Legislature(1997 - 1998)

02/20/1997 01:43 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  HOUSE BILL NO. 51                                                            
                                                                               
       "An  Act relating  to the  Department of  Environmental                 
                                                                               
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       Conservation."                                                          
                                                                               
  REPRESENTATIVE  NORMAN  ROKEBERG  noted  that  the  Resource                 
  Development Council supported HB 342 and HB 51.  He observed                 
  that  HB 51  is similar to  HB 342  which was passed  by the                 
  Nineteenth  Alaska  State  Legislature  and  vetoed  by  the                 
  Governor.   He noted  that provisions  relating to  Arsenic,                 
  mixing   zones,   and   statutory   authority   for    state                 
  administration of  the federal National  Pollutant Discharge                 
  Elimination System (NPDES) program differ  in the two bills.                 
  He  stated that  HB  51 is  a regulatory  reform  bill.   He                 
  maintained that a number of companies and  industries in the                 
  State  have  experienced  substantial   problems  under  the                 
  current permit process.   He observed that  private business                 
  is willing  to contribute  to the  cost associated  with the                 
  issuance of permits by providing outside expertise and data.                 
                                                                               
                                                                               
  Representative Rokeberg referred to  the findings and intent                 
  section.    He quoted  section  1:   "The  people  of Alaska                 
  express their will  through the legislature and  regulations                 
  implement legislative action."  He alleged that "many of the                 
  people that come  out for public hearings  are "professional                 
  nea-sayers", that have nothing else to  do, and by and large                 
  don't truly represent the will of the people of the State of                 
  Alaska  and  that  is  why  we  have  a  legislature."    He                 
  maintained that it  is the  legislature that determines  the                 
  policy   of   state  government,   not   the  administrative                 
  bureaucracy that implements the laws.                                        
                                                                               
  Representative Rokeberg  reviewed HB 51.  He  noted that the                 
  legislation   defines   water   discharge   and   background                 
  conditions; requires the  State to speak to  mixing zones in                 
  regulation;  and clarifies that new state regulations cannot                 
  be  more  restrictive    than   federal  EPA  water  quality                 
  standards.  New  regulations must  conform to EPA  standards                 
  when those standards  are made  less restrictive and/or  are                 
  eliminated.  He  observed that if federal  EPA standards are                 
  modified there is no mechanism to modify corresponding state                 
  regulations.   The legislation would require  the Department                 
  of Environmental  Conservation  to  go  through  the  entire                 
  Administrative Procedures Act  to lower or eliminate  Alaska                 
  water quality  standards if federal standards are eliminated                 
  or  reduced.   The  legislation  requires the  Department of                 
  Environmental  Conservation to  comply  with this  provision                 
  during their federally mandated triennial review period.  If                 
  a state standard does not conform to its federal counterpart                 
  the Department would  implement the process contained  in AS                 
  46.03.087.  He maintained that the intent is not to create a                 
  burden  on the  Department.   The Department is  required to                 
  take action  on  eliminated or  reduced federal  regulations                 
  within  90  days.   The  state  regulation  must conform  to                 
                                                                               
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  federal  regulation  or   go  through  the  process   in  AS                 
  46.03.087.  He  observed that the Department  will be exempt                 
  from  the  petitioning   provisions  of  the  Administrative                 
  Procedures Act.  He  added that anyone can request  a review                 
  of a regulation.  Review must take place within 30 days.                     
                                                                               
  Representative   Rokeberg   maintained   that   section   AS                 
  446.03.087  allows state  regulations to  be  more stringent                 
  than federal  regulations.   He stressed  that stable  water                 
  quality standards are important  to investment in interstate                 
  commerce,  particularly  in  the  minerals  industry.     He                 
  maintained that  this  reflects the  will  of the  House  in                 
  regards to state policy.  He discussed the hearing  process.                 
  He  demonstrated  that HB  342  received  extensive hearings                 
  during the Nineteenth Alaska State  Legislature.  He pointed                 
  out that the  legislation will  adopt the volumetric  Imhoff                 
  cone  method   for  measurement  of  settleable   solids  as                 
  recommended by the Department of Environmental Conservation.                 
                                                                               
  Representative Davies questioned what the  bill is trying to                 
  fix or address.   Representative  Rokeberg replied that  the                 
  legislation is  an important symbol, that the  State is open                 
  for  business.   It  also shows  who is  going to  set state                 
  policy.  He emphasized that  industry has expressed interest                 
  and support for this type of legislation.                                    
                                                                               
  Representative  Grussendorf referred to page 4, line 12.  He                 
  asked what is  expected of  the Department of  Environmental                 
  Conservation in  regards to  the requirement  for a  written                 
  finding to assess the economic and technological feasibility                 
  of a proposal.                                                               
  Representative Rokeberg  asserted  that  the  Department  of                 
  Environmental Conservation has  adequate personnel to comply                 
  with the provision.  The intent  is that the Department take                 
  on these elements when drafting regulations.  He stated that                 
  many of the requirements of the EPA do not have a  technical                 
  method of  measurement  to meet  the published  quantitative                 
  number required.  He emphasized that "consider" was added at                 
  the request of the Department.                                               
                                                                               
