Legislature(1995 - 1996)
04/17/1996 08:04 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
HB 342 - WATER QUALITY STANDARDS Number 1274 REPRESENTATIVE NORMAN ROKEBERG, prime sponsor of HB 342, referred to work draft CSHB 342, Version G, and reported that the subcommittee consisting of Representatives Austerman, Davies and Ogan had met and reviewed the work draft dated April 9, 1996. He explained the changes as follows: Page 1, line 7, add: "in writing" by the Environmental Protection Agency. Page 1, line 8, add: "or by substantially equivalent methods approved by the department." REPRESENTATIVE ROKEBERG said, "This is an important adoption right now. It gives the department additional flexibility in terms of looking at the methodologies to be used in establishing the water quality criteria." Number 1342 REPRESENTATIVE ROKEBERG continued to explain the changes. Page 1, line 14, add: "Promptly, but no later than 12 months," REPRESENTATIVE ROKEBERG said, "This particular provision gave a standard to the department that they had a 12-month period in which to make adoptions of any regulatory changes made by the federal Environmental Protection Agency and also added the word `promptly' in case the question was, `why do we have to wait 12 months?' So, the word `promptly' was a spur to do them as soon as possible basically, but also gave them a deadline of 12 months, which we feel is adequate in order to perform that task." REPRESENTATIVE ROKEBERG referred to page 1, line 15, and said following the language, "after the effective date of a change" the original language was "reduction in". REPRESENTATIVE ROKEBERG said, "There has been some controversy about this, but people have to understand that a change can go both ways, a reduction can only go one way. This gives the department additional flexibility to change." Number 1401 REPRESENTATIVE ROKEBERG said the next change was on page 2, lines 2 and 6, delete "reduction", add "change". This relates to the actions on the part of the federal government. REPRESENTATIVE ROKEBERG continued that on page 2, line 10, add "maintain the state's aquatic productivity;". He explained this was done at the request of the Department of Fish and Game to make sure that those considerations were taken into account when applying water quality standards. Number 1436 REPRESENTATIVE ROKEBERG referred to page 2, lines 15 & 16, the words "the natural condition of the water" were inserted. He emphasized this is an important addition to subsection (4) and wanted to remind the committee that in adopting water quality standards, the department "may not require discharged water to be of a higher quality, in a more restrictive use classification, or otherwise cleaner than the natural condition of the water into which the discharge is made." He said this is the receiving water and recalled this goes back to an earlier discussion between the words "existing" and "natural." Natural is intended to mean the natural condition of the water or waterbody, not an existing condition. Whereas, an existing condition could have been a body of water which was polluted by human use and therefore that should not be the standard of the receiving water; it should be the natural condition of the water. Number 1490 REPRESENTATIVE ROKEBERG continued to explain that this is very important to understand that we shouldn't require that a better than natural condition of water be the criterion that the permit is granted under. Therefore, we shouldn't be cleaning up streams that are already dirtier by nature and not by man and that's the distinction. CO-CHAIRMAN GREEN said, "Which could though in some cases be cleaner than is existing." Number 1529 REPRESENTATIVE ROKEBERG referred to page 3, line 4, and said the words "proposed standard or regulation" were clarified. REPRESENTATIVE ROKEBERG said on page 3, lines 6 and 12, delete "exposure profiles" before the words "hydrologic conditions". Number 1541 REPRESENTATIVE ROKEBERG noted that in terms of the review process on page 3, line 16, insert "by August 1, 1997," to give the department adequate time, well over a year, in which to make their review, and then on line 24 the deadline was set starting at the legislation session, January 1, 1998, to report to the legislature about how they have done under this policy. Number 1591 REPRESENTATIVE ROKEBERG pointed out these were the changes made in the subcommittee. He said there was substantial input and he thanked Representatives Austerman, Ogan and, in particular, Representative Davies for their participation. He stated his office received a fax at 7:00 p.m. the previous evening from the Department of Fish & Game. Also, approximately eight minutes ago, he received copies of amendments from the Department of Environmental Conservation. He said based on the importance of this legislation and the lateness in the session and also, after a period of almost two weeks that this bill had been in subcommittee, to receive these amendments at the 11th and 59th hour, he was going to oppose the