Legislature(1997 - 1998)

02/27/1997 01:45 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  HOUSE BILL 51                                                                
                                                                               
       "An Act  relating  to the  Department of  Environmental                 
       Conservation."                                                          
                                                                               
  Co-Chair Therriault reminded Committee members that a MOTION                 
  had been  left  pending on  Amendment  #13 from  a  previous                 
  meeting.  Representative  J. Davies  WITHDREW Amendment  #13                 
  and Amendment #8.  [Attachment #13 & #8].  He noted that the                 
  bill's sponsor, Representative Rokeberg, had agreed  to work                 
  with him at  a future date  on those two amendments.   There                 
                                                                               
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  being   NO   OBJECTION,  the   amendments   were  withdrawn.                 
  Representative Davies repeated that Amendments #8 & #13 were                 
  the most important issues of the legislation  and would most                 
  definitely be addressed.                                                     
                                                                               
  A new  Amendment #1  was distributed  to Committee  members.                 
  Representative J. Davies  MOVED to  adopt the new  Amendment                 
  purpose of discussion.   Representative Davies spoke  to the                 
  amendment, stating  that it  was not  State policy to  enact                 
  laws and regulations even if they were scientifically based.                 
  He  specified that the  "policy" should be  to protect human                 
  health and habitat.                                                          
                                                                               
  REPRESENTATIVE  NORMAN ROKEBERG  requested the  Committee to                 
  divide the amendment  into two parts,  noting that he  could                 
  support the  first portion  of the  amendment, although,  he                 
  thought  that portion  (B) was  the  intent language  of the                 
  legislation and had been  addressed in the body of  the bill                 
  on Page 2,  Line 13.   That section  references adoption  of                 
  water   quality   standards   in   the    State,   and   the                 
  responsibilities of Department of Natural Resources (DNR) to                 
  insure  that  human  health  and   wildlife  be  taken  into                 
  consideration.                                                               
                                                                               
  Co-Chair Therriault  MOVED to  divide the  question.   There                 
  being NO  OBJECTION, it  was divided.   Co-Chair  Therriault                 
  MOVED to adopt Section (A) of  Amendment #1.  There being NO                 
  OBJECTION, it  was adopted.   Co-Chair  Therriault asked  if                 
  there was objection to adopting the language  in Section (B)                 
  of Amendment #1.  Representative Kelly OBJECTED.                             
                                                                               
  Representative   Rokeberg   reiterated  that   the  proposed                 
  language  would  confuse interest  expressed  in the  intent                 
  language.   Representative J.  Davies pointed  out that  the                 
  amendment  addresses the area  in the first  sentence of the                 
  bill,  State policy.  He  suggested that the amendment would                 
  clarify the policy purpose.                                                  
                                                                               
  A  roll call vote  was taken on the  MOTION to adopt Section                 
  (B), Amendment #1.                                                           
                                                                               
       IN FAVOR:      Grussendorf, Moses, J. Davies, G. Davis                  
       OPPOSED:       Kelly, Kohring, Martin,  Mulder, Foster,                 
                      Therriault                                               
                                                                               
  Representative Hanley was not present for the vote.                          
                                                                               
  The MOTION FAILED (4-6).                                                     
                                                                               
  Representative  J.  Davies  MOVED  to  adopt  Amendment  #2.                 
  [Attachment  #2].    Co-Chair Therriault  OBJECTED  for  the                 
                                                                               
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  purpose of discussion.   Representative Rokeberg noted  that                 
  he did  not object  to the  amendment.   Co-Chair Therriault                 
  WITHDREW the OBJECTION.  There  being NO further OBJECTIONS,                 
  Amendment #2 was adopted.                                                    
                                                                               
  Representative  J.  Davies  MOVED  to  adopt  Amendment  #3.                 
  [Attachment    #3].       Co-Chair    Therriault   OBJECTED.                 
  Representative Rokeberg noted that he did not object  to the                 
  amendment.    Co-Chair  Therriault WITHDREW  the  OBJECTION.                 
  There being NO further OBJECTIONS, Amendment #3 was adopted.                 
                                                                               
