to provide an easier, less cumbersome way to provide good
drinking water for Alaskans who may not live in an area where
they utilize a community water system. He then specifically
inquired as to what the department is going to do to accommodate
the residents in Salcha.
8:10:08 AM
KRISTIN RYAN, Director, Division of Environmental Health,
Department of Environmental Conservation (DEC), stated that DEC
tries to do what it can to help all water systems. There are
about 1,600 federally regulated water systems in Alaska. Of
those, 295 are extremely small water systems; these are systems
that are the size of Salcha or smaller. The department tries to
provide as much technical assistance and support as possible to
help these systems stay in or come into compliance. However,
the department is restricted in many ways by the mandatory
federal definition of a water system. She emphasized that the
state has no additional requirements beyond what the
Environmental Protection Agency (EPA) mandates. Therefore, the
department doesn't have much ground to maneuver other than to
provide as much technical assistance as possible to help the
water system stay in or come into compliance.
MS. RYAN informed the committee that the current requirements of
water systems are based on someone becoming sick or dying,
albeit it may be from somewhere else in the U.S. Therefore,
there's a public health reason for the requirements. For a
ground water system, the requirements aren't that difficult.
However, the EPA is reviewing the potential problems with ground
water systems. At this point, Salcha only needs to test, it
doesn't have to do any treatments if there's nothing in the
water. Ms. Ryan said that she doesn't believe it's unreasonable
to require a system to test the water to ensure that the water
doesn't contain anything dangerous. The [contaminants] that are
required to be tested are outlined and there's a clear public
health reason for the testing.
MS. RYAN then related that DEC's plan for the future is to
provide as much support as possible to water systems so that
they can provide safe water and stay in compliance with the EPA.
The department has developed some methods that have been working
well. For a water system that is having difficulty, the
department utilizes an intensive intervention process in which
the department, some nonprofits, other funding agencies, and the
USDA intensively work with the water system for a week. The
operators, whether it's the local government or another entity,
are trained to ensure the best possible setup. In this process,
follow up occurs to ensure the water system remains on track.
Ms. Ryan likened this to a mental health model.
8:14:48 AM
REPRESENTATIVE HARRIS requested that Ms. Ryan describe the
efforts or direction the department gave Salcha regarding its
water system or, he asked, were the residents of Salcha merely
notified that the water system was out of compliance and could
no longer be used.
MS. RYAN related her belief that the committee packet includes
quite a bit of communication between the Salcha water system
representative and the department. The Salcha community has
been a water system since the 1990s and the first record of
Salcha in DEC's database is 1990. Therefore, the department has
been working with Salcha for 20 years. Last year Salcha placed
a notice in the paper advertising water, which is when the
department contacted Salcha to ask if things had changed and
whether the water system was serving more people. Salcha was
informed that if it was serving more people, it would be a
federally regulated system not just a state regulated system.
The aforementioned, she opined, is the dialogue that has
resulted in the discussion before the committee today. Ms. Ryan
related her belief that Salcha would need to meet certain
requirements, which the department likely related, in order to
be an approved federal water system and serve more than 25
people. For instance, Salcha would have to hire an engineer to
review the well in order to ensure that the well was drilled
properly and encased properly so that contamination doesn't
enter the wellhead at the source. A second step about which
Salcha would've been told was testing. The federal government
requires testing for more [contaminants] than the state
requires. Again, she acknowledged that the aforementioned would
have a cost. Ms. Ryan specified that the federal government
requires testing for inorganic or volatile organic compounds,
total coliforms, lead and copper, radio nuclei, nitrates, and
arsenic. The aforementioned testing would cost several hundred
dollars and the results would be available within approximately
a month. The department's goal for Salcha would be for it to do
the aforementioned to ensure that the water is safe and can
serve the entire community. However, she recalled that Salcha
wasn't sure it wanted to go that route, which lead to the
conversations with the department relating that if Salcha
chooses not to follow the [federal requirements], then it needed
to limit the number of people using the well. After some time,
Salcha likely decided it wasn't interested in pursuing the
aforementioned route, and thus DEC communicated the need to
reduce the number of people accessing the water system in order
to avoid crossing the federal threshold.