adoption of those amendments. He noted this bill has a referral to the Finance Committee because of its importance and he would give due consideration to the recommendations and suggestions from the Departments of Fish and Game and DEC as to their amendments. He thought this bill had had sufficient work in this committee and he appreciated the Chairman's interest in it. I believed that Marilyn Crockett was on-line if the committee had any questions. CO-CHAIRMAN GREEN asked whether there were questions of the sponsor or about the proposed changes. Number 1689 REPRESENTATIVE DAVIES related that he had brought to the chair of the subcommittee a couple of concerns yesterday, and wondered if the committee was going to deal with those. CO-CHAIRMAN GREEN had not seen the amendments. Number 1712 REPRESENTATIVE AUSTERMAN apologized, stating that he had not heard back from Representative Davies and had been uncertain whether to pursue them or not. Number 1729 REPRESENTATIVE DAVIES said he wanted to propose three minor changes on page 3. REPRESENTATIVE ROKEBERG interjected that the committee had not adopted the proposed committee substitute, version G. Number 1755 REPRESENTATIVE DAVIES moved to adopt 9-LS1141\G as the working document. Hearing no objection, it was adopted. Number 1785 REPRESENTATIVE DAVIES offered the following amendment: Page 3, line 3, Delete: "prepare a written analysis of" Insert: "consider in writing" REPRESENTATIVE DAVIES explained that the proposed amendment gives the language more clarity with respect to the construction of the language and removes the word "analysis." That is the substantive part of it. The consideration of the economic feasibility would be there. He said, "I think we heard testimony that the department has strong concerns that they do not have all of the economic information because of not having access to the proprietary information of the companies potentially involved. This would allow them to consider the economic, as far as they could, but the consideration might not be described as an analysis." Number 1908 CO-CHAIRMAN GREEN asked for questions on or objections to the proposed amendment. Hearing no objection, it was so ordered. Number 1923 REPRESENTATIVE DAVIES offered the following amendment: Page 3, line 9, Following the word "welfare;" Add: "to maintain the state's aquatic productivity." REPRESENTATIVE DAVIES said this amendment would make the language consistent with the language on page 2, line 10. Number 1963 REPRESENTATIVE ROKEBERG agreed and added the subcommittee had just failed to include that language. CO-CHAIRMAN GREEN clarified that the semicolon would follow the word "productivity." Number 1980 CO-CHAIRMAN GREEN asked if there were any objections the amendment. Hearing none, the amendment was adopted. Number 1991 REPRESENTATIVE DAVIES referred to Sec. 2. REVIEW OF REGULATIONS and suggested that it read, Sec. 2. "TRANSITION REVIEW OF REGULATIONS." CO-CHAIRMAN GREEN asked if there was objection to the amendment. Hearing no objection, it was so ordered. Number 2041 REPRESENTATIVE PETE KOTT referred to page 3, lines 24-26: "(b) the Department of Environmental Conservation shall, by January 1, 1998, report to the legislature concerning its review and proposed revisions required under (a) of this section" and asked the sponsor to explain the intent. He inquired if a briefing by the department to the House Resources Committee would satisfy the report or is it a written report? Number 2069 REPRESENTATIVE ROKEBERG thought a written report confirming their activities would be adequate. He said perhaps a meeting with the House Resources Committee to update them or deliver the report without an exhaustive amount of testimony would be adequate. He didn't envision a major, burdensome and costly situation. The idea is a monitor to check the progress and to see at that time if any statutory revisions were needed or if the department had discovered any problems in the implementation. Number 2139 CO-CHAIRMAN GREEN suggested the date should be January 15, because the legislature doesn't convene generally, until the first week. During Gubernatorial elections, the legislature doesn't convene until the second week. REPRESENTATIVE ROKEBERG assented saying that January 31 may be even more appropriate. Number 2175 CO-CHAIRMAN GREEN confirmed that Representative Rokeberg was proposing an amendment to change "January 1, 1998" to January 31, 1998," which is an addition rather than a deletion. Hearing no objection, it was so ordered. Number 2193 REPRESENTATIVE KOTT reminded the committee that over the last year and a half, the legislature has taken a different approach to annual reports. He said, "I hope that this does not fall into an annual report category, where we are, basically, inundated with another 50-page document that most of us probably will not read in the first place. If that is going to be the case, I'd suggest that we follow similar lines that we have established with annual reports and just have the department make it available to us. If we are going to a written format, I would much rather see the department come before the Resources Committee and just give us an oral briefing on where they are at with the updates." Number 2245 REPRESENTATIVE ROKEBERG pointed out this is a one-time report, not an annual report. REPRESENTATIVE KOTT remarked that he had a number of one-time reports that ended up in File 13, because of time constraints he didn't have the opportunity to sift through 40-50 pages. It's easier when the department comes in with the report and gives a briefing or executive summary in a couple of minutes. He felt it was more meaningful to get that kind of treatment than to have a report dropped on his desk that he wouldn't have a chance to read until the interim. Number 2310 REPRESENTATIVE ROKEBERG stated he had no objection to a language change whereby the report would be submitted to the chairmen of House and Senate Resources Committees. Number 2332 REPRESENTATIVE AUSTERMAN said it was his understanding that changes were made to subsection (b) so that on January 31, 1998, all the legislature wants to know is have those changes worked and is everything going according to schedule; it doesn't say anything about the department submitting a written report. He pointed out that paragraph be moot after January 31, 1998, so didn't see a real problem with that. Number 2379 REPRESENTATIVE KOTT appreciated Representative Austerman's comments and suggested that the committee add language that "the department must brief the House and Senate Resources Committee by January 31, 1998. He just didn't want any more written material...(CHANGE TAPE) TAPE 96-58, SIDE A Number 001 REPRESENTATIVE WILLIAMS contended that the industry reads the written reports and they come before the legislature and tell us how the department is doing. He, too, couldn't read everything that comes across his desk, but industry does read those reports and they do call the legislature's attention to any problems. Number 070 REPRESENTATIVE DAVIES stated, "If the report is made available by that time, we always, in Resources anyway, have the Department of Environmental Conservation in front of us for overviews. It is always the prerogative of the legislative committee to ask for a briefing on a particular topic, in that context, or in the context of a special meeting. I am sure that the DEC would honor that request without any problem. I think as long as the report is there, if we want to hear from them, we can just ask them to come and talk to us." CO-CHAIRMAN GREEN asked if there was discussion or proposed amendments, conceptual or otherwise. Number 136 REPRESENTATIVE KOTT suggested that the Department of Environmental Conservation come before the House Resources Committee by the January 30, 1998. CO-CHAIRMAN GREEN concurred stating that Representative Kott's point is well made. He asked if there were other questions of the sponsor. Hearing none, he announced the committee would begin taking testimony. Number 209 JANICE ADAIR, Director, Division of Environmental Health, Department of Environmental Conservation, noted that she had made a note for January 30th on her calendar. She said, "I do apologize to the bill's sponsor for in delay in getting our proposed amendments to the draft committee substitute. We just received the bill on Monday and it took us a while to look at it with our attorney. The one page that you have, kind of reflects our hallway discussion and includes the concerns of the Department of Fish and Game, as well. MS. ADAIR explained, "What I would like to do is go through the things that DEC has and then I will try to address those from fish and game, but I made need to get Geron Bruce up here to more fully explain them." Number 267 CO-CHAIRMAN GREEN notified the teleconference network that SB 199 would not be heard at this meeting. Number 300 MS. ADAIR began her explanation of the proposed amendments: Page 1, line 12, add: (c) Except when setting standards for shellfish growing areas pursuant to AS 03.05.011 and except as provided in AS 46.03.087" She said, "We propose on page 1, line 12, to make an exception for the standards that the department sets for shellfish growing areas under our authority in Title 3. Shellfish growing areas, by necessity, need to have a more stringent standard, particularly, for fecal coliform. Shellfish are filter feeders, the contamination that may exist in the water accumulates in their viscera. They are eaten raw or only lightly cooked so they do not get to the temperature to kill any bacteria. In order to have a classified shellfish growing area that meets the requirements of the National Shellfish Sanitation Program, fecal coliform and other contaminates have to have a lower level. We just would like recognition here that in those areas, we will have a more stringent standard than what you might find in other, more generally, used waterbodies." CO-CHAIRMAN GREEN clarified that the amendment, as written, would take care of that. MS. ADAIR acknowledged that was correct. Number 