                                                                               
  Representative J. Davies WITHDREW Amendments  #4, #5 and #6.                 
  [Attachments #4, #5, #6].                                                    
                                                                               
  Representative  J.  Davies  MOVED  to  adopt  Amendment  #7.                 
  [Attachment  #7].    Co-Chair Therriault  OBJECTED  for  the                 
  purpose of  discussion.  Representative  J. Davies explained                 
  that Amendment  #7 would  simply change  the amount of  time                 
  that the Department  has to respond  to the initiation of  a                 
  procedure and response to a request.                                         
                                                                               
  Representative  Rokeberg  objected  to  the  amendment.   He                 
  pointed out that  concern had  been addressed in  subsection                 
  [C],  exempting any  applicant  from petitioning  under  the                 
  Administrative  Procedures Act.  He pointed  out that the 90                 
  days was  the agreed  time needed to  initiate the  process.                 
  Subsection [C]  only comes  into play  in "reduction in"  or                 
  "elimination of" federal water quality standard criteria for                 
  regulations.   Representative  Rokeberg  suggested that  the                 
  section was prospective.   That portion of the bill resulted                 
  from the transition review  by the Department, which in  the                 
  past,  had taken  up  to  four years  to  make  some of  the                 
  corrections.  If the  federal government were to  change any                 
  provisions of  the Clean  Water Act  and/or the  regulations                 
  relating to  it, that  section would allow  an applicant  to                 
  make  a request,  the reduction  in that  regulation  or the                 
  complete elimination by  the federal government.   Given the                 
  language of  the  bill, following  the  90 day  period,  the                 
  Department would be responsible to start the process.                        
                                                                               
  Co-Chair Therriault pointed out that  Page 2, Line 11, would                 
  initiate  the  regulatory  review  process.   Representative                 
  Grussendorf interjected that the Department would  then have                 
  more responsibilities.                                                       
                                                                               
  ALVIN EWING,  DEPUTY  COMMISSIONER,  DEPARTMENT  OF  NATURAL                 
  RESOURCES, commented that it was not the length of time, but                 
  the  issue of  the new process  which makes  the legislation                 
  prohibitive.   Currently, the Administrative  Procedures Act                 
  allows companies to come forward  to address their concerns.                 
  Procedures are currently  in place.   He  stressed that  the                 
                                                                               
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  role of the federal government would be to provide guidance,                 
  which  differs from the  responsibilities of  the Department                 
  and the State.                                                               
                                                                               
  Mr. Ewing  emphasized that  the process  recommended through                 
  the legislation was  "flawed" and that the  bill will create                 
  an enormous work load for the Department.   In regard to the                 
  amendment, he stated  that if a  choice had to be  made, the                 
  Department would choose  180 days,  but reiterated that  the                 
  process is not necessary.                                                    
                                                                               
  A roll call vote was taken on the MOTION.                                    
                                                                               
       IN FAVOR:      Moses, J. Davies, Grussendorf                            
       OPPOSED:       Kelly,  Kohring,   Martin,  Mulder,   G.                 
                      Davis, Foster, Therriault                                
                                                                               
  Representative Hanley was not present for the vote.                          
                                                                               
  The MOTION FAILED (3-7).                                                     
                                                                               
  Representative  J.  Davies  MOVED  to  adopt  Amendment  #9.                 
  [Attachment  #9].    Co-Chair  Therriault  OBJECTED for  the                 
  purpose of discussion.                                                       
                                                                               
  Representative  Rokeberg suggested  that  the amendment  was                 
  redundant  and  unnecessary.   An  applicant coming  forward                 
  would  be required  to submit  their reasons  and  basis for                 
  them.  Scientific and economic aspects only come into "play"                 
  if  the  Department  chooses  to make  it  a  more stringent                 
  regulation.  Representative  Mulder asked  if there was  any                 
  other reason to  make the request.   Representative Rokeberg                 
  pointed out that  only subsection [C] would  be addressed in                 
  the  amendment,  and  only  if  there  was  a  reduction  or                 
  elimination in the federal government standard.                              
                                                                               
