Legislature(1997 - 1998)
04/07/1997 01:38 PM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE BILL NO. 128 "An Act relating to water quality; directing the Department of Environmental Conservation to conduct water quality research; establishing the Water Science Oversight Board; and providing for an effective date." 1 REPRESENTATIVE BILL HUDSON, SPONSOR HB 128, spoke in support of HB 128. He stated that the legislation would, "to the greatest extent possible, substitute science and certainty for the emotional and political debate that often characterizes water quality regulations in this state." He noted that the federal Environmental Protection Agency (EPA) will not accept Alaska specific changes to water quality regulations. He asserted that the legislation would provide an impartial, non-political research organization to develop good scientific data. The legislation also charges the Department of Environmental Conservation to establish regulations based on the Board's recommendations. He noted that the Sponsor Substitute removed interim regulations from the original bill. He noted that the Department of Environmental Conservation and permit holders have agreed on the implementation of interim regulations. In response to a question by Representative Davies, Representative Hudson listed the Alaska Science and Technology Foundation, producers and the federal government as potential funding sources. He assured members that funding would not come from the General Fund. Representative Davies observed that industry funded research could be viewed as "tainted." Representative Hudson observed the difficulty of providing unbiased research. He noted that the intent of the legislation is to provide board oversight based on academic credentials and Alaska-based expertise in the field of water quality. Representative Davies asked if industry would contract directly with scientists or if money would be donated to the Department of Environmental Conservation as program receipts. Representative Hudson stated that the Department of Environmental Conservation would administer the contracts. He explained that private funding would be used to match federal or Alaska Science and Technology Foundation funding. He noted that the Legislature would have annual oversight. In response to comments by Representative Martin, Representative Hudson reiterated that the goal is to obtain non-biased, scientific data. He added that state primacy requires involvement by the Department of Environmental Conservation. He emphasized that the Department of Environmental Conservation, EPA and industry must feel that the process is scientific and not political. Representative Martin asserted that appointments by the Governor, Speaker, and Senate President will be political. 2 He stated that he has confidence in the Department of Environmental Conservation. Representative Hudson emphasized that the legislation is the result of recommendations from industry. He stressed that the legislation will have a positive effect on the development of mining and fish processing in Alaska. He noted the importance of water quality for economic development in Alaska. He observed that the legislation could have been drafted to allow the Governor to appoint the Water Science Oversight Board and the Legislature to confirm members. He acknowledged that the Department spoke against appointments by the Speaker and Senate President. Representative Martin maintained that $400 hundred dollar a day compensation is too high. He observed that Alaska Science and Technology Foundation Board members are compensated at $200 hundred dollars a day. Representative Hudson stated that emphasized that the compensation level was set to attract people with a scientific background. Co-Chair Therriault pointed out that the Board oversees the contract work. He emphasized that the Board should not be on the state payroll. He noted that the intent is that the scientific credentials of those doing the research would support the results. Representative Martin maintained that Department of Environmental Conservation employees would not only be interested in supporting the Governor's position. Co-Chair Therriault stressed that industry and the EPA might be suspicious of results provided by the Department of Environmental Conservation. Representative Davis asked the position of the fishing industry. Representative Hudson stated that he has not been contacted with concerns or support. He emphasized that mining is not the only industry that would benefit from the legislation. Representative Davis pointed out that the mining and fishing industries are the two major users of the water resource. He invited participation of fishing groups. Representative Hudson anticipated that the fishing industry would be involved and would benefit from the scientific research. Representative Grussendorf spoke in support of having the Governor appoint members. Representative Hudson stated that credentials would be paramount. He noted that the option of having the Governor appoint the members was considered. He explained that industry felt that the appointment process contained in the legislation would be scientifically 3 established but philosophically diverse. MCKIE CAMPBELL, COUNCIL OF ALASKA PRODUCERS spoke in support of HB 128. He noted that the Council represents all the