  Representative Grussendorf pointed out that the  legislation                 
  requires  the Department  of  Environmental Conservation  to                 
  "consider and prepare" a written finding.   He questioned if                 
  there  will be  a  budgetary commitment  to assure  that the                 
  agency  possess the  necessary  expertise  to implement  the                 
  provisions of HB 51. Representative Rokeberg stated that the                 
  Department  of Environmental  Conservation  already has  the                 
  technical ability to implement the provisions.                               
                                                                               
  Representative   Grussendorf   stressed  that   the  written                 
  findings that  the Department of  Environmental Conservation                 
  is  required  to  prepare  must  consider the  economic  and                 
                                                                               
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  technological  feasibility.    He  observed  that  they  are                 
  expected  to  accomplish  this  in 90  days  or  a  mutually                 
  agreeable time.  Representative  Rokeberg clarified that the                 
  Department only  has to  enter  into the  process within  90                 
  days.  He agreed  that the Department should not be asked to                 
  do  something  that  they  do not  have  the  capability  of                 
  accomplishing.  He added that the scope of the required work                 
  does not demand full economic  analysis from fully qualified                 
  Ph. D.'s.   He stated  that the Department  should have  the                 
  ability to make technological  assessments.  He acknowledged                 
  that   a  consultant   should   be  retained   for  discreet                 
  information or areas the Department is lacking in expertise.                 
  He stated  that there  would be  value for  a modest  fiscal                 
  note.    He  observed that  there  will  be  some additional                 
  burdens and regulatory undertakings.                                         
                                                                               
  Representative Grussendorf summarized that staff do not have                 
  to  be experts or  Ph. D.'s, but  if an  applicant is turned                 
  down and challenges the feasibility or economic study by the                 
  Department, then  nothing is  accomplished.   Representative                 
  Rokeberg replied, "not if the applicant's right."                            
                                                                               
  SCOTT  THORSON,  PRESIDENT,  RESOURCE   DEVELOPMENT  COUNCIL                 
  testified  in  support  of HB  51.    He  asserted that  the                 
  legislation  solves  a  number of  problems  that  have gone                 
  unaddressed for a number  of years.  He stressed  that water                 
  quality  issues  are  key to  promoting  different  types of                 
  resource  development in the State.   He maintained that the                 
  Department of Environmental Conservation has been  unwilling                 
  or unable to  address a lot  of the concerns.   He  observed                 
  that, under current  law, a mining  operation would have  to                 
  replace  turbid, glacier  type  water with  drinking quality                 
  water.    He  noted  that  the  legislation  addresses  this                 
  concern.  He stressed that  the Resource Development Council                 
  is in strong support of the legislation.                                     
                                                                               
  BECKY GAYE, EXECUTIVE DIRECTOR, RESOURCE DEVELOPMENT COUNCIL                 
  spoke in support  of HB 51.   She stated that  HB 342 was  a                 
  good bill.   She added  that HB  51 is a  better bill.   She                 
  stressed   that   congruence  between   the   executive  and                 
  administrative  branches is  important  on critical  choices                 
  facing the State.  She maintained that the focus needs to be                 
  on permits and the  ability to do business  while protecting                 
  state waters  for all users.   She stressed  that congruence                 
  will  reduce  frivolous  lawsuits.   She  asserted  that the                 
  legislation will minimize wasted efforts.                                    
                                                                               
  Ms. Gaye noted that  there is no state adjustment  policy in                 
  regards to the  lowering or removal  of a federal  standard.                 
  There  is  a  federal  law  that addresses  compliance  with                 
  stricter  federal standards.   She  spoke in  support of  an                 
  automatic requirement to adjust state standards when federal                 
                                                                               
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  changes  result in less strict  standards or the deletion of                 
  federal mandates.   She maintained  that HB 51  requires the                 
  Department    of    Environmental   Conservation    to   set                 
  scientifically  supportable,  detectable standards  that are                 
  consistent with existing federal standards and realistic for                 
  Alaska.  She  stressed that where  possible HB 51 gives  the                 
  Department of Environmental Conservation statutory authority                 
  and backing for efforts  already underway, using  background                 
  conditions and mixing zones.  It specifically allows for the                 
  State to  have stricter  standards than  federally required.                 
  She maintained that HB 51:                                                   
                                                                               
       *    Provides  an  efficient change  mechanism  for the                 
            Department  to  respond  to  changes  in   federal                 
            regulations;                                                       
                                                                               
       *    Allows a  definitive process (similar to,  but not                 
            as  rigorous as  the  air program)  for evaluating                 
            agency conclusions which result in state standards                 
            being set stricter than federal requirements;                      
                                                                               
       *    Provides  an  allowance  for  discharge waters  to                 
            match the quality of the receiving waters; and                     
                                                                               
       *    Provides  a  statutory mandate  that  mixing zones                 
            will be provided for by regulation.                                
                                                                               
  Ms. Gaye referred to page 2, line  1.  She observed that the                 
  Department of Environmental Conservation is given  statutory                 
  guidance  to  continue their  investigation  of NPDES.   She                 
  expressed concern with state implementation of this program.                 
                                                                               
                                                                               
  Ms. Gaye observed that reference to  the Clean Water Act was                 
  added  on page 2, line 10.   She acknowledged that the Clean                 
  Water Act protects  more than the requirements  contained in                 
  section 3(1).                                                                
                                                                               
  Ms.  Gaye  spoke  in  support  of  the  use  of  "background                 
  conditions" as contained in the bill.                                        
                                                                               