  Representative  J. Davies advised  that the  "process" would                 
  relate to what the Department  was responsible for "finding"                 
  addressed  on  Page 4,  Lines  11  &  12.   He  stated  that                 
  Amendment #9 specifies  that when the  request is made,  the                 
  change  would be  in  the criteria,  either  a reduction  or                 
  elimination,  which  by definition  would be  a "scientific"                 
  change.  The  economic portion would  be the "new"  section.                 
  When an industry requests the State to change  standards, it                 
  would  help the  process to  have  the industry  specify the                 
  economic advantages.   Representative Davies concluded  that                 
  step would facilitate the process.                                           
                                                                               
  Co-Chair Therriault suggested  that if the federal  standard                 
  was discontinued, even  if the  State continued industry  to                 
  require  it  without  justification, an  automatic  economic                 
  reason  would  exist each  time.   Representative  J. Davies                 
                                                                               
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  disagreed,  suggesting that  it  would  not  necessarily  be                 
  automatic.  In some situations, the existing work could cost                 
  money;  the Department  could address  that concern  without                 
  changing  the standard  of  the  State.   Just  because  the                 
  federal  government  changes  policy,  the  State  will  not                 
  necessarily  follow  suit.    He   stressed  that  the  more                 
  information the Department has when the request is made, the                 
  easier it would be to solve the problem.                                     
                                                                               
  Representative  G.  Davis  spoke to  the  "unknown"  and the                 
  complication of those changes, suggesting that the amendment                 
  would have merit.                                                            
                                                                               
  A roll call vote was taken on the MOTION.                                    
                                                                               
       IN FAVOR:      Moses, J. Davies, G. Davis, Grussendorf                  
       OPPOSED:       Kohring, Martin, Mulder,  Foster, Kelly,                 
                      Therriault                                               
                                                                               
  Representative Hanley was not present for the vote.                          
                                                                               
  The MOTION FAILED (4-6).                                                     
                                                                               
  Representative  J.  Davies  MOVED to  adopt  Amendment  #10.                 
  [Attachment  #10].   Co-Chair  Therriault OBJECTED  for  the                 
  purpose of discussion.                                                       
                                                                               
  Representative J. Davies explained that  the amendment would                 
  delete subsection  [D], Page #3.   He believed  that section                 
  determines what  constitutes  a measurement  standard.    He                 
  stressed that the  Department is competent in  deciding what                 
  an adequate test is and that  it should not be submitted  to                 
  the Environmental  Protection Agency (EPA).   Representative                 
  Rokeberg objected to the amendment.                                          
                                                                               
  BECKY   GAYE,   (TESTIFIED  VIA   TELECONFERENCE),  RESOURCE                 
  DEVELOPMENT COUNCIL (RDC), ANCHORAGE, testified that the EPA                 
  approved methods are  what the industry wants,  knowing that                 
  it could be  approved in  advance.  She  recommended not  to                 
  delete  that  section.   The  boundary of  method  should be                 
  approved by  EPA.  If  the State does  not want to  use EPA,                 
  they  would  be required  to  reference the  following page,                 
  subsection [3].  Representative Kelly asked if the situation                 
  would be in jeopardy by not  having the approval in writing.                 
  Ms. Gaye replied that  whether it was in writing or  not was                 
  the concept of  the amendment.   Methods currently exist  on                 
  the books.                                                                   
                                                                               
  A roll call vote was taken on the MOTION.                                    
                                                                               
       IN FAVOR:      Moses, J. Davies, Grussendorf                            
       OPPOSED:       Martin, Mulder, G. Davis, Foster, Kelly,                 
                                                                               
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                      Kohring, Therriault                                      
                                                                               
  Representative Hanley was not present for vote.                              
                                                                               