largest mining companies in the State. He stressed that the State must submit changes in state water quality regulations to EPA. The Environmental Protection Agency is required to consider the public process and scientific support for the change. Mr. Campbell maintained that the State has not provided scientific basis for water quality changes. If EPA rejects the state change, they are required to promulgate a federal water quality regulation based on federal guidelines. He maintained that federal guidelines are more difficult for industries to work with, without providing additional environmental protection. Mr. Campbell asserted that HB 128 provides a framework for industry and environmental groups to join with the Department of Environmental Conservation to seek funding for the scientific research needed to change water quality regulations. He emphasized that they are not only interested in loosening regulations. He stated that industry is interested in making regulations work better. He noted that test results are dependent on the criteria used. He stressed that a medium sized mine can cost hundreds of millions of dollars. He noted that this investment can be put at risk by testing methods that are not proven. He discussed "wet testing" to demonstrate that criteria used by other states are not always appropriate for Alaska. He noted that the Commissioner of the Department of Environmental Conservation has worked with industry to solve problems with wet testing. Mr. Campbell emphasized the need to provide good quality, scientific oversight for contracts. He noted that the intent is to obtain a Board with specific academic and professional credentials. He spoke against reducing the compensation rate. He maintained that the compensation rate is needed to support the level of expertise. Mr. Campbell stated that the Department of Environmental Conservation has cooperated on the whole. He emphasized that complaints regarding service by the Department have occurred as a result of limitations in their existing budget. Mr. Campbell noted that fishing groups have spoke in support of the legislation in previous committees. He was not aware of opposition by fishing groups. Mr. Campbell spoke in support of the appointment process contained in the legislation. He expressed concern that 4 there is a balance on the Board. Mr. Campbell stressed that it is possible to protect Alaska's waters and have a healthy industry. Representative Grussendorf noted that the State receives a greater percentage of its revenues from fishing than from mining. He emphasized that the mining industry should be prepared to contribute to the cost of providing research. Mr. Campbell emphasized that the issue is not fishing versus mining. He maintained that mining permit fees are extremely high. He added that the mining industry brings good paying jobs into areas of the state where they are needed. Representative Martin referred to the findings section. He noted that the legislation maintains that "the state's water resources have unique characteristics..." (Tape Change, HFC 97-87, Side 2) Mr. Campbell reiterated that testing methods used in other states do not always work in Alaska, due to water temperatures and other factors. He noted that Alaska has higher arsenic levels in its waters. MICHELLE BROWN, COMMISSIONER, DEPARTMENT OF ENVIRONMENTAL CONSERVATION clarified that the Department does not do independent scientific research. The Department reviews existing literature and standards used by other states and the federal government when promulgating regulations. She pointed out that the legislation would authorize field research that is specific to Alaska conditions that can be used to take issue with the Environmental Protection Agency. She noted that the State could have overcome the arsenic issue more quickly if Alaskan data existed. Co-Chair Therriault suggested that the finding section could be contained in a letter of intent. Representative Hudson agreed that the findings section could be contained in a letter of intent. In response to a question by Representative Davies, Mr. Campbell clarified that the Department of Environmental Conservation would form a partnership with one or more users of water. The partnership would apply for money from the Alaska Science and Technology Foundation. The Alaska Science and Technology Foundation will make grants to entities that involve public entities, but they will not make grants directly to a public entity. The Department and the partners would use the money according to the research plan that was submitted to hire contractors. He noted a potential for federal funding. 