8:20:29 AM
REPRESENTATIVE HARRIS related his understanding that once a
water system serves more than 25 people, it falls under the
federal EPA regulations for which the state has primacy. The
department must enforce the federal EPA regulations in order to
continue to receive federal funds. He asked if there is any
timeframe in which the water systems can be provided while
coming into compliance or is there any help they can be provided
in order to help them come into compliance with the federal
requirements.
MS. RYAN answered that there is no set timeframe. Once DEC
learns of a system that meets the federal definition, the
department begins a conversation regarding what it will take for
the water system to comply with the federal requirements or
reduce the population being served. She acknowledged that it
takes time to ensure that the water is safe. For example, if
Salcha decided it wanted to become a federally regulated water
system and performed the testing, the department would be fine
waiting for the engineer reviews. As long as the water is shown
to be safe by testing, DEC would allow the water system to serve
the community while continuing to get the engineering performed.
Therefore, there is some flexibility if DEC knows a water system
wants to be a federal public water system and works with the
department to achieve what is necessary. However, Salcha chose
early on that it didn't want to go that route, and therefore had
to reduce the number of people it served.
8:23:12 AM
REPRESENTATIVE HARRIS asked if DEC offered help to Salcha and it
was turned down. He inquired as to what led to the situation
that Salcha is in today.
MS. RYAN responded that DEC can only provide technical
assistance, such as what laboratory or engineers to contact.
She opined that she didn't know what other assistance DEC could
provide Salcha because the stage it is at isn't that difficult.
Salcha simply needs to go to a laboratory to run some samples
and hire an engineer to review the well casing. Ms. Ryan
surmised that Representative Harris may be asking about
variances, which have been mentioned at early hearings. She
acknowledged that Pete Fellman, Staff to Representative Harris,
doesn't believe DEC has used all of its options to give the
community a variance to comply. However, that's not the case
because a variance can only be used for specific rules, as
defined in the federal law. A variance can't be used for water
system testing or the initial engineering review. Variances can
be used if, for instance, testing returns show a level of
arsenic above the minimum level but not dangerously high. The
variance in the aforementioned case can be used to provide the
community the time and the money to determine how to come into
compliance with arsenic. By federal law, DEC can't issue a
variance for a water system that doesn't want to perform testing
or have an engineer review the system. Ms. Ryan opined that DEC
is providing all the technical assistance it can to Salcha and
reiterated that she didn't know what more assistance she could
provide. Furthermore, because the cost for the initial work is
so low, $15,000, she said she wasn't sure Salcha would qualify
for funding from the other branch in DEC that provides funding
for water systems. The funding, she recalled, requires a
minimum level of $100,000 for a grant or loan. In further
response to Representative Harris, Ms. Ryan reminded the
committee that there are 295 water systems in the state that are
the size of Salcha or smaller. She was sure that it was a
struggle for some of those water systems, of which three are
fairgrounds that provide water to the local community, to meet
the federal EPA requirements. She further reminded the
committee that, to a degree, DEC has its hands tied by the
federal law.
8:27:07 AM
CO-CHAIR HERRON asked whether DEC advised Salcha in writing that
it may qualify for a variance if it [met a couple of the
requirements].
MS. RYAN replied not to her knowledge. She reiterated that
unless Salcha was further along in the process, such as needing
to treat a contaminant in the water that isn't considered life-
threatening, it wouldn't qualify for a variance. She said she
couldn't believe that DEC would've told Salcha there is an
option for a variance because it's not at that point.
CO-CHAIR HERRON asked if DEC told Salcha that if it did A, B,
and C, it would be qualify for loans or financial assistance.
MS. RYAN responded, "Probably not." She reiterated that the
community couldn't obtain a loan for the initial assessment of
the water as the cost is too low.
8:29:18 AM
CO-CHAIR HERRON asked if Salcha has the ability to be a
disadvantaged community, in terms of state statute.
MS. RYAN answered that she wasn't sure and thus would have to
review that. However, she offered a guess that Salcha wouldn't
be a disadvantaged community.
8:29:53 AM
REPRESENTATIVE CISSNA characterized this as an important
discussion. She informed the committee that the country has s
99 percent safe water standard, while in Alaska it's somewhere
in the 70th percentile. Moreover, recent research has shown
that there's an enormous cost when a water system drops below
the safe water standards. Such a situation is extremely
dangerous, particularly to children. She then highlighted that
she's not hearing any plan between Salcha, DEC, and the federal
government that addresses what she referred to as a "moral
constitutional requirement." She characterized not paying
attention to safety issues as evil. Representative Cissna asked
if the interaction with Salcha has been purely via e-mail and
letters or has anyone actually visited the community and spoke
with Salcha residents.