  The MOTION FAILED (3-7).                                                     
                                                                               
  Representative  J.  Davies  MOVED  to adopt  Amendment  #11.                 
  [Attachment  #11].    Co-Chair Therriault  OBJECTED  for the                 
  purpose of  discussion.   Representative  Davies noted  that                 
  subsection [E] specifics that the  Department use the volume                 
  metric off-cone method, pointing out that  they do use it at                 
  this time.                                                                   
                                                                               
  Representative Rokeberg responded that the  cone is a simple                 
  method of measurement  which is  good to use  in the  field.                 
  There  has been a lot of study  regarding that concern.  The                 
  Department  issued  "findings"  that they  should  use  that                 
  method,  although,  it has  not  been adopted  into specific                 
  regulations.  Representative Rokeberg felt that the language                 
  provided all the necessary flexibility  and would be the EPA                 
  recognized standard of measurement.                                          
                                                                               
  Representative J. Davies  could not  believe that the  State                 
  would put  into statute  a requirement  that the  Department                 
  stay  "lock-step"  in  with the  federal  government  on any                 
  issue.  The in-lock  cone is the measurement choice  used at                 
  this time.  He observed that might not be true in the future                 
  and questioned why the State would lock in statute something                 
  that should  be a regulatory  issue.  Techniques  change and                 
  that type of detail would not be good policy in statute.                     
                                                                               
  (Tape Change HFC 97-43, Side 2).                                             
                                                                               
  Representative Mulder questioned if  another alternative was                 
  available.   Representative Kelly replied  that alternatives                 
  are not the problem.  He stated that the bill addresses  the                 
  leeway given to the experts  referenced to by Representative                 
  Davies, suggesting that current language was too broad.                      
                                                                               
  A roll call vote was taken on the MOTION.                                    
                                                                               
       IN FAVOR:      Moses, J. Davies, Grussendorf                            
       OPPOSED:       Mulder,   G.   Davis,   Foster,   Kelly,                 
                      Kohring, Therriault                                      
                                                                               
  Representatives Martin and  Hanley were not present  for the                 
  vote.                                                                        
                                                                               
  The MOTION FAILED (3-6).                                                     
                                                                               
  Representative  J.  Davies  MOVED  to  adopt Amendment  #12.                 
  [Attachment  #12].   Co-Chair  Therriault  OBJECTED for  the                 
                                                                               
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  purpose of discussion.   Representative J. Davies  explained                 
  that the amendment would address  the difference between the                 
  biochemical  and physical  conditions, indicating  that they                 
  are  different  from  those  conditions  upon  which federal                 
  standards are based.   He  believed that the  intent was  to                 
  certify a change, if any of  the conditions were found.  The                 
  language  of  the bill  requires that  all three  exist, the                 
  biological,     chemical     and     physical    conditions.                 
  Representative Davies  recommended replacing the  "and" with                 
  "or".                                                                        
                                                                               
  Representative  Rokeberg replied  that these  conditions are                 
  what exist in the  entire world.  The amendment  would allow                 
  the Department  to consider  everything, in  case that  they                 
  would  want  to  make  the  standard  more  stringent.    He                 
  suggested that it would be to  the benefit of the Department                 
  to keep the "and".                                                           
                                                                               
  Representative J. Davies  pointed out that "or"  remained in                 
  the body of  the legislation in reference  to the biological                 
  and  chemical  discharge  characteristics.    Representative                 
  Mulder suggested that the argument was one of semantics.  He                 
  agreed that a full range of options should be available.                     
                                                                               
  Mr. Ewing stated that "or" would  provide more latitude than                 
  "and".  The use  of "and" would require that  the Department                 
  demonstrate each of the points.  Committee members discussed                 
  the semantic differences between using "or" or "and".                        
                                                                               
  Co-Chair   Therriault  WITHDREW   the  OBJECTION   to  adopt                 
  Amendment #12.  Representative Foster proceeded to OBJECT.                   
                                                                               