376 MS. ADAIR explained the next amendment was on Page 1, line 14. Delete: "Promptly, but no later than 12 months," Insert: "As soon as practicable" She stated, "When the Environmental Protection Agency increases their requirements, they don't necessarily require that we immediately adopt them, or that we adopt them within 12 months. Sometimes, it's alright with the EPA if we just put those into the next round of the permit revisions, which could be as long as five years. We do recognize, though, that if there is a reduction or elimination of a federal requirement that industry would be most interested in having us do that as soon as practicable. We see this as a way to cut that problem. They will certainly be watching us to make sure that we do adopt any reductions or eliminations in federal regulations as soon as we possibly can. But we don't think that we need to also adopt any increases right away or necessarily have this drive our priorities. There may be legitimate reasons to wait, it may not be that big of a deal. It may be a minor change, it may be something that we can roll into something else that we're going to be doing in 18 months. So, we would just like that flexibility to do it as soon as practicable; counting, of course, on the Alaska Oil and Gas Association and other industry members to be watching us to make sure that we really follow through." Number 477 MS. ADAIR explained the next proposed amendment was on page 2, line 1: Delete: "standard" Add: "criteria" MS. ADAIR said, "This refers to water quality standards set by the Environmental Protection Agency. The EPA actually doesn't set water quality standards, they have water quality criteria. So, this is a corrected change where we delete the word `standard' and replace it with `criteria.' That is a significant change as far as what the EPA actually does. We think it's important. It does not change the impact or the goal of the bill, it's just a clarification to make it correct." Number 518 MS. ADAIR continued her review of the proposed amendments: Page 2, line 10 Delete: "maintain the state's aquatic productivity;" Insert: "the environment" MS. ADAIR remarked, "The sponsor, I believe, stated that the term, `state's aquatic productivity' was added at the request of the Department of Fish and Game. That was because it had been proposed at the subcommittee level to delete the term, `and the environment.' We would like to see that changed back so it would say, ` protect human health and the environment.' That is common terminology used throughout Title 46 and it does encompass that concept of the state's fish resources. It could be other things that may depend on a waterbody." Number 563 CO-CHAIRMAN GREEN clarified that the amendment replaced the language, "maintain the state's aquatic productivity" Number 600 MS. ADAIR continued to explain the proposed amendments: Page 2, line 14, at the beginning of subparagraph (4) Add: "when site specific information is reasonably known or available" MS. ADAIR stated, "We don't always have the information on the natural condition of a waterbody and we wanted to clarify that this wouldn't require us to go out and generate information. This usually comes into play when you have a site specific water quality standard and where the natural condition is important. So, we just wanted to make that clarification." Number 665 MS. ADAIR her review of the proposed amendments: Page 2, line 28, amend subsection (b) to read: "(b) The department shall, when adopting a standard or regulation under (a) of this section provide with the public notice draft of the proposal a written explanation that describes the basis for the proposal which shall include (1) the department's consideration of the economic feasibility of the proposal; (2) the department's consideration of the technological feasibility of the proposal; (3) if applicable, a finding that (A) the water quality standard, discharge standard, or method of measurement is reasonably required to protect human health and the environment; and (B) hydrologic conditions or discharge characteristics are significantly different in the state or in an area of the state from those upon which the corresponding federal standard, if any or regulation is based." MS. ADAIR stated, "We are proposing a revision on page 2, line 28, subparagraph (b) which dictates how the department will adopt a more stringent water quality standard, or a standard where there is no federal criteria. The reason here is, as written, this requires that we hold a public hearing. The Administrative Procedures Act does not require an agency to hold a public hearing. There may not be sufficient interest to hold one and yet they are very expensive. So, we would like to eliminate that requirement. If it's necessary, if the public requests a public hearing, we would simply follow the Administrative Procedures Act, and do that. But We do recognize that there is some information that people would like to have available with the public comment draft of the regulations." Number 714 MS. ADAIR proceeded, "Representative Davies did discuss this in one of the amendments that has been adopted, takes care of this concern. But, as drafted, on page 3, line 3, before Representative Davies' amendment was adopted, we would be required to prepare a written analysis of the economic feasibility of the proposed standard. That's something that we just don't feel that we can be successful at doing. We do agree that we need to consider the economic feasibility. It may be that a given industry sector would do an economic feasibility for our use, and we absolutely should consider that, and we should let people know what we've thought about it so they can correct it or give us additional information. But we don't have the kind of staff that can do an economic analysis. We have engineers and environmental specialists. So, what we propose is that, by giving you the language here, it would require that we demonstrate, in writing, and provide this in a memo form, perhaps with the public draft notice, that we have considered the basis for the proposal; that we've considered the economic feasibility and what that is, the consideration of the technological feasibility and, if applicable, a finding that the water quality standard, the discharge standard or the method of measurement is reasonably required to protect the human health and the environment, and that the hydrologic conditions or discharge characteristics are significantly different than the federal standard. So, it gets to the same kind of information - a little bit different and we think something that we can actually be successful at doing." Number 823 CO-CHAIRMAN WILLIAMS expressed concern about not being able to have the economic feasibility (indisc.) proposed and brought before us. He remarked, "I appreciate what you are saying that department doesn't have the expertise for this or that, but there are people. And if it is going to hurt the economic ... of a company, then I think we should understand that and we should find out how it's done and you're saying here now, that you will have that study done?" Number 978 MS. ADAIR replied, "Representative Williams, the way that this would work, as we have proposed it, is that we would consider the economic feasibility of the proposal if a company or an industry sector did their own analysis of the proposal, then yes, we would have to consider that. If no one did, because, maybe it isn't that big of a deal or it's not very important, or it doesn't really have a big impact, then we would look at, to the best of our ability, how we think this would impact industry. We do this in our regulations now, particularly where we have fee based regulations and we say, this is what we think it's going to cost to do this. And, this is why. Sometimes, we find out that we're very wrong, and we go back and we change our proposal accordingly. The solid waste regulations are a perfect example of that. We do the best that we can and then we rely on the public comment that we get back, the information that we obtain from industry to further that and to flush that out better. We would absolutely consider that and explain how we considered it, what we thought about it, what we did and how our proposal took that into account. It wouldn't be an economic analysis as we are reading it, in that more formal sense of the word, because it's just not something we can do." Number 959 CO-CHAIRMAN WILLIAMS wanted assurance that it is taken into consideration. He said, "If we have to be stronger here, I would like to hear things that the government does and doesn't take into ... the human factor, also, the economics factor." Number 978 MS. ADAIR remarked, "We do too; we agree with that. That's why it's important to us that this be done in a way that we can actually be successful at accomplishing it. And, we feel that this does that and we can accomplish that goal." Number 1001 CO-CHAIRMAN WILLIAMS commented, "There are times when a company does not have the ability to pay for an economic study and if we were going to amend this, as such, then I would like to see a little stronger language in there." Number 1037 MS. ADAIR continued her review of the proposed amendments: Page 3, delete lines 24-26. MS. ADAIR stated, "Mr. Chairman, we propose also, to delete the reporting requirement. As Representative Kott said, there are a lot of reports that come to the legislature. I think, just the term `report' connotates something a little bit more massive and a little bit more labor intensive than perhaps the word `memorandum' or `briefing' might indicate." MS. ADAIR continued, "The Administrative Procedures Act requires that we send copies of any regulatory changes to all standing members of the legislature, all members of the Administrative Regulation Review Committee and all members of both resources committees. So, any proposal that we would have as a result of Section 2, - some of you may get two or three copies of it because that's what the Administrative Procedures Act requires. We are always available to answer any questions, we certainly would be available on January 30 or any other day next session to come forward and tell you how we have done this, what we have found, what the proposals have been. But, in an attempt to try to minimize the fiscal impact of this legislation, we would propose to eliminate lines 24 through 26 on page 3." Number 1097 CO-CHAIRMAN GREEN recalled that Representative Kott mentioned a briefing to the joint sessions of the resources committees. He asked if that would that be permissible? MS. ADAIR stated the department wouldn't have a problem with that, if it were requested. Number 1119 CO-CHAIRMAN GREEN assessed the list of proposed amendments stating that he was not sure the committee was ready to accept each one or the sponsor's position. He suggested the committee go back through the proposals and asked Representative Rokeberg to come forward. Number 1134 MS. ADAIR offered an additional amendment concerning the measurements for sediment. Page 1, line 9, Following: (b) add: "Except as otherwise provided in AS 46.03.087," MS. ADAIR noted, "There is the idea, on page 2, that we may have a different method if we go through a process, but there is no exception on line 9 to that recognition on page 2. We would propose at line 9 in the beginning that we add "except as provided in AS 46.03.087" because that does recognize then that in that section at subparagraph (3) which is at line 24, page 2, that there is a process that the department can go through if we're going to do something different." CO-CHAIRMAN GREEN suggested that the committee start with that amendment. Number 1184 REPRESENTATIVE ROKEBERG said that having had a few more minutes to look at these he had not changed his position on these amendments. He added, "I think there is a situation where certain of these (indisc.) and it does have another committee of referral. Frankly, my view of these amendments is that it totally eviscerates this bill and makes it valueless (indisc)." He felt these amendments were a clear attempt to sabotage the intent of the bill. REPRESENTATIVE OGAN agreed, "I feel that it is highly irregular for these amendments to be brought at this time. This bill was assigned to a subcommittee with the purpose of working out these problems. The department did not bring these problems forth during that subcommittee process. This late in the game, I would interpret this as being a tactic to delay or kill the bill. I would suggest that we pass the committee substitute, version G, out of committee and allow the department and the sponsor of the legislation, to work out their differences and draft a committee substitute for the next committee of referral." Number 1275 CO-CHAIRMAN GREEN understood the discussion about the lateness of the proposed amendments and the possibility of addressing them at the next committee of referral because of the deadline. These are issues that should be considered in this committee but if we do that, we will miss the deadline. Number 1287 MS. ADAIR interjected, "It was our goal to eliminate the fiscal notes on this bill so that it would not have another committee of referral. It wasn't our intent to try to kill this bill. As I stated, we only got the draft committee substitute on Monday. Many of the concerns that we brought forward in the subcommittee were not addressed in the draft CS. We turned it around as quickly as possible and tried to do it in a consensus fashion. We worked with Alaska Oil and Gas Association and the Resource Development Council yesterday on these amendments. I was at my office last night until about 8:00 p.m. on this and faxed them to Marilyn Crockett. It was our hope that we could then bypass the next committee of referral and instead have it go right to House Rules. So, I do not want anyone to think that we're trying to kill this bill or derail it in anyway. That's not the intent at all. We're trying to make something that we can work with, that we can be successful at and still address the concerns as they have been expressed to us, as we understand them." Number 1345 CO-CHAIRMAN WILLIAMS wanted to know if the department had participated in the subcommittee meetings. REPRESENTATIVE AUSTERMAN responded, "Yes, they were." CO-CHAIRMAN WILLIAMS asked how long the bill had been in subcommittee - two weeks? Number 1365 MS. ADAIR replied that she had participated in one subcommittee meeting via teleconference at which the department had proposed language and waited for the committee substitute to come out as a result of that meeting. She added that's the committee substitute that she got on Monday. Number 1396 CO-CHAIRMAN GREEN received word from the Office of the Speaker that the committee had an additional 30 minutes for its meeting. He said, "We have a 30-minute reprieve, maybe we should get to the bottom of this." CO-CHAIRMAN GREEN summarized that Ms. Adair had been involved with the subcommittee, had indicated the department's desires, she would receive the subcommittee committee substitute and if there were additional comments, she would make them at this hearing. MS. ADAIR clarified that she participated in only one subcommittee meeting and didn't know if there were others. She said, "We did have proposed language and, yes, we thought we would see the CS with a little bit more time. We did find out yesterday that the bill would be brought back up today." Number 1462 REPRESENTATIVE ROKEBERG said, "Mr. Chairman, I was not aware -- my concern is, I was under the impression from the input we had at the subcommittee meeting that we had met almost all the concerns that the department had brought to our attention at that time. That's the concern I had. I apologize if I didn't understand correctly but Representative Davies was there -- really, I thought that we had pretty well covered most of the things. There may have been a couple of technical points that we didn't cover -- that could well be the case, but there was a number of major, substantive amendments here and I thought discussed them." Number 1496 CO-CHAIRMAN GREEN asked if the sponsor was aware that by doing these amendments there would be a zero fiscal note which would allow bypassing the House Finance Committee. Number 1510 REPRESENTATIVE ROKEBERG appreciated that objective and added that by creating a zero fiscal note, the department is creating a zero bill. Number 1522 CO-CHAIRMAN GREEN asked the subcommittee chair, Representative Austerman, if he was aware of the desires of the Department of Environmental Conservation and were these issues discussed at the subcommittee meeting? Number 1528 REPRESENTATIVE AUSTERMAN explained that he had not attended the full subcommittee meeting, but he had indicated to Susan Braley that the subcommittee would not meet until after the Easter break. He asked her, at that time, to bring written comments on all the changes they wanted in that bill. He recalled that the DEC comments at that meeting were verbal. REPRESENTATIVE AUSTERMAN did not want to cast any dispersions on the department but he felt they had had ample time to submit their concerns in writing. He said, "To continue to wait until we bring forward new versions, based upon conversations that we had and then continue to want to change those, to me, appears to be a stalling tactic. I think we should move this bill out of committee." Number 1602 CO-CHAIRMAN GREEN asked if there were any members of the Alaska Oil and Gas Association in this meeting? REPRESENTATIVE AUSTERMAN replied, "They were on teleconference." Number 1611 MARILYN CROCKETT, Assistant Executive Director, Alaska Oil & Gas Association, responded, "We did participate in the April 10th teleconference of the subcommittee. That was the second meeting of the subcommittee that was held. We presented written proposals at both of those subcommittee meetings. The version G that you have before you today, from our perspective and from my notes and recollections from the last meeting, the April 10th meeting of the subcommittee, I believe incorporates the tentative agreement that all of us reached at that time, without having the actual work in front of us, obviously. There were changes made during that teleconference on the 10th. I believe this version, for the most part, represents the agreements that we reached on that date." MS. CROCKETT continued, "From AOGA's perspective, this bill as it's drafted today, with some of the changes that have been suggested at the committee meeting today, meets the goals and objectives that we wanted to see in the original HB 342." Number 1680 REPRESENTATIVE KOTT asked if these issues had been brought before the subcommittee. Number 1692 MS. ADAIR said, "All but the shellfish were. We talked at length about the problem with the economic analysis, which is one of our biggest concerns. The shellfish was one that frankly I didn't think about until Fish and Game testified before the subcommittee." Number 1710 REPRESENTATIVE DAVIES clarified that there was one subcommittee meeting. He said, "We didn't have formal language that we all walked out of the meeting hand-in-hand, saying that this is what we're going to go forward with, so when we got back the CS that's in front of us, it was a very good faith effort on the part of the sponsor to translate this into a piece of legislation. I believe that it got 90 percent of the discussion. But there were still a few things and as you see, I had to bring forward a couple of amendments of my own so that I thought the committee substitute comported more closely to what we discussed. And there really was not - because we didn't have a second meeting of the subcommittee - there wasn't an opportunity to review the legislation in the form of legislation so that all the i's could be dotted and the t's crossed. I believe that most of the issues that are proposed here in the DEC amendments are clarifications of discussions that we actually had at that first, and only, subcommittee meeting. So, I don't think that it's out of place that DEC would come back at this point in time with sort of their