5 Co-Chair Therriault noted that the only boards that compensate members at $400 dollars a day are the Permanent Fund Board and the Alaska Railroad Board. JERRY MCCUNE, UNITED FISHERMEN OF ALASKA (UFA) stated that UFA does not have a position in regards to the legislation. He indicated that UFA may have a problem with the appointment process. He stated that UFA would probably support appointment by the Governor. He maintained that a single candidate pool will provide better review. Representative Martin MOVED to adopt Amendment 1 (copy on file). Co-Chair Therriault OBJECTED for purposes of discussion. Amendment 1 would provide that "no member of the board may be an employee of the Department of Environmental Conservation except for the commissioner or the commissioner's designee." Amendment 1 would also reduce compensation from "400" to "200" hundred dollars a day and delete authorization for partial day compensation. Representative Martin maintained that $400 hundred dollars a day is too much. He stated that he would support compensation at $200 hundred dollars a day. Representative Hudson stated that the intent is that only the commissioner or their designee would sit on the Board. He did not object to this portion of Amendment 1. He stressed that compensation should at least be at the same level as the Alaska Science and Technology Board. Co-Chair Therriault pointed out that partial day compensation can save the State money. In response to a question by Representative Kelly, Representative Davies thought that experts could be found within the State. Representative Hudson noted that broad- based scientists sit on the Alaska Science and Technology Board. Co-Chair Therriault MOVED to AMEND Amendment 1 by deleting the reference to page 3, lines 10 - 12, and deleting "$400" and inserting "200". There being NO OBJECTION, it was so ordered. Representative Davies MOVED to divide the question. Amendment 1A would insert a new sentence: "No member of the board may be an employee of the Department of Environmental Conservation except for the commissioner or the commissioner's designee." Amendment 1B would change the compensation from $400 hundred dollars to $200 hundred dollars a day. 6 Representative Grussendorf asked if the member pointed by the University of Alaska would be a public employee. He pointed out that most people doing scientific research would already be employed by the University or the State. Mr. Campbell stated that the intent is that people not be paid double. He did not expect that anyone working for one of the companies would be nominated. He stressed that the greatest pool of scientists are either working for the University or are independent contractors. He emphasized that they would not be billing other work while they are working on these contracts. Representative Davies pointed out that the member appointed by the president of the University of Alaska does not have to be an employee of the University. He added that there are people who are technically employees of the University but are paid by contract billing to specific research contracts. Mr. Campbell noted that discussions with the Legislative Legal Services Agency indicated that compensation decisions would be based on each individual case. Representative Davies suggested that language could be added to clarify that an employee who is not taking money from the State or University during the time they are conducting contract research could be reimbursed. Representative Martin noted that the University has members on other boards. Representative Martin MOVED to adopt Amendment 1A. There being NO OBJECTION, it was so ordered. Representative Martin MOVED to adopt Amendment 1B. Representative Davies OBJECTED. He spoke in support of increasing the daily compensation rate to $300 hundred dollars. He stressed that professional consultants would spend time in preparation that they would not charge. Representative Hudson noted that board members would be asked to direct the Department of Environmental Conservation and would have academic credentials and Alaska-based expertise in the field of water quality. Representative Mulder clarified that members would receive travel and per diem in addition to their daily compensation. Co-Chair Therriault noted members would be compensated for their preparation time. Mr. Campbell noted that the Board would watch their own cost. Representative Hudson recounted that as a member of the Alaska Seafood Marketing Institute 7 Board he found that the Board was very conservative with compensation. A roll call vote was taken on the MOTION to adopt Amendment 1B. IN FAVOR: Grussendorf, Martin, Moses, Mulder, Therriault OPPOSED: Kelly, Davies, Davis, Foster Co-Chair Hanley and Representative Kohring were absent from the vote. The MOTION PASSED (5-4). Representative Davies MOVED to Rescind the Committee's action in adopting Amendment 1B. A roll call vote was taken on the MOTION. IN FAVOR: Moses, Mulder, Davies, Davis, Grussendorf, Foster, Kelly OPPOSED: Martin, Therriault Co-Chair Hanley and Representative Kohring were absent from the vote. The MOTION PASSED (7-2). Representative Davies MOVED to AMEND Amendment 1B by deleting "$200" and inserting "$300" hundred dollars. A roll call vote was taken on the MOTION. IN FAVOR: Moses, Mulder, Davies, Davis, Grussendorf, Foster, Kelly OPPOSED: Martin, Therriault Co-Chair Hanley and Representative Kohring were absent from the vote. The MOTION PASSED (7-2). Representative Davies MOVED to adopt Amendment 2 (copy on file). Representative Mulder OBJECTED for purposes of discussion. Amendment 2 would change "shall" to "may" on page 2, line 27. Representative Davies stressed that research would not always require a change of regulation. He emphasized that the Department should have flexibility. Representatives Hudson and Davis spoke in support of "shall". Co-Chair Therriault stated that the intent is to avoid a situation where the Board makes a recommendation based on 8 research that the commissioner chooses to ignore. Representative Martin spoke