Legislature(1993 - 1994)
03/28/1994 08:15 AM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
Number 223
HB 436 - Strictness of Air Quality Regs.
JOSEPH EASAW, AIDE, REPRESENTATIVE AL VEZEY, stated HB 436
is designed to preclude the Department of Environmental
Conservation (DEC) from adopting by regulation, any ambient
air quality or emission standard that is more stringent than
the federal standards in the Clean Air Act. This bill will
limit that authority to the legislature which can adopt by
statute any standard deemed in the state's best interest.
Number 235
REPRESENTATIVE FINKELSTEIN wondered how this bill will work
if there is a new industry with a new pollutant being put
out and there is a health hazard. He said there are areas
presently where DEC has the authority to regulate that
activity, something not addressed at the federal level. He
asked if that authority is being taken away in HB 436.
Number 249
MR. EASAW responded that authority is not being taken away.
He said HB 436 limits the authority of DEC to not set forth
any regulation which is more stringent than those of the
federal regulations. The bill does allow DEC to set
regulations where no federal regulations are addressed.
REPRESENTATIVE FINKELSTEIN asked if subsections (b) (3) and
Section 2 address that issue.
MR. EASAW said that is correct.
Number 265
CHAIRMAN WILLIAMS pointed out the legislature went through
HB 167 last year and there was a lot of discussion and
debate on the bill, with many compromises made to arrive at
an agreement. He wondered how HB 436 will affect HB 167.
MR. EASAW stated he does not dispute the time which DEC may
have put into HB 167 and the compromises made. He said the
intent of HB 436 does not negate any of the work done on HB
167. The bill simply says DEC cannot set forth regulation
standards which are greater than the federal regulations.
CHAIRMAN WILLIAMS clarified HB 436 will not affect anything
in HB 167.
MR. EASAW stated HB 436 does not necessarily impact the work
of HB 167. Section 5 of HB 436 adds a definition of
regulated air contaminant and does say any regulation
adopted under AS 46.14.010(b)(2), meaning those regulations
adopted which were greater than the federal standards could
be affected.
REPRESENTATIVE FINKELSTEIN asked what is the reason for HB
436.
MR. EASAW responded there are two prominent reasons. First,
there is a feeling that anything that is in the state's best
interest which is beyond the guidelines of the federal
regulations should be left to the legislature. Second, when
guidelines are set forth which are greater than those of the
federal regulations, years of permitting processing is
required for certain industries and the economy is affected.
Number 322
MICHAEL MENGE, DIRECTOR, DIVISION OF ENVIRONMENTAL QUALITY,
DEC, stated HB 436 is not good for Alaska's business
community or the state's citizens. DEC feels under
appropriate conditions and circumstances it does make sense
for DEC to proceed beyond where the federal government sets
a standard. He noted the situations which develop in the
state are principally in the area of ambient air standards,
where DEC is looking at an air shed and the ability to step
into that air shed and restrict emission values
(indiscernible) than the federal government would authorize
where it makes sense to do so. He agreed that could be
accomplished through the legislative process but noted how
slow that process can be. He pointed out, with the
flexibility DEC currently has, DEC can accomplish this with
one-on-one negotiations with the permittee or those seeking
permits and do it fairly quickly.
MR. MENGE stated another key component is the two year
process it has taken to get to the current point. He said
although HB 167 is just one component within a very large
statutory package, it is a balanced equation. DEC worked
for two years to strike a balance, which represents
protection for the environment plus allows an environment in
which business can also work. He stressed there was
unanimous support across all the environmental and business
communities for HB 167. Therefore, DEC does not feel it is
a good time to step in and tinker with that equation
especially since DEC is currently in the process of writing
the regulations for the statute.
REPRESENTATIVE JAMES noted the last sentence of the sponsor
statement says, "This bill will limit that authority to the
legislature which can adopt by statute any standard deemed
in the state's best interest." She thought the Air Quality
Act passed last year contained provisions making the rules
more restrictive than the federal standards, which she does
not believe HB 436 affects. She stated HB 436 affects the
authority of the regulators to regulate past what is
contained in HB 167 and/or other federal regulations not
necessarily addressed in that bill. HB 436 takes the
ability to make those determinations and puts it in the lap
of the legislature, as opposed to the regulators. She asked
why that is not a good idea.
LEN VERRELLI, PROGRAM MANAGER, AIR QUALITY MANAGEMENT
SECTION, DEC, responded there are two points to look at
regarding the authority to regulate. One is a situation
like Unicol which has an ammonia standard currently which
they did not have before. The federal government does not
have an ammonia standard. Therefore, through a four year
intense process, a regulation was established, resulting in
an agreement between the community and the industry to
establish that standard. He said in the new statute, if DEC
decides to do something like that again, it will come before
the legislature, a committee is formed of the peers of that
particular pollutant and a resolution is found.