MS. RYAN related her understanding that DEC staff did visit with
a Salcha fairground representative on several occasions.
However, if they don't want to be a water system, then DEC's
hands are tied to a degree. A water system that serves more
than 25 people has to comply with the federal requirements.
8:33:26 AM
REPRESENTATIVE KELLER asked if the 25 persons using the water
system refers to 25 persons using it per day or is it the same
25 persons using it.
MS. RYAN specified that it's averaged; 25 people per day over a
six-month period. Furthermore, if an individual takes water
home to four others, then those folks are counted as well. As
she recalled, the Salcha water system was serving well over 25
people. If the number of individuals using a water system is
"on the line," the department tends to be flexible, she related.
8:34:40 AM
CO-CHAIR HERRON explained that he had requested Representative
Harris review alternative approaches to the situation, which
resulted in a committee substitute (CS) labeled 26-LS1357\E,
Bullard, 3/15/10.
8:35:35 AM
PETE FELLMAN, Staff, Representative John Harris, Alaska State
Legislature, explained that Version E clarifies in statute some
of the possible solutions that seem to be written into the Code
of Federal Regulations (C.F.R.). When the C.F.R. was updated in
1996, the updates addressed unfunded mandates as well as
assistance to small communities and disadvantaged communities.
The updated C.F.R. provided a means for the state to exercise
flexibility in the way that it addresses small water systems in
an area in which the community is disadvantaged or doesn't have
the ability to obtain water. The hope with Version E is to
specify in statute that technical assistance, water supplies,
possible variances and guidance, as well as loans and grants can
be provided. Mr. Fellman emphasized that the federal law does
provide ways and means to help small water systems come into
compliance with federal requirements.
MR. FELLMAN then informed the committee that the well in Salcha
was drilled sometime after 2003. He noted that he has
information from 2005 when folks first started using the well.
The Salcha well has been tested and has never had a problem with
safety, and therefore that's not the issue. He opined that the
issue really revolves around the fact that less than 25 people a
day were using the Salcha well. When the number of people using
the well was verified, the community was told the [requirement
to have a well that's not covered by the federal government] was
less than 25 people per month not per day. He characterized
threshold of users as a moving target and noted that he has seen
three different manners of language regarding the threshold of
25 users of a well. However, C.F.R. 40.41.2 clearly says "at
least 50 service connections or regularly serves an average of
at least 25 individuals daily". Therefore, there were less than
25 people a day using the Salcha water system and they were
still required to limit use. With regard to the engineering and
variance language, it is lengthy and extensive and there are
costs. Mr. Fellman reminded the committee that the Salcha water
system is maintained voluntarily through community support and
the earlier projected cost of $15,000 to meet the requirements
would be fairly significant. In conclusion, Mr. Fellman
expressed hope that Version E will provide some clarity with
regard to what DEC can do.
8:41:23 AM
CO-CHAIR HERRON informed the committee that it's the intent of
the co-chairs not to adopt Version E in order to provide time
for everyone to review it.
8:41:41 AM
REPRESENTATIVE CISSNA identified a pivotal matter in the Salcha
situation to be the public advertisement of available [safe]
water. She then opined that perhaps one of the things the state
hasn't done a good enough job of is understanding the importance
of clean water. She pointed out that the lack of clean water
contributes to the state's rising health care costs. [With
regard to the Salcha situation], Representative Cissna related
her understanding that the required testing that is verifiable
hasn't been done.
MR. FELLMAN noted that he has copies of the last test performed
on the Salcha water system. He further noted his understanding
that the Salcha water system has been tested every year. The
testing was performed in a state laboratory and the results were
free of any coliform or any possible contaminants. With regard
to the "advertising" of the Salcha water system, Mr. Fellman
clarified that there was a newspaper article about the Salcha
fairgrounds and the Salcha Fairground Association and the
article mentioned that it has a well that provides water for the
community.
8:44:51 AM
REPRESENTATIVE CISSNA surmised that in the case of Salcha, folks
believe they have done what's necessary. Therefore, she
surmised that they don't seem to understand the law well enough.
MR. FELLMAN opined that it's highly unlikely that folks will
drive to Salcha for water. Therefore, it wouldn't even make
sense to advertise coming to Salcha for water.