in support of "may". He stressed that the authority of the Administration through the Department should not be delegated to the Board. He emphasized the need for flexibility. Representative Hudson noted that the legislation does not require that the Department submit the water quality regulations proposed by the Board. Commissioner Brown spoke in support of "may". She noted that separation of powers is identified by whether the Board is advisory or mandatory. If the Board directs the executive branch the separation of power is not maintained. She added that "shall" would mandate that the Department adopt regulations. She stressed that this would preclude the option of allowing the Department to maintain current regulation if it is found to be accurate. She observed that state regulations regarding arsenic were accurate. She observed that the Environmental Protection Agency requires the State to make a finding to justify the need or lack of regulations. Representative Hudson acknowledged concerns by the Commissioner and noted that "may" would alleviate a potential legal challenge. In response to comments by Representative Kelly, Co-Chair Therriault pointed out that the legislation attempts to secure scientific answers. He emphasized that the legislation speaks to a new process. The legislation does not answer legislator's frustrations regarding agency implementation of regulations. Representative Hudson added that the Department of Environmental Conservation is directed, in the intent section, to adopt new regulations as appropriate based on the research. He stressed that legislators could impose regulations in law. (Tape Change, HFC 97-88, Side 1) Representative Kelly summarized that the Board's recommendation could be used to implement legislation. Representative Hudson stressed that there would be a stronger basis for the legislature to take action if the Department failed to act. Representative Davies observed frustration of the Department of Environmental Conservation's at being asked to do things that they cannot do. He felt that the Department would support substantive recommendations by the Board. He 9 pointed out that research does not always result in an end. There being NO OBJECTION, Amendment 2 was adopted. Representative Davies MOVED to adopt Amendment 3 (copy on file). Co-Chair Therriault OBJECTED for purposes of discussion. Amendment 3 would provide that the Governor appoint the Board. Representative Davies spoke in support of Amendment 3. Co-Chair Therriault spoke against the amendment. He felt that the current procedure would lend a higher level of acceptance of the research. A roll call vote was taken on the MOTION to adopt Amendment 3. IN FAVOR: Martin, Moses, Davies, Grussendorf OPPOSED: Davis, Foster, Kelly, Mulder, Therriault Co-Chair Hanley and Representative Kohring were absent from the vote. The MOTION FAILED (4-5). Representative Davies MOVED to adopt Amendment 4 (copy on file). Co-Chair Therriault OBJECTED for purposes of discussion. Representative Davies explained that Amendment 4 would clarify that: "A member of the board who, while serving the board, is not being compensated as a public employee." Representative Hudson agreed that the amendment clarifies that the intent is to not allow double dipping. There being NO OBJECTION, Amendment 4 was adopted. Co-Chair Therriault referred to the fiscal note by the Department of Environmental Conservation, dated 3/24/97. He noted that the salary for an environmental specialist III is approximately $60 thousand dollars. Commissioner Brown explained that the administrative charge back is included in the personal service line. Co-Chair Therriault questioned if the administrative cost is high. MIKE TIBBLES, STAFF, REPRESENTATIVE THERRIAULT noted that the detailed budget book for the Department of Environmental Conservation identifies the total cost of salary and benefits, for an environmental specialist III, at $67 thousand dollars. Representative Mulder agreed that the total cost varies between $60 - $74 thousand dollars. Commissioner Brown thought the indirect administrative cost was between 12 and 15 percent. Representative Hudson suggested that the personal service line be reduced to $75 thousand dollars to allow a higher step increase. 10 Representative Mulder suggested that a personal service line of $80 thousand dollars would allow adequate compensation and some administrative charge back. Co-Chair Therriault MOVED to reduce the personal service line, in the Department of Environmental Conservation's fiscal note from "$100" to "$80" thousand dollars. There being NO OBJECTION, it was so ordered. In response to a question by Co-Chair Therriault, Commissioner Brown clarified that the increase in the contractual line in FY 03 reflects legal services that will be needed when regulations are actually promulgated. She explained that there would be a RSA to the Department of Law to pay for the legal work. Representative Davies pointed out that the contractual line should be reduced by $4,800 thousand dollars, to reflect the reduction in daily compensation to $300 hundred dollars a day. He MOVED to reduce the contractual line from $28.7 to $23.9 thousand dollars. There being NO OBJECTION, it was so ordered. Representative Foster MOVED to report CSHB 128 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes.