Legislature(2009 - 2010)BARNES 124
01/28/2010 10:15 AM House FISHERIES
| Audio | Topic |
|---|---|
| Start | |
| HB46 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 46 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 46-MIXING ZONES/SEWAGE SYSTEMS
CHAIR EDGMON announced that the only order of business would be
HOUSE BILL NO. 46, "An Act requiring the Department of
Environmental Conservation to collect and make available to the
public certain information relating to water pollution;
prohibiting certain mixing zones in freshwater spawning waters;
and requiring a public comment period for certain sewage system
or treatment works modifications."
10:23:58 AM
REPRESENTATIVE SEATON, Alaska State Legislature, explained the
purpose of mixing zones. He said that that anyone can discharge
effluent, as long as it meets the water quality standards
established by the state. If the discharge does not meet the
standards, they can apply for a mixing zone permit from the
Department of Environmental Conservation (DEC). The permit
allows an area of water to be designated for dilution of the
discharge, creating a mixing zone. It is at the edge of the
mixing zone that the water quality standard must be met. There
are parameters regarding size, but some zones are as large as 1
1/2 miles long to allow enough area for dissipation of the
pollutants to occur. He said that formulating the discharge
rate and volume, and the dilution rate, establishes the mixing
zone area. The current bill has three components. The first is
that it would reflect the pre 2002 understanding for permitting
a mixing zone in a spawning area. A progression of regulation
changes has resulted in the identification of a spawning area by
the presence of fish actively spawning. This type of
identification resulted in the permitting of temporal permits,
and allows mixing zones to occur if fish are not present. The
bill re-establishes charted spawning areas to be the gravel beds
where nests occur. The bill does not affect broadcast spawners,
but only nest building fish. The second component is the public
disclosure aspect of the bill, which allows Alaskans the right
to know what is being discharged into the state's lakes and
rivers. He said that discharge monitoring and data recording
requirements are established under the Environmental Protection
Act (EPA). The bill upholds the Freedom of Information Act
(FOIA) in requiring accessible reports to be posted on the DEC
website. Finally, the law addresses waste water sewage lagoons.
The current law does not require public notice, when a sewage
lagoon is expanded. Specifically, he reported that a lagoon
near Homer increased discharge from 1,500 to 6,000 gallons per
day (gpd). The zone is near a residential area, and the
residents were not notified of the change, or provided a public
process for comment. The bill stipulates that an expansion of a
sewage lagoon, to over 50 percent of the original size, DEC
would require DEC to notify area residents and provide an
opportunity for public in a similar way as occurred for the
original permit.
10:29:22 AM
REPRESENTATIVE SEATON directed attention to the amendments in
the committee packet. The first amendment:
Page 3, line 24, following "for a":
Insert "commercially operated".
The intent is to clarify that a sewage lagoon is a commercially
operated facility, not a home septic system. The next
amendment:
Page 3, following line 21,
Insert "(4) "useful life" to mean the
anticipated time in which a facility can continue to
be operated without replacement or major renovation."
The intent is to provide a definition paragraph. The final
amendment reads:
Page 3, line 5. After "authorization" deletes "."
Insert ", or for an area where spawning was
ongoing at the time of initial authorization, if that
authorization occurred more than five years prior to
the effective date of the bill."
He explained that all three amendments are in response to DEC
concerns contained in the department's letter dated February 13,
2007, [Re: HB 74].
10:32:43 AM
REPRESENTATIVE JOHNSON asked if there is a definition of
commercially operated.
REPRESENTATIVE SEATON responded that the bill pertains to a
facility that receives waste from outside sources, charges a
fee, and discharges the waste material.
REPRESENTATIVE JOHNSON pointed out that municipalities may also
accept offsite waste.
10:34:04 AM
The committee took an at-ease from 10:34 to 10:35.
10:35:38 AM
REPRESENTATIVE MILLETT queried whether this legislation is a
reaction to a situation or pro-active protection.