MR. VERRELLI stated the other point is what DEC does at a
request of the permittee. He mentioned the Healy Clean Coal
Project, as an example. He said the only reason that permit
was able to be issued by DEC is that the source came to DEC,
saying they wanted more stringent emission standards,
enabling them to keep emissions lower and get the National
Park Service to agree the project will not impact Denali
National Park. He stressed HB 436 will require going
through a more stringent permit process.
Number 444
STAN STEPHENS, PRESIDENT, PRINCE WILLIAM SOUND REGIONAL
CITIZENS' ADVISORY COUNCIL (RCAC), testified via
teleconference and stated HB 436 will prohibit DEC from
adopting or enforcing a regulation which establishes an
ambient air quality or emission standard more stringent than
federal standards. With the considerable time devoted by
numerous Alaskans over the past two years on HB 167, RCAC
was extremely surprised to see HB 436 proposed. RCAC was
even more surprised to see HB 436 scheduled for a hearing.
He stated the effort devoted to HB 167 was a multi-year
endeavor by representatives of many diverse interests in the
state. The result of this effort is Alaska's current air
quality statutes, regulations and public policies. These
results also represent a compromise among those different
perspectives. He noted those who represented the public
interest dedicated a significant amount of time and
resources to develop the compromise. Those same people
largely accepted the compromise, despite that industry
clearly fared better than the public.
Number 464
MR. STEPHENS stressed it is extremely disheartening after
this process and good faith effort to see HB 436. In the
past, DEC has not been overbearing in adopting regulations
more stringent than federal law requires. For example, in
the air pollution area, DEC has adopted only two additional
ambient air quality standards which were for ammonia and
reduced sulphur compos and both were for special industrial
pollution problems in Alaska. DEC has adopted smoke
capacity rules particularly important for vessel traffic in
Juneau, Seward, and Valdez. DEC has a program to control
ice fog, hardly a concern to the Environmental Protection
Agency (EPA) or the rest of the country. DEC has adopted
special rules applicable to the port of Anchorage allowing
liquid loading racks and delivery tanks to come to the
Government Hill neighborhood. Mr. Stephens said few will
argue those regulations are necessary to protect public
health and welfare and natural resources, even though they
were not forced by federal law and are more stringent than
federal law.
Number 484
MR. STEPHENS stated it is also not clear that HB 436 will
accomplish anything. Specifically, the state will give up
considerable flexibility if this legislation passes. For
example, the Golden Valley Electric Association recently
agreed to alter air emissions to make room for the Healy
Coal facility emissions (indiscernible) Denali Park. He
said in the port of Valdez, the EPA is setting emission
standards for organic vapor emissions due to tanker
operations at Alyeska's Valdez Marine Terminal. Valdez is
the largest single source of organic vapor emissions.
Number 504
MR. STEPHENS stressed state involvement and flexibility is
not in the best interest of the public or industry. RCAC
strongly opposes HB 436. The ability to set air quality
emission standards to protect the health of Alaskans is an
important state's rights issue which should not be casually
given away.
Number 515
REPRESENTATIVE JAMES asked why the state should have
regulations which are more stringent than federal standards.
She added that she does not consider permitting the same as
establishing regulations.
MR. VERRELLI responded it is. When an emission standard is
put in a permit, it becomes law for that particular permit
and that particular source.
Number 525
REPRESENTATIVE JAMES asked if that permit requirement and
regulation is at the request of the permittee, will HB 436
disallow DEC from doing that.
MR. VERRELLI replied yes.
REPRESENTATIVE JAMES asked what the time frame is for
establishing regulations relating to ambient air quality
standards.
MR. VERRELLI estimated it takes approximately one year to go
through the entire process.
REPRESENTATIVE JAMES wondered since HB 436 will still allow
the legislature to make rules and regulations more strict
than existing federal regulations, if it would be wise in
instances where there should be more strict regulations for
DEC to bring that situation to the legislature to make that
decision.
MR. MENGE stated timing is a very crucial issue. DEC
oftentimes enters into an air permit situation where there
is a fairly polarized community with a variety of industrial
interests. DEC negotiates the numbers which all of the
constituents can live with, by incorporating them into the
permit and then running the permit through the permit
approval process. That then becomes a part of the public
record and public acceptance, thus affecting the overall
permit. If DEC was to bring that process before the
legislature, it will be more difficult to arrive at an
agreement. He said the process tends to attract additional
concerns and policy issues, so the narrow focus, in a
specific geographic area, with a very narrow constituency,
oftentimes provides an opportunity to resolve a problem
before it begins to grow out of proportion. He felt it is a
question of timing.