  A roll call  vote was  taken on the  MOTION adopt  Amendment                 
                                                                               
       IN FAVOR:      Mulder,    J.    Davies,    G.    Davis,                 
                      Grussendorf, Kelly, Moses, Therriault                    
       OPPOSED:       Foster, Martin, Kohring                                  
                                                                               
  Representative Hanley was not present for the vote.                          
                                                                               
  The MOTION PASSED (7-3).                                                     
                                                                               
  Co-Chair  Therriault  noted  that  Amendment  #13  had  been                 
  WITHDRAWN by Representative J. Davies.  [Attachment #13].                    
                                                                               
  Representative  Kelly corrected  Amendment #14,  on Page  2,                 
  Line   #4,  deleting  "and  physical  conditions;"  and  the                 
  information  on  Page   2,  Line  #5  from   the  amendment.                 
  [Attachment #14].  There  were no objections to the  changes                 
  recommended by Representative Kelly.                                         
                                                                               
                                                                               
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  Representative Kelly  MOVED to  adopt the changed  Amendment                 
  discussion.                                                                  
                                                                               
  Representative  Kelly  noted  that  under  current  statute,                 
  statutory  authority  has been  given  to the  Department of                 
  Environmental  Conservation  in stream  classification.   He                 
  pointed out that sometimes the condition  of the water is at                 
  a lower standard  than the conditions established  as "uses"                 
  in the regulations.   The amendment would establish that the                 
  natural  occurring  condition  would  establish  the   water                 
  standard.                                                                    
                                                                               
  BRUCE CAMPBELL, STAFF, REPRESENTATIVE PETE KELLY,  discussed                 
  the deletion of  the language  "discharge" standards.   That                 
  language would  establish a  link with  language created  by                 
  EPA.                                                                         
                                                                               
  Co-Chair Therriault  WITHDREW his OBJECTION to  adopting the                 
  amendment.    There  being  NO  further  OBJECTION,  it  was                 
  adopted.                                                                     
                                                                               
  Co-Chair Therriault  spoke  to the  new departmental  fiscal                 
  notes pointing out  that the fiscal impact  had been reduced                 
  since the initial legislation.   He stated that  the initial                 
  notes  were  contingent  on  Section  #2, which  had  become                 
  "permissive" language, thus, reducing the DEC fiscal note.                   
                                                                               
  GERON  BRUCE, LEGISLATIVE  LIAISON, DEPARTMENT  OF  FISH AND                 
  GAME,  commented on the  fiscal impact to  the Department of                 
  Fish and Game.  Co-Chair Therriault asked if the  amendments                 
  adopted by the Committee would  increase the fiscal pressure                 
  to that Department.  Mr. Bruce stated they would not.                        
                                                                               
  Representative Foster MOVED to report CS  HB 51 (FIN) out of                 
  Committee  with  individual  recommendations  and  with  the                 
  accompanying  fiscal  notes.     Representative  J.   Davies                 
  OBJECTED.                                                                    
                                                                               
  He  voiced  appreciation  to   Representative  Rokeberg  for                 
  working  with  the   minority  members  of   the  Committee.                 
  Representative  Davies  stated that  as  the  bill currently                 
  exists, there are substantial problems and that he would not                 
  vote to move  it out of Committee because he felt it was not                 
  in a passable form.                                                          
                                                                               
  A roll call vote was taken on the MOTION.                                    
                                                                               
       IN FAVOR:      Foster,  Grussendorf,  Kelly,   Kohring,                 
                      Martin, Mulder, Therriault                               
       OPPOSED:       J. Davies, Moses                                         
                                                                               
                                                                               
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  Representatives G. Davis and Hanley were not present for the                 
  vote.                                                                        
                                                                               
  The MOTION PASSED (7-2).                                                     
                                                                               
  CS HB  51 (FIN)  was reported  out of  Committee with  a "do                 
  pass" recommendation and with fiscal notes by the Department                 
  of  Fish  and  Game  and  the  Department  of  Environmental                 
  Conservation.                                                                

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