REPRESENTATIVE SEATON said that it re-establishes the
legislation that was in effect prior to 2002, which provided
protection for spawning areas but was changed in 2003. He
pointed out that nearly all of the current mines were permitted
under the legislation prior to the 2003 changes. The pro active
aspects of the bill includes the disclosure aspect, which is
information that is gathered routinely and will now be made
available to the public in line with disclosure laws. The bill
does react to the situation at a sewage facility, located in the
sponsor's district, which has been allowed to expand without
public notice. The odor and associated concerns were apparent,
but a public hearing was not required, and this legislation
establishes a requirement for public process.
10:38:34 AM
REPRESENTATIVE MILLETT inquired why the mixing zone statutes
changed in 2003.
REPRESENTATIVE SEATON explained that the 2002 election resulted
in legislation that was focused on streamlining, which affected
a number of procedures. The coastal zone management districts
were no longer allowed to qualify or designate habitat, as an
example. At the time there was a concern for the Donlin Creek
Mine request for a discharge pipe permit to empty into a
spawning area. Under the existing 2002 requirements the pipe
would have required relocation upstream, and this may have been
the catalyst for changes to the mixing zone regulations that
occurred in 2003.
CHAIR EDGMON underscored that the 2003 mixing zone changes were
made in regulation not statute.
REPRESENTATIVE SEATON said that a question has arisen whether
DEC should be deferred to regarding this topic, but there is
precedent for this action, given the statute established for
cruise ship mixing zones.
10:41:46 AM
REPRESENTATIVE MUNOZ noted that it appears these issues are
covered by the federal Clean Water Act (CWA), and supported by
DEC, and she questioned the need for statutory change to
existing standards.
REPRESENTATIVE SEATON stressed that this will not set or change
established standards. However, when effluent does not meet the
standards, certain conditions must be met in order to discharge.
Standards may not be exceeded in a spawning area, for instance.
REPRESENTATIVE MUNOZ asked whether an entity would be allowed to
exceed the standards under the current legislation, and if so
how is it possible.
REPRESENTATIVE SEATON answered that a permit is issued to allow
discharge of material that exceeds the standards; essentially
using public water to meet the standards through dilution to the
edge of the mixing zone. It is the reason why DEC issues
permits, which are not needed if water quality standards are not
exceeded. The bill does not preclude permitted discharge, save
for discharges that would impinge upon spawning areas.
REPRESENTATIVE MUNOZ asked if there are examples of discharges
that are currently allowed in spawning areas.
REPRESENTATIVE SEATON directed attention to the committee packet
and the list of mixing zones, and what will be exempt from this
legislation.
10:47:44 AM
REPRESENTATIVE KELLER asked whether this would prevent expansion
of some existing sewage facilities.
10:48:32 AM
REPRESENTATIVE SEATON pointed out that the useful life exemption
covers current facilities, and allows for expansions and
upgrades.
10:49:04 AM
LYNN TOMICH KENT, Director, Division of Water, Department of
Environmental Conservation (DEC), pointed out that mixing zones
are part of DEC water quality standards, and are allowed under
federal law. The public process to revise water quality
standards, including mixing zone regulations, allows for public
review and comment. Once changes are adopted by the state, they
are also subject to review and approval by the EPA. The changes
made to DEC regulations in 2006 are still pending approval by
EPA, thus, the department is operating under the "old"
regulations. The old regulations included a prohibition on
mixing zones in spawning areas for all anadromous fish,
including trout and grayling. A recognition was made, when
these regulations were adopted, that exceptions would need to be
made to the prohibition, but none were included. The pending,
2006 regulations, have retained the prohibition of mixing zones
in salmon spawning areas, with the one exception of a
grandfather clause that recognizes salmon invading a permitted
area. The regulations pertain to domestic and industrial waste
water facilities, should salmon move into a permitted discharge
area. An important change, she pointed out, is that under the
new regulations, DEC could authorize a mixing zone in a spawning
area if the pollutants were found to not have an effect on the
fish. Regarding the public notice issue, she stated that any
permit request to discharge into surface water requires public
notice and a comment period, even if the facility is unchanged.
Only small facilities, discharging less than 2,500 gallons, are
excluded from this requirement, and are usually discharging to a
subsurface location.
10:54:00 AM
REPRESENTATIVE MUNOZ referred to Page 2, and the inclusion in
Sec. 2, subparagraph (J), the species rainbow trout. She asked
how this legislation would affect permitting a mine, such as the
one near Juneau, which has been permitted to use Lower Slate
Lake as a depository for tailings.