REPRESENTATIVE CISSNA agreed, but returned to the fact that
there are laws that often people don't understand. She then
inquired as to Mr. Fellman's view of Version E.
MR. FELLMAN said that Version E clarifies and allows average
people to review statute rather than having to also go to the
C.F.R. in order to understand the process. Furthermore, Version
E may help DEC be clearer with communities and maintain an
attitude in which the community and the department work together
rather than the department being in the role of an enforcer.
8:47:31 AM
REPRESENTATIVE KELLER related his understanding that Salcha is
currently providing water under certified letter that it will
serve less than 25 residents without specifying whether that's
25 residents per day or per month.
MR. FELLMAN specified that the aforementioned is one of the
problems and requires clarification.
8:49:12 AM
REPRESENTATIVE HARRIS, referring to Section 1 of Version E,
asked if a public water system used by 25 people or more would
be a regulated public water system.
8:49:37 AM
MARIT CARLSON-VAN DORT, Legislative Liaison, Office of the
Commissioner, Department of Environmental Conservation,
confirmed that such a public water system would be a regulated
public water system under federal law. In further response to
Representative Harris, related her belief that it would also be
a regulated public water system per statute.
8:49:58 AM
REPRESENTATIVE HARRIS questioned then whether inserting the
language "per day" at the end of line 6 on page 1 of Version E
would provide clarity.
MS. CARLSON-VAN DORT replied yes, adding that using the language
"25 people per day averaged over six months" would conform with
federal language.
8:50:31 AM
REPRESENTATIVE HARRIS expressed concern with the language in
Section 1(a)(2) that specifies the department shall provide
communities with financial assistance per AS 46.03.030(b) or
46.03.036(b). He inquired as to what the aforementioned
statutes refer.
MS. CARLSON-VAN DORT, upon referring to the statute, related her
understanding that those statutes outline the municipal matching
grant program through the Division of Water. She related her
further understanding that those statutes refer to the program
that requires a minimum threshold for the amount of grant or
loan funds the department would consider. However, she offered
to review it further and provide the committee with a definite
answer.
8:52:50 AM
CO-CHAIR MUNOZ recalled Ms. Ryan's earlier testimony relating
that the department has financial assistance available for
larger projects. She then inquired as to whether DEC is able to
provide assistance to communities with smaller financial
requests, such as would be the case for Salcha.
MS. RYAN said that she isn't sure because it's handled in a
different program within the Division of Water. She related
that she has been told that there's a minimum for the loan. Ms.
Ryan highlighted that loans are easier to obtain, but have a
minimum amount whereas grants are more difficult to obtain and
the grantee must illustrate disadvantaged qualifications. The
Division of Water, she said, told her that Salcha wouldn't meet
the requirements for a grant because they don't fit into the
definition of a disadvantaged community. Furthermore, Salcha
would likely not be able to obtain a loan because loans are only
provided for larger amounts. She offered to double check with
the Division of Water.
8:54:20 AM
CO-CHAIR MUNOZ, referring to the correspondence between the
Salcha Fair Association representative and the department staff,
pointed out that department staff used a threatening tone.
Therefore, she requested that Ms. Ryan review that
correspondence. She encouraged the department to improve the
[tone] of its interactions with communities, most of which
aren't familiar with the law.
MS. RYAN agreed to do so.
8:56:01 AM
REPRESENTATIVE CISSNA suggested that a water system that's
located in a community with over 25 people and accessible to the
entire community should be defined in regulation. She then
asked if there is any other public way to obtain water in
Salcha.
MS. RYAN pointed out that the regulations include a clear
definition [of a public water system] that mimics the federal
definition. The state's definition refers to smaller water
systems because the state has water systems that don't meet the
federal definition that the state regulates, which is the
category in which Salcha is now. For the state water system,
the water system must be smaller than a water system outlined in
the federal regulations but larger than a water system serving a
duplex. She further clarified that those with a private well
for a home or duplex don't interact with DEC at all. However,
if the well serves two duplexes, it becomes federally regulated,
which is the category in which Salcha is now. She offered her
understanding that the belief is that once a system serves 25
people, they could pay a certain fee in order to perform the
requirements to ensure safe water.
[HB 318 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSHB 318 (Version E).PDF |
HCRA 3/16/2010 8:00:00 AM |
HB 318 |