  Ms. Gaye referred to  page 1, line 29.   She maintained that                 
  subsection  (b)  assures  that  federal  standards  will  be                 
  exceeded  for  shellfish  growing areas.    She  agreed that                 
  shellfish beds should have a higher standard for human fecal                 
  coliform.  She noted that the  Department "may adopt a water                 
  quality  standard  or  other  regulation  related  to  water                 
  quality that  is more  restrictive  then applicable  federal                 
  water quality criteria  or regulations only after  following                 
  the procedures in AS 46.03.087(b).                                           
                                                                               
  Ms. Gaye stressed  that if  they are not  in agreement  with                 
                                                                               
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  what the Department of  Environmental Conservation is  doing                 
  then  the  Resource Development  Council  will fight  in the                 
  public process and  court.  The  written request is only  in                 
  response  to   incorporation  of  a   future  reduction   or                 
  elimination  in  water quality.    She acknowledged  that it                 
  would  be  a  lot of  work  for  the  Department to  compare                 
  existing  state  standards   to  federal  standards.     She                 
  maintained  that there should not be  an additional cost for                 
  review of the standards during the triennial review process.                 
  She  emphasized  that   they  want  to  have   a  scientific                 
  explanation for stricter standards.                                          
                                                                               
  Ms. Gaye referred  to page 4, lines  10 - 13.   She observed                 
  that  the  Department  of  Environmental  Conservation   has                 
  included  economic considerations  in the  regulatory arena.                 
  She emphasized that they want the  Department to make a case                 
  for stricter regulations based on scientific methodology.                    
                                                                               
  Co-Chair Therriault discussed  the use of  "may" on page  2,                 
  line 31.  He  maintained that the power of  the commissioner                 
  to  have  a  higher  standard,  without  going  through  the                 
  process, is retained.                                                        
                                                                               
  Representative Davies questioned the  status of mixing zones                 
  in regulations.  Ms. Gaye stated  that there are regulations                 
  regarding mixing zones.  She observed that the Department of                 
  Environmental  Conservation is working to change mixing zone                 
  regulations.    She maintained  that  there is  no statutory                 
  authority in state  law.  She asserted  that the Legislature                 
  should  give the  Department  of Environmental  Conservation                 
  statutory authority for mixing zones.                                        
                                                                               
  In response to a question by Representative Grussendorf, Ms.                 
  Gaye  noted  that NPDES  is a  federal  program that  can be                 
  assumed at the state primacy level.                                          
                                                                               
  (Tape Change, HFC 97-34, Side 2)                                             
                                                                               
  Ms. Gaye stated that they would "much rather have everything                 
  here  than  in  region  ten."    Representative  Grussendorf                 
  pointed out that  state administration of the  NPDES program                 
  would result in  a large fiscal  note.  Ms. Gaye  emphasized                 
  the need for debate.                                                         
                                                                               
  Representative Davies referred  to a letter from the  EPA to                 
  Michele  Brown,  Commissioner,  Department of  Environmental                 
  Conservation, dated 2/14/97 (copy on file).  Ms. Gaye stated                 
  that she discussed the issue with someone in the Division of                 
  Air and  Water.   She stated  that she  would be willing  to                 
  adjust the legislation based  on issues raised in the  EPA's                 
  letter, "to the extent that we agreed with them."                            
                                                                               
                                                                               
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  Representative  Davis noted  that there  is a  large  fee to                 
  applicants of NPDES permits.   He asked to what  degree they                 
  cover the cost.                                                              
                                                                               
  Ms.  Gaye  discussed   a  letter  from  the   Department  of                 
  Environmental Conservation,  to the House  Finance Committee                 
  Co-Chairs, dated 2/20/97  (copy on  file).   She quoted  the                 
  Department of Environmental Conservation as saying on page 3                 
  that:   "As a  result, this 'special'  procedure would  come                 
  into play  nearly every  time the  state proposed any  water                 
  quality  standard  or  discharge  limit,  including   mixing                 
  zones."  She  asserted that the Department  of Environmental                 
  Conservation is wrong  in their assessment.   She maintained                 
  that  the  procedure  would only  come  into  play  if state                 
  regulation is stricter than federal regulations, if there is                 
  a law that doesn't exist, or  if federal regulations change.                 
  She  referred  to  a  "closed  door" meeting  with  Governor                 
  Knowles that occurred two and a half years ago regarding the                 
  State's EPA petition on mixing zones.  She noted that mixing                 
  zone regulations have not been completed.                                    
                                                                               
  NEIL   PLESTED,   NORTHERN   ALASKA  ENVIRONMENTAL   CENTER,                 
  ANCHORAGE  testified  via  the  teleconference  network   in                 
  opposition to HB 51.  He  maintained that the legislation is                 
  "blatantly destructive to the health and welfare concerns of                 
  Alaskans."    He asserted  that  the legislation  will lower                 
  water quality in Alaska to  the lowest standards nationwide.                 
  He  alleged that  the bill  will cripple  the  Department of                 
  Environmental Conservation's review process.  He  maintained                 
  that  water  quality  should  not  be  equated  to  economic                 
  feasibility of  any entity.  He stressed  that water quality                 
  standards should not be sacrificed at any price.                             
                                                                               
  DAN  WINN,  COMMERCIAL FISHERMAN,  HOMER  testified via  the                 
  teleconference network in opposition to HB 51.   He stressed                 
  the importance of clean  water to the fishing industry.   He                 
  observed  that  the  Washington  salmon  industry  has  been                 
  adversely  affected  by  water  quality.   He  commented  on                 
  remarks  by Representative  Rokeberg  concerning the  public                 
  process.                                                                     
                                                                               
  DENNIS RANDA, ALASKA CHAIRMAN, TROUT UNLIMITED testified via                 
  the  teleconference  network in  opposition  to HB  51.   He                 
  provided members with written testimony (copy on file).   He                 
  emphasized the  importance of  clean water.   He  maintained                 
  that  drinking  water  and  fish  habitat standards  do  not                 
  equate.    He  expressed  concern with  the  impact  of  the                 
  legislation on the Department of Environmental Conservation.                 
  He maintained that  mixing zones establish an  exclusive use                 
  of the water  by a single user.  He expressed concern that a                 
  single user  group has  spoken directly  to the  Legislature                 
  without  input  from the  other  side.   He  maintained that                 
                                                                               
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  "there has not  been a salmon  stream anywhere in the  world                 
  that  has  withstood  the  urbanization  of man,  along  its                 
  banks."  He  maintained that  turbidity standards should  be                 
  addressed with a  variance.   He observed that  constituents                 
  trust their representatives to take care of their resources.                 
  He suggested  that changes  occurring in  the Department  of                 
  Environmental  Conservation  address  some  of the  concerns                 
  incorporated in the legislation.                                             
                                                                               
  JEFF PARKER, ALASKA SPORT  FISHING ASSOCIATION testified via                 
  the teleconference network.   He noted that  the Association                 
  passed a resolution  in opposition to  HB 51.  He  disagreed                 
  with  Ms.  Gaye's  comments  regarding  application  of  the                 
  special procedures provisions.   He  referred to  subsection                 
  (c), page 3.   He  stressed that AS  46.03.085 utilizes  the                 
  special procedures contained in AS 46.03.087.  He maintained                 
  that a proposal  to reduce  state regulations below  federal                 
  water   quality  standards   would   activate  the   special                 
  procedures.    He  asserted that  the  legislation  will not                 
  achieve its goal.   He maintained that  the legislation will                 
  add costs.  He asserted that the legislation will not result                 
  in  stable  state   regulations.    He  stressed   that  the                 
  legislation will  result in frequent,  repetitive, multiple,                 
  and  over  lapping  efforts  by  industry  to  petition  for                 
  regulatory  changes  that  will  have  to be  adopted.    He                 
  acknowledged   that  the   legislation   is  symbolic,   but                 
  emphasized that "symbols do not create good law."                            
                                                                               
  PATTY GINGSBURG,  REGIONAL  CITIZENS'  ADVISORY  COUNCIL  OF                 
  PRINCE WILLIAM SOUND (RCAC) testified via the teleconference                 
  network in opposition to  HB 51.  She maintained  that HB 51                 
  moves the emphasis away  from prevention, to a wait  and see                 
  approach.   She asserted  that the  legislation puts  a much                 
  higher priority on some types of  jobs.  She maintained that                 
  it relegates the fishing and tourism industries to a distant                 
  second.   "Under this  bill, state regulators  would have to                 
  prove fish are dying  in order to set standards  higher than                 
  the federal  minimum."   She asserted  that the  legislation                 
  takes  away the  Department's  flexibility to  address site-                 
  specific needs and issues.   Representative Kelly maintained                 
  that Ms. Ginsburg's comments were exaggerated.                               
                                                                               
  Ms.   Ginsburg   expressed    concern   regarding    aqueous                 
  hydrocarbons.  She noted  that there is no federal  limit on                 
  total aqueous hydrocarbons.  She added that it is imperative                 
  that  the  Department  of  Environmental  Conservation  have                 
  adequate funding for administration  of the federal National                 
  Pollutant Discharge Elimination  System, if the  State takes                 
  over the program.   She urged the Committee to reject HB 51.                 
                                                                               
                                                                               
  In  response  to  a question  by  Representative  Kelly, Ms.                 
                                                                               
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  Ginsburg observed that current statutes allow the Department                 
  of Environmental Conservation to regulate pollutants if they                 
  could  have a detrimental  impact.  She  understood that the                 
  legislation  would  require  that  the  Department  prove  a                 
  deleterious effect  is actually occurring before  a standard                 
  could be changed.                                                            
                                                                               
  STAN  STEPHANS,  VALDEZ  testified  via  the  teleconference                 
  network in opposition to HB 51.  He stated that HB 51 brings                 
  confusion  to  the  process   of  developing  water  quality                 
  standards.     He  maintained that  the  current process  is                 
  effective  in  bringing  agencies,  industry,  and  citizens                 
  together  to  resolve  issues.    He  asserted  that  no one                 
  business  or  combination of  businesses  have the  right to                 
  destroy  another  for  jobs  or  economic development.    He                 
  alleged that  the  legislation could  destroy fisheries  and                 
  tourism.                                                                     
                                                                               
  CRAIG   MCCORMICK,   HAINES   CHAPTER,    UNITED   SOUTHEAST                 
  GILLNETTERS  ASSOCIATION  testified  via the  teleconference                 
  network  in  opposition  to  HB  51.     He  emphasized  the                 
  importance of the fishing industry and clean water.                          
                                                                               
  MIKE VANNOTE, COMMERCIAL FISHERMAN, HAINES testified via the                 
  teleconference network in opposition to HB  51.  He observed                 
  that  Chile claims  that  its salmon  is from  the "cleanest                 
  waters on  earth."   He asserted that  the fishing  industry                 
  employs more  people than  the oil,  gas, timber and  mining                 
  industries combined.   He stated that  a study is needed  to                 
  assess the affect on the fishing industry.                                   
                                                                               
  In  response  to  a question  by  Representative  Kelly, Mr.                 
  VanNote observed  that fishing  vessels are  not allowed  to                 
  leave any oil  in the water.   Human  waste is retained  and                 
  pumped out.  He spoke against degradation from mixing zones.                 
  He  observed that there they cannot process fish with waters                 
  outside of Sitka due to pollution from the mill.                             
                                                                               
  Representative Grussendorf pointed  out that sport fisherman                 
  and commercial fisherman agree on  the importance of habitat                 
  protection.                                                                  
                                                                               
  Co-Chair Therriault stressed that a balance has to be found.                 
                                                                               
  GREG BISBY,  COMMERCIAL FISHERMAN, HAINES testified  via the                 
  teleconference network in  opposition to HB  51.  He  stated                 
  that pollutants in mixing zones can be taken into fish.                      
                                                                               
  MIKE SAUNDERS,  COMMERCIAL FISHERMAN,  HAINES testified  via                 
  the teleconference network in opposition to HB 51.                           
                                                                               
  (Tape Change, HFC 97-35, Side 1)                                             
                                                                               
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  Mr. Saunders stressed  that Alaskan  fish are marketed  with                 
  the claim  that they  are taken  from pristine  waters.   He                 
  emphasized  that the  mining  industry can  operate  without                 
  degradation to the fishing industry.                                         
                                                                               
  NORMAN HUGHES,  COMMERCIAL FISHERMAN,  HAINES testified  via                 
  the  teleconference network  in  opposition to  HB  51.   He                 
  emphasized the  importance of  clean water.   He  maintained                 
  that current water standards are working.                                    
                                                                               
  ELDON  DENNIS,  COMMERCIAL  FISHERMAN, JUNEAU  testified  in                 
  opposition to HB 51.  He stressed  that he is not opposed to                 
  oil or timber development.  He  insisted that oil and timber                 
  industries not  impact the  fishing industry  in a  negative                 
  manner.    He maintained  that HB  51  will have  a negative                 
  impact.  He  observed the  importance of Alaska's  marketing                 
  image.  He referred to the  Kensington project as an example                 
  of how current  regulations have worked  well.  He spoke  in                 
  support of site-specific exemptions.                                         
                                                                               
  STEVE   BEHNKE,   EXECUTIVE   DIRECTOR,  ALASKA   WILDERNESS                 
  RECREATION AND  TOURISM ASSOCIATION testified  in opposition                 
  to HB 51.   He alleged that the legislation  symbolizes that                 
  the State is open to certain  business, that businesses that                 
  result in dirty water  will be at the expense  of businesses                 
  that  require  clean  water.    He  stressed  that  Alaska's                 
  reputation as pristine and unspoiled  attracts visitors.  He                 
  asserted that the  legislation "makes  the dirtiest uses  of                 
  water the  dominate uses."   He  maintained that  commercial                 
  fishing and tourism  industries combined are the  largest in                 
  the State.   He emphasized  that the tourism  and commercial                 
  fishing industries  spend huge  sums to  market Alaska  as a                 
  place where clean water and a  pristine environment mean the                 
  highest quality products and experiences.   He stressed that                 
  the legislation sends the opposite message.                                  
                                                                               
  Representative Kelly  quoted from Governor  Knowles' 2/11/97                 
  press  release:  "Common  sense tells  you that  current EPA                 
  standards are unreasonable.  The EPA says that it is okay to                 
  drink a glass  of water from  an Alaskan stream, but  if you                 
  pour that water back  into the stream you are  violating the                 
  law because the  level of natural  occurring Arsenic is  too                 
  high  for the federal government."   He agreed with Governor                 
  Knowles' statement.   He  asserted that  the legislation  is                 
  trying to bring common sense to state regulations.                           
                                                                               
  Mr. Behnke stated that concerns  should be addressed through                 
  the  ongoing  regulatory  process.    He  acknowledged  that                 
  standards  in  regards to  Arsenic do  not  make sense.   He                 
  observed that the  legislation does  more than correct  this                 
  problem.                                                                     
                                                                               
                               10                                              
                                                                               
                                                                               
  Representative Davies  observed  that the  Arsenic issue  is                 
  being  fought  on a  federal level  and  state law  will not                 
  affect the issue.  Representatives  Davies and Kelly debated                 
  the reasonableness of state regulations.                                     
                                                                               
  KATY  HANSEN,  EXECUTIVE DIRECTOR,  UNITED  SOUTHEAST ALASKA                 
  GILLNETTERS ASSOCIATION  testified in  opposition to HB  51.                 
  She  observed  that  Alaska's image  of  pristine  waters is                 
  important.  She  suggested that specific problems  should be                 
  addressed through regulation.   She  noted that statutes  do                 
  not  allow  the  Department  of  Environmental  Conservation                 
  flexibility  to  work  with industry.    She  emphasized the                 
  economics of  industries currently  using the  waters.   She                 
  stressed that fishing is the  number one private employer in                 
  the State.  She  maintained that fishing, timber  and mining                 
  industries  can  work   together  as  long  as   habitat  is                 
  protected.                                                                   
                                                                               
  DICK MYRON, SIERRA  CLUB, JUNEAU testified in  opposition to                 
  HB  51.   He  provided  members  with a  declaration  of his                 
  credentials (copy on  file).  He noted that he  is a retired                 
  fishery research biologist.   He discovered that  flush rate                 
  calculations for the mixing zone in  Lynn Canal was in error                 
  by a factor  of 10.   The  flushing rate of  Lynn Canal  was                 
  incorrectly figured at  20 days.   The correct  rate is  200                 
  days.  He  pointed out that  agencies are under-funded.   He                 
  maintained  that  the State  does  not  have  the  staff  to                 
  adequately analyze water  quality.   He asserted that  there                 
  are  serious  impacts  from  logging  occurring   on  salmon                 
  streams.   He  asserted  that  salmon  stock will  crash  if                 
  degradation continues.                                                       
                                                                               
  SUSAN  SCHRADER,  EXECUTIVE  DIRECTOR, ALASKA  ENVIRONMENTAL                 
  LOBBY testified in opposition  to HB 51.  She  observed that                 
  the sponsors of the legislation have stated that:                            
                                                                               
       It  is the  Legislature's  intent  that Alaska's  water                 
       quality  regulations be  adopted  and implemented  in a                 
       credible manner; be based  on scientifically measurable                 
       criteria; and be economically feasible to comply with.                  
                                                                               
  Ms. Schrader alleged that HB 51  will not achieve this goal.                 
  She observed  that clean water  is critical to  the economic                 
  prosperity and  health of  Alaskans.  Unlike  a majority  of                 
  states,  Alaska  enjoys  a  reputation  of  having  pristine                 
  waters.    She  maintained   that  the  resource  extractive                 
  industries  in Alaska should  be willing to  meet high water                 
  quality  standards  designed  to  protect Alaska's  pristine                 
  waters.  She  observed that  the Alaska Environmental  Lobby                 
  opposes the bill because it would:                                           
                                                                               
                                                                               
                               11                                              
                                                                               
                                                                               
       *    Jeopardize the  health and welfare of Alaskans and                 
            their ability to protect their water  resources by                 
            lowering Alaska's  water quality standards  to the                 
            lowest standards nationwide;                                       
                                                                               
       *    The bill will lead to  great confusion, delays and                 
            litigation in the permitting process;                              
                                                                               
       *    It violates the basic principle of the clean water                 
            act by ignoring the concept of multiple users;                     
                                                                               
       *    It   introduces   a   definition  of   "background                 
            condition"  that  would  make  polluted water  the                 
            standard for further discharges; and                               
                                                                               
       *    The   legislation   requires  the   Department  of                 
            Environmental Conservation to deal with new, time-                 
            intensive, confusing procedures  for administering                 
            water quality standards.                                           
                                                                               
  Ms. Schrader observed  that the Department of  Environmental                 
  Conservation has been  subject to  budget reductions in  the                 
  past several years.   She  maintained that HB  51 will  hand                 
  over the power to determine the quality of Alaska's water to                 
  the federal  government.   She stated  that at  a time  when                 
  Alaska  is attempting  to  convince the  nation of  our good                 
  stewardship in order to  open up ANWR and NPR-A, HB 51 would                 
  show  that  the State  is  willing to  compromise  our water                 
  quality to placate industry.   She asserted that the State's                 
  unique attributes must be protected by unique standards that                 
  can be in excess of federal criteria.                                        
                                                                               
  Co-Chair Therriault pointed  out that the State  is adopting                 
  federal  standards.  He questioned Ms. Schrader's contention                 
  that the State would receive a  "black eye" for adopting the                 
  standards  that most  of the  states  live by.   If  a lower                 
  standard is adopted  scientific processes must  be met.   He                 
  observed that the State must define "pristine" waters.                       
                                                                               
  AL EWING, DEPUTY  COMMISSIONER, DEPARTMENT OF  ENVIRONMENTAL                 
  CONSERVATION noted that  the Department has  strong concerns                 
  regarding HB 51.   He  provided members with  a letter  from                 
  Commissioner   Brown  and   a  letter   from   the  Regional                 
  Administrator  of  Region  10  of  the   U.S.  Environmental                 
  Protection Agency (EPA) detailing  their concerns (copies on                 
  file).                                                                       
                                                                               
  Mr. Ewing maintained  that the  language of HB  51 seems  to                 
  indicate  confusion about  some of the  basics of  the Clean                 
  Water Act (CWA).   There are  three major provisions of  the                 
  CWA  that are relevant to  HB 51.  The  first has to do with                 
  technology-based standards,  the second is focused  on water                 
                                                                               
                               12                                              
                                                                               
                                                                               
  quality  standards and  the  third  concerns  permitting  of                 
  pollutant discharges.                                                        
                                                                               
  Mr.  Ewing  explained that  development  of technology-based                 
  standards  is  the domain  of  the  EPA.   The  EPA, through                 
  exhaustive examination of  available treatment technology on                 
  an  industry  by industry  basis,  determines what  level of                 
  treatment is technologically  and economically  practicable.                 
  The  EPA  is also  charged  with identifying  best available                 
  treatment  technology.    Out   of  this  examination  comes                 
  effluent limits or limits on the concentration of pollutants                 
  that an industry can  discharge.  The CWA objective  is zero                 
  discharge  of  pollutants, and  for  a number  of industries                 
  technology  is  available  to  achieve   zero  discharge  of                 
  pollutants.                                                                  
                                                                               