10:54:46 AM
MS. KENT indicated that the permitting for Lower Slate Lake was
provided under a different section of the CWA, allowing for the
disposal of solid material. She stated that she would provide
further information regarding the terms of this EPA NPDES
(natural pollutant discharge elimination system) permit to the
committee.
10:55:55 AM
REPRESENTATIVE SEATON pointed out that it is not considered
discharge into Lower Slate Lake, but rather fill, hence the
different permit.
10:56:31 AM
REPRESENTATIVE MUNOZ opined that in discharging the tailings,
water is involved, and she requested further information.
10:57:08 AM
CHAIR EDGMON inquired whether the regulations in place today
define salmon mixing zones, both temporally and spatially.
10:57:29 AM
MS. KENT responded that the pending regulations recognize salmon
spawning areas as specific locales, as well as a timing issue.
These regulations specify that a mixing zone may neither have an
impact during spawning activity, nor on future spawning.
10:58:22 AM
CHAIR EDGMON concluded that the temporal and spatial concerns
are addressed. He then opened public testimony.
10:59:02 AM
TOBY SHIELDS, directed attention to Section 3, line 25, and
read: "will result in an increase in discharge volume of more
than 50 percent from the volume originally authorized..." and
stated his understanding that currently if the permit were
modified by 10 percent it would require public testimony. Also,
would an increase in volume require public testimony, if it were
part of the design.
11:00:28 AM
REPRESENTATIVE SEATON explained that municipal wastewater/sewage
plants operate under different regulations than do private,
commercially operated facilities. The 50 percent expansion
clause pertains to the private facilities and does not affect
municipal operations.
11:01:29 AM
MS. KENT reminded the committee that any permit, even a renewal
of an existing permit, to discharge to surface water, requires a
public review.
REPRESENTATIVE SEATON referred to the committee packet, and the
letter, dated October 17, 2007, from Renee Evans of DEC,
regarding the Homer Honey Bear Septage Disposal Facility. The
letter indicates that the expansion of the facility, to increase
discharge from 1,500 to 6,000 gpd, was acknowledged and
accomplished via an internal administrative plan review in lieu
of the permit process, negating the need for a public review. A
public process was requested, but denied, and public objection
persists. He reported that the local residents have not
received any satisfaction.
11:03:28 AM
MS. KENT drew attention to her letter of April 9, 2009, to the
committee chair, clarifying the situation. In this particular
case, the septage lagoon percolates to the subsurface with no
discharge to surface water. The original permit was for 1,500
gpd. A recent inspection revealed that the facility has an
average discharge of just over 1,600 gpd, which is not directed
to surface water. Because the facility is discharging beyond
their permit limit, the owners are undergoing a design and
engineering review for approval by DEC to ensure that the
facility can handle the increased volume. She said, that to her
knowledge, the facility has not sought an increase to discharge
6,000 gpd. It is departmental policy that facilities
discharging less than 2,500 gpd to the subsurface be authorized
to operate via a plan review in lieu of a permit. Regulation
does not require public notice for this type of authorization.
11:05:42 AM
BOB SHAVELSON, Executive Director, Cook Inletkeeper, stated
support for HB 46 and reported that Inletkeeper has been
involved in the mixing zone issue since it surfaced in 2003. He
opined that the streamlining effort resulted in a rollback of
coastal management protection, creating devastation to the
habitat at that time, and spawning the contentious mixing zone
issue. The use of mixing zones embraces the belief that
dilution is the solution to pollution, despite the public's
concern that toxic substances and fish habitat do not mix.
Correcting MS Kent's previous statement, he clarified that
within the complicated CWA, the term mixing zone does not exist.
Mixing zones were crafted through creative rule making. When
Congress passed the CWA, in 1972, the intent was for pollutants
to meet a standard at the end of a discharge pipe. Mixing zones
have become the exception that has swallowed the rule, and
instead of decreasing toxins in our nation's waters, they have
become a permit to pollute. Returning to Representative Munoz's
question of why this issue should not be left to the EPA
process, he said, in EPA Region 10, Alaska is the only state
that does not have their salmon listed as an endangered species.
