Legislature(1997 - 1998)

04/07/1997 01:38 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
        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           
                                                                               
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        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           
                                                                               
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        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.                                             

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