  Mr. Ewing clarified that technology  standards are not based                 
  on the  conditions of  a particular  water body.   They  are                 
  applicable  in  all  states and  territories  of  the United                 
  States,  without  regard to  the  water  body to  which  the                 
  discharge goes.  A technology based standard may require the                 
  discharge to  be cleaner than the receiving  water.  Setting                 
  technology-based standards is the domain of the EPA.                         
                                                                               
  Mr.  Ewing   observed  that   the  CWA   gives  states   the                 
  responsibility for setting water  quality standards.  Alaska                 
  determines  what uses are possible for state waters and sets                 
  standards to protect  those uses.   The EPA assists in  this                 
  effort by providing both numerical and narrative criteria on                 
  which  the states can  base water  quality standards.   They                 
  also  provide  guidance on  the  process and  procedures for                 
  establishing water quality  standards.  When states  fail to                 
  carry  out their  responsibility for  setting water  quality                 
  standards, the EPA  may prescribe federal standards  in lieu                 
  of  state standards.  That is  how Alaska came to be covered                 
  by the National Toxic Rule (NTR), which has created numerous                 
  problems  for  permitting.    He  noted that  standards  and                 
  criteria are two different things.  Criteria are a subset of                 
  water quality standards.                                                     
                                                                               
  Mr. Ewing explained that both technology-based standards and                 
  water  quality  standards  may come  into  play  when permit                 
  limits are set  for a  particular discharger.   If  effluent                 
  limits,  federally   established  technology-based   limits,                 
  result in a discharge  that is as clean or cleaner  than the                 
  water quality  standards for  the water  body receiving  the                 
  discharge,  then  nothing more  needs to  be  done.   If the                 
  federally    established    technology-based    limits   are                 
  insufficient to meet  water quality  standards, then one  of                 
  two things, or a combination of these two things needs to be                 
  considered -  a mixing zone  may be utilized,  or additional                 
  treatment technology may  be employed,  or a combination  of                 
                                                                               
                               13                                              
                                                                               
                                                                               
  the two.                                                                     
                                                                               
  Mr. Ewing maintained that a very serious problem with HB 51,                 
  is  that  it  confuses  the  concepts  and  the  terminology                 
  associated  with  water  quality  criteria,  water   quality                 
  standards, technology based effluent limits, permitting, and                 
  compliance.    He acknowledged  that Alaska's  water quality                 
  standards are not  as good as  they could be.   He  observed                 
  that the Department  has a major effort underway  to improve                 
  standards.                                                                   
                                                                               
  Mr.  Ewing  asserted  that Governor  Knowles  has  given the                 
  Department  of  Environmental  Conservation  the  charge  to                 
  ensure that standards  protect Alaskan waters for  all users                 
  and  to  actively  consult with  Alaskans  in  setting those                 
  standards.     He   maintained  that   the   Department   is                 
  aggressively making changes where needed.                                    
                                                                               
  Mr. Ewing stressed  that after an evaluation  of regulations                 
  regarding  suspended  sediments  and  petroleum  hydrocarbon                 
  particulates, the Department  concluded that no changes  are                 
  appropriate.                                                                 
                                                                               
  Mr. Ewing observed  that the  Department is rewriting  their                 
  mixing  zone  regulations   in  an  effort  to   make  these                 
  regulations   understandable,   workable,   and   adequately                 
  protective  of  Alaskan  resources.     He  noted  that  the                 
  regulations will have an additional period of public review.                 
  He stated  that negotiations  with EPA  have resulted  in an                 
  agreement by  EPA  to withdraw  Alaska from  coverage by  19                 
  acute  aquatic  criteria.   When  withdrawal  is  completed,                 
  Alaska will be able to utilize site specific procedures.                     
                                                                               
  Mr. Ewing explained  that Arsenic limits are  also currently                 
  prescribed by  the  NTR.    The Department  has  focused  on                 
  freeing Alaska from "this overly restrictive" federal limit.                 
  He observed that Commissioner Brown  has written letters and                 
  discussed this issue with regional and national EPA leaders.                 
  In addition, she has written in  support of an Alaska Miners                 
  Association  petition  to  have  this  limit  removed.    He                 
  observed  that  Governor Knowles  signed  a petition  to the                 
  Administrator of EPA demanding that  the NTR criteria, which                 
  is 277 times  more restrictive than Alaska's  drinking water                 
  standard, be  lifted until  research has  been completed  to                 
  determine an appropriate  limit.  The Department  expects to                 
  see results from these efforts.                                              
                                                                               
  Mr.  Ewing observed that  Governor Knowles sent  a letter to                 
  1200  Alaskans  asking them  to  identify the  most critical                 
  water  quality   standards  issues   having  an  impact   on                 
  permitting, resource protection or compliance.   That survey                 
  identified  12 issues  including  such  things as  petroleum                 
                                                                               
                               14                                              
                                                                               
                                                                               
  hydrocarbons, total dissolved solids, coliform bacteria, and                 
  procedures   for  setting   site   specific  standards   and                 
  reclassifying water bodies.   Working in conjunction  with a                 
  water   quality   advisory   group,    the   Department   of                 
  Environmental Conservation  has teams  of people  working on                 
  each   of   these  issues   with   the  charge   to  develop                 
  scientifically sound solutions.   The Department expects  to                 
  bring all twelve of these issues to resolution over the next                 
  10 months.                                                                   
                                                                               
  He emphasized  that the  Department's goal  is to  carefully                 
  protect  Alaska's water resources,  but at the  same time to                 
  remove unnecessary  obstacles and  expense for  development.                 
  He asserted that the Department  is committed to partnership                 
  with industry.                                                               
                                                                               
  He observed that  resources available  to the Department  of                 
  Environmental  Conservation to  accomplish  these goals  are                 
  very limited.  He maintained that the Department can achieve                 
  their goals if they do not have obstacles.  He asserted that                 
  HB 51 is an obstacle.  He alleged that HB 51  would not help                 
  the  Department  to remove  Alaska  from  the NTR  or  to be                 
  released from coverage  by the federal arsenic  limit, which                 
  is 277 times  more restrictive than Alaska's  drinking water                 
  standard.                                                                    
                                                                               
  He emphasized that HB 51 creates new and costly bureaucratic                 
  procedures which will divert scarce resources.                               
                                                                               
  In response to a question by Co-Chair  Therriault, Mr. Ewing                 
  observed that the  Department of Environmental  Conservation                 
  has approved dozens  of mixing  zones.  Co-Chair  Therriault                 
  asked if the Department is philosophically opposed to having                 
  the authority for mixing zones in  statute.  Mr. Ewing noted                 
  that states have  been allowed to  create mixing zones as  a                 
  matter of discretion in federal  law, based on site-specific                 
  additions   and  science.     He  cautioned  that  statutory                 
  authority may create problems.                                               
                                                                               
  In response  to a  question  by Co-Chair  Hanley, Mr.  Ewing                 
  noted  that the  Department does  not have state  or federal                 
  authority to create mixing zones.  He maintained that mixing                 
  zones are in the discretionary authority given to states, by                 
  interpretation, from  the federal  government.   He did  not                 
  think that the  Department would have  a chance of losing  a                 
  situation  due to the lack of  authority.  The State has not                 
  been  challenged  in  regards to  implementation  of  mixing                 
  zones.                                                                       
                                                                               
  Co-Chair  Hanley   observed  that  regulations  have  to  be                 
  supported  by  state  or  federal   authority.    Mr.  Ewing                 
  clarified that there is no specific authority under state or                 
                                                                               
                               15                                              
                                                                               
                                                                               
  local law.  He stated that the  authority goes back to state                 
  and federal law under the broader state water laws.                          
                                                                               
  In response to a question by Representative Grussendorf, Mr.                 
  Ewing  agreed  that  the legislation  shifts  the  burden of                 
  proof.   He stated that it is not  clear if mixing zones are                 
  mandatory  under  HB  51.   He  expressed  concern with  the                 
  processes the Department would have to follow.   He stressed                 
  that  the processes will  divert the  Department's attention                 
  from other issues.                                                           
                                                                               
  (Tape Change, HFC 97-35, Side 2)                                             
                                                                               
  Mr. Ewing stated that  HB 51 would put an  additional burden                 
  on the Department.                                                           
                                                                               
  Co-Chair  Hanley  summarized  that  the  regulation  process                 
  justifies the adoption  of standards.   Mr. Ewing  explained                 
  that the Department  uses federal  criteria and guidance  in                 
  setting state water  quality standards.  He  reiterated that                 
  the State does not have the resources  for economic analysis                 
  that the federal government does.  He acknowledged that  the                 
  Department looks at impacts and costs, but not to the extent                 
  that is contemplated by the legislation.                                     
                                                                               
  Co-Chair Hanley summarized that if the State adopts stricter                 
  standards  than there is some justification.  There could be                 
  a biological or chemical problem, or a physical condition or                 
  characteristic of the area that requires stricter standards.                 
  Stricter standards can also be adopted to  protect the human                 
  health,  welfare or  propagation of fish  and wildlife.   He                 
  asked what  the  Department  of  Environmental  Conservation                 
  would be required to do that they are not currently doing.                   
                                                                               
  Mr. Ewing referred  to the  requirement that the  Department                 
  review  all   state  regulations   in  regards  to   federal                 
  standards.  He  asserted that this requirement  would create                 
  an  enormous  additional  workload.    He  stated  that  the                 
  Department would  prefer to  tackle problems  on a  priority                 
  basis as they are brought to the Department.                                 
                                                                               
  Co-Chair Hanley noted  that the  Department has submitted  a                 
  $273 thousand dollar fiscal note to perform the review.  Mr.                 
  Ewing  acknowledged  that  it  is  the  policy  call of  the                 
  Legislature  to determine if  the review is  worth the time.                 
  He stated that the Department does not think it is worth the                 
  time.  He stressed that problems  are resolved when they are                 
  brought forward.  He maintained that looking for problems is                 
  a waste of time and resources.                                               
                                                                               
  Co-Chair  Hanley questioned what  specific problems could be                 
  identified that the Department would not normally find.  Mr.                 
                                                                               
                               16                                              
                                                                               
                                                                               
  Ewing  responded  that the  provision  does not  improve the                 
  basic  process,  "it  adds  process   and  procedure  to  no                 
  particular end."                                                             
                                                                               
  HB 51 was HELD in Committee for further consideration.                       

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