With the support of stringent state regulation and law, Alaska
has avoided the pitfalls of the other states. Pro active state
protection for Alaska's fisheries is imperative. Without a
statutory change, decisions will be left to discretion, which
has a way of creating problems. He provided an example in Cook
Inlet where the Trading Bay oil and gas separation facility has
an authorized mixing zone that stretches for more than a mile
across. The volume of toxins that the company can discharge was
tripled when this permit was issued, and the CWA is not met
within the mile zone. He opined that Alaska is not immune to
negative impacts on its fisheries. The world class sockeye
salmon run to the Frazier River, in British Columbia, Canada, is
a case in point. Over the past 20 years 37,000,000 salmon
returned to that river. In the past ten years that fishery has
collapsed. He opined that this is due to governmental
mismanagement, and short sited development goals, and stressed
that HB 46 is one step towards ensuring continued future salmon
production throughout Alaska.
11:11:23 AM
CHAIR EDGMON closed public testimony.
11:11:30 AM
REPRESENTATIVE SEATON responded to a previous question referring
to a DEC letter of June 17, 2005, contained in the committee
packet, from Gretchen Keiser. Turning to the fourth page
headings for "Outfall 001-Dishcarge of mine water to Sherman
Creek," and "Outfall 002-Dishcarge of tailings effluent water
from the Tailings Storage Facility (TSF) to East Fork Slate
Creek," he paraphrased from the fourth page, which read as
follows [original punctuation provided]:
Effluent limitations and monitoring frequency for the
parameters contained in Table 1 of the Preliminary
Final Permit. No mixing zone is authorized. ...
Effluent limitations and monitoring frequency for the
parameters contained in Table 3 of the Preliminary
Final Permit. No mixing zone is authorized.
REPRESENTATIVE SEATON presumed that apparently no mixing zone
was necessary for that mining operation to continue development.
11:13:06 AM
MS. KENT concurred, and will provide further information to the
committee regarding the Kensington Mine permit.
11:13:45 AM
CHAIR EDGMON requested the department's position on the bill.
11:14:16 AM
MS. KENT stated that the department has not taken a firm
position on the bill because "there are a lot of provisions that
we think are unclear and duplicative of things that are already
in place."
11:14:31 AM
CHAIR EDGMON stated that the bill would be held for further
consideration.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CurrentlyAuthorizedMixingZones.PDF |
HFSH 3/31/2009 10:15:00 AM HFSH 1/28/2010 10:15:00 AM |
HB 46 |
| HB46--SponsorStatementandSectional.PDF |
HFSH 3/31/2009 10:15:00 AM HFSH 1/28/2010 10:15:00 AM |
HB 46 |
| DEC2006QandA.PDF |
HFSH 3/31/2009 10:15:00 AM HFSH 1/28/2010 10:15:00 AM |
HB 46 |
| HB46--DECGeneralPermit.PDF |
HFSH 3/31/2009 10:15:00 AM HFSH 1/28/2010 10:15:00 AM |
HB 46 |
| HB46--PermitRenewAmendRegs.PDF |
HFSH 3/31/2009 10:15:00 AM HFSH 1/28/2010 10:15:00 AM |
HB 46 |
| HB46--2007TestimonyDEC.PDF |
HFSH 3/31/2009 10:15:00 AM HFSH 1/28/2010 10:15:00 AM |
HB 46 |
| HB46--HoneyBearCorrespondence.PDF |
HFSH 3/31/2009 10:15:00 AM HFSH 1/28/2010 10:15:00 AM |
HB 46 |
| HB46--List of Past Supporters.PDF |
HFSH 3/31/2009 10:15:00 AM HFSH 1/28/2010 10:15:00 AM |
HB 46 |
| HB46-DEC Fiscal Note Issued 2010.pdf |
HFSH 1/28/2010 10:15:00 AM |
HB 46 |
| HB46--DEC Answers to 2007 Seaton Office Honey Bear Questions.PDF |
HFSH 1/28/2010 10:15:00 AM |
HB 46 |
| HB 46--DEC Answer to Seaton Questions on Honey Bear 4.9.09.PDF |
HFSH 1/28/2010 10:15:00 AM |
HB 46 |