Number 585
REPRESENTATIVE JAMES clarified that when someone applies for
a permit where state and federal laws apply, because the
public wants something even bigger, DEC, in issuing the
permit, should be able to do what the public asks. She
asked where does the public's right come into play in
getting something which is more than what state and federal
laws require.
MR. MENGE responded if the permittee is within the air
increment of a region, the public is entitled to that. He
said the public interest is represented through the permit
process. He noted the Healy project is a good example.
There is one emitting source well within permit limitations
and a second emitting source is coming in there. The
affected community was unprepared and unwilling to accept an
increase above the ambience standard. The public had a
vested interest and became fairly vocal through the permit
process. The permittee recognized a difficult situation, so
it made sense for the permittee to request a lower standard,
which had to be done in conjunction with the existing
source. Therefore, there were three groups along with the
state, together determining what the appropriate limitations
for all the permits should be, which allowed both to proceed
forward while still allowing the public to accept the
decisions made since they were a part of the process.
REPRESENTATIVE JAMES stated it appears the legislative
process is being circumvented.
MR. MENGE responded the public does not have a voice beyond
the existing air limitations standards. The public's voice
comes into play when a permit is being written and the
permittee is requesting to pull back. Once the permit is
reviewed and sent out for public comment, the public has an
opportunity to comment. He said if the standard is to be
strictly adhered to and the law does not allow going beyond
a certain limitation, then the permittee is not going to be
able to submit their permit because there will not be room
for the permittee within that air shed. The permittee will
have to stand back and wait until the older industrial
entity goes away or a process is developed allowing them to
fit into the remaining air increment.
MR. VERRELLI stated all regulations proposed by the
department and the permits go to a legislative committee, so
that interest does come to the legislature. There is a
committee that reviews these permits and regulations while
DEC is developing them.
MEAD TREADWELL, DEPUTY COMMISSIONER, DEC, stated the
legislature has given the department authority to protect
public health. The legislature has not looked at that
authority in terms of what the federal government has
determined what public health is. Rather, the legislature
says DEC has the capability to look at Alaska's needs, to
protect Alaskans. Therefore, there is a state's rights
issue as well. He said DEC was also given strong binders
last year in the compromise reached through HB 167. The
compromise requires if DEC does something different than the
federal requirements, DEC must commission a peer review
panel and go through an extensive risk assessment process
which is somewhat expensive. He felt there already is a
strong bind on DEC if the department decides to move forward
and do something the federal government is not doing.
MR. TREADWELL said many times, DEC can see down the road and
determine the federal government is going some place which
DEC does not want to go. If DEC has a regulatory process in
place, the federal government is likely to defer to DEC's
process in some cases, rather than adopt their own. He
pointed out that is what is happening in relation to Valdez.
The federal government is setting air standards for organic
contaminants for marine terminals around the country--
terminals one hundredth the size of the Valdez terminal. He
added the technology the federal government is requiring is
one Alyeska may not be able to meet. DEC can meet the needs
of Alaskans by having a standard in place ahead of the
federal government, which is stronger than what the federal
government has presently. He felt in the end, DEC will be
deferred to and a different, more flexible standard than the
federal standard will be put in place. He said industry is
working with DEC on this issue.
TAPE 94-44, SIDE B
Number 000
MR. TREADWELL stated DEC has been told if they do not have
certain things adopted in the National Toxic
(indiscernible), they will have to defer to a tougher
federal standard. Therefore, DEC went ahead and adopted
some things. At the time DEC adopted them, they would have
been illegal had HB 436 been applied to the water. He
stressed the flexibility has been very helpful.
REPRESENTATIVE JAMES asked if the situation in Valdez should
have been dealt with by the legislature this year.
MR. TREADWELL said that process is one where scientists were
paid hundreds of thousands of dollars by each side, doing
extensive studies making a very difficult determination of
scientific health risk. If the process was tied to a
legislative session, the 120 day rule and delayed for
another year, there may have been further losses of state
flexibility versus the federal government. He felt the
legislature probably does not want to get into that level of
detail. He pointed out that the legislature has passed laws
authorizing a public process to go forward to review health
risks and he added that public process works very well. He
said the legislature has authority to tell DEC to get out of
that business in Valdez and make a determination. He felt
to do it with a law which says the legislature always wants
to be doing that will be very difficult. He gave examples.
He stressed DEC has not abused the flexibility. DEC asked
the sponsor of HB 436 if there were any particular examples
where DEC may have made mistakes and the sponsor could not
give any examples.
Number 055
REPRESENTATIVE GREEN clarified the Lieutenant Governor
signed the air quality bill last week.
MR. VERRELLI stated it was the state implementation plan,
which is not the Title 5 process coming from HB 167.
REPRESENTATIVE GREEN asked if that plan would be affected if
HB 436 became law.
MR. VERRELLI said the one thing which falls under the
transportation control regulation package is the
nonattainment areas of Anchorage and Fairbanks. If there is
construction in that area, HB 436 will affect the plan
because DEC will have to set limits lower than federal
standards since it is a nonattainment area for carbon
monoxide.
REPRESENTATIVE GREEN clarified there are three pollutants
very closely watched in nonattainment areas and asked what
the risk is.
MR. VERRELLI responded there have been seasonal changes in
Anchorage and a haze has built up over the Seward Highway.
He said that haze is (indiscernible) chemical smog. The
smog usually occurs twice a year and gives an indication
that the state is on the threshold because DEC does not
control hydrocarbons, which is part of the ozone package.
REPRESENTATIVE GREEN wondered if the state is working under
the agreement from last year, would the state be more or
less likely to not come under federal regulation with HB
436.
MR. VERRELLI said that is a difficult question to answer
because of the different considerations. He stated as an
overall policy, the federal government likes to see a state
taking the initiative to protect its citizens and is always
supportive because sometimes federal laws are lagging. He
noted the wood stove standards are a good example.
Number 110
REPRESENTATIVE GREEN asked if HB 436 will have any adverse
impact on getting available federal funding.
MR. TREADWELL responded the Clean and Mitigate Air Quality
funds are federal highway funds which have to be committed
to mitigation of air quality problems. When DOT spends that
money, they have to spend it in conjunction with a plan to
improve air quality. DEC is in a bureaucratic never-never
land currently with oxyfuels. The law says oxyfuels should
be used yet they are not being used. DEC may have to defend
that decision in court.
MR. TREADWELL said just because DEC cannot be as stringent
as the federal government does not mean DEC has to be as
stupid as the federal government. Many times the federal
government gives DEC dumb things to do. DEC oftentimes goes
to the federal government and asks them to let the
department manage for the desired result, rather than
managing the way the federal government tells them to. He
continued to discuss the issue. He cannot say the state
will be limited from using federal funds. DEC has thought
about using those funds in conjunction with local
governments. However, asking DEC to work on a standard more
stringent than the federal government will require a long
and unnecessary delay for DEC if the HB 436 process is used.
Number 159
RICK LAUBER, REPRESENTATIVE, PACIFIC SEAFOOD PROCESSORS
ASSOCIATION (PSPA), stated PSPA has not taken a position on
HB 436. He said PSPA participated, as an industry, on the
task force which worked on HB 167. He pointed out that all
major industries were invited to participate on that task
force and most of them did. Out of that work came HB 167
which passed largely intact. He said the concept in HB 436
was discussed extensively by the committee but the majority
of the committee felt this type of legislation was not
needed. The task force felt there were times when there
should be more strict regulations.
Number 200
MR. LAUBER noted the task force realized that before DEC
could impose more stringent regulations, there would be a
review by industry, public, etc. HB 167 resulted from many
compromises. He cautioned committee members that before
they make any significant adjustments, they have the same
type of process and review which was used to put HB 167
together.
Number 221
CHAIRMAN WILLIAMS asked the sponsor if he had been asked by
industry to sponsor HB 436.
REPRESENTATIVE VEZEY stated the impetus of the bill came
from a recommendation from the Governor's Task Force on
Regulatory Reform. He said the general statement that state
regulations should not exceed federal standards is very
generic and broad based. He explained given the time
restraints, this was the only area he had time to address
because the subject matter of the clean air bill was still
fresh in people's minds. He said there was no push by any
individual nor was there any specific problem which
instigated HB 436, but rather a general concern of many
people in very broad terms.
CHAIRMAN WILLIAMS stated since the House Resources Committee
is the last committee to hear HB 436, it will be held for
further consideration.
ANNOUNCEMENTS
CHAIRMAN WILLIAMS announced the committee will meet on
Wednesday, March 30 at 8:15 a.m. to hear HB 515.
ADJOURNMENT
There being no further business to come before the House
Resources Committee, Chairman Williams adjourned the meeting
at 11:00 a.m.
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