clarifications of the things that we put into the bill in response to the discussions we had at the subcommittee level. I think that this is in fact, the only opportunity that's been had to do that and we adopted a number of amendments that I proposed and in that same process, that we certainly should consider DEC's considered look at the CS." Number 1804 CO-CHAIRMAN GREEN presumed for the sake of continuity, that committee substitute, Version (G), represents a fair interpretation of the subcommittee's work. He noted the committee now had before them suggestion for several amendments, which would be considered. Number 1818 CO-CHAIRMAN GREEN brought forth the amendment on page 1, line 9, and asked if committee members understood the amendment or if there was any discussion? Number 1830 REPRESENTATIVE KOTT wondered if the DEC had discussed this amendment with the Alaska Oil & Gas Association. MS. ADAIR explained the proposed amendment was a clarification suggested by the Department of Fish and Game. The department thought it made sense because of the way the rest of the bill is written. Also, there is that recognition in the section on special procedures on page 2, line 24, "regulation that allows the use of a method that is not substantially equivalent..." So, the department thought it would be a good clarification. Number 1867 REPRESENTATIVE ROKEBERG remarked that the amendment speaks "right to the heart of the bill." He noted it actually has to do with the controversy between settled solids and suspended solids. This language is requested so the department can do whatever it wants to do in terms of its methods of measurement and determine whether they want to consider settleable solids as well as suspended solids. The legislation, as drafted in the committee substitute, sets the standard for settled solids not suspended solids. REPRESENTATIVE ROKEBERG recommended that the department come up with the idea and the methodology that meets the concerns of the people in the mining industry and the fishing industry and come back next year and amend the statute. Number 1919 CO-CHAIRMAN GREEN noted that the paragraphs before and after the language in question have that exception. REPRESENTATIVE ROKEBERG said if there is any deviation from the language in Section 1, subsection (b), the mining industry will remove their support of this bill. MS. ADAIR stated that certainly wasn't the intent. The department would still have to go through the special procedures to do something different; they just saw it as a clarification. CO-CHAIRMAN GREEN questioned whether the DEC felt the Imhoff Cone Method would satisfactorily put the water... Number 1974 MS. ADAIR interjected that she is not a water quality expert. She thought that was the method used today and the method that is planned to be used. She didn't think that was the issue. It was her understanding that as the department reviews this, if there is some other method that is approved by EPA, that the department thinks would get them to a better result, then they would go through the special procedures on page 2 that give people the opportunity to comment on whether or not that was appropriate. Number 2000 REPRESENTATIVE ROKEBERG maintained his objection. Number 2011 REPRESENTATIVE AUSTERMAN reported on an earlier discussion on this issue and related his interpretation that there is a problem if the language is changed. He deferred to Representative Davies. Number 2032 REPRESENTATIVE DAVIES felt that both parties were correct. He remarked, "Logically, the exception language should be provided here, but in fact if you talk to the members of the mining industry, they are violently opposed to having that option in there." He did not recommend that the committee put this kind of specificity in the statute and added they were writing water quality regulations in the statutes by doing this, and he thought that was a bad thing to do. REPRESENTATIVE OGAN recommended calling for the question. Number 2074 CO-CHAIRMAN GREEN noted that the amendment had not been offered by a member of the committee. He asked if there was an offer of an amendment as discussed the representative from the DEC for page 1, line 9? Hearing none, the amendment was not offered. Number 2088 MS. ADAIR referred to the amendment on page 1, line 12, adding the language, "(c) Except when setting standards for shellfish growing areas pursuant to AS 03.05.011 and except as provided in AS 46.03.087." MS. ADAIR explained, "This would allow us to continue to set different and more stringent standards for shellfish growing areas which is required in the National Shellfish Sanitation Program which we are required to follow under AS 03.05.011 to sell commercially grown shellfish interstate." Number 2104 REPRESENTATIVE ROKEBERG said that conceptually, had no problem with the amendment but wanted to know what the citation .011 was and didn't know what the impact of the language was of the language that was not italicized. MS. ADAIR stated the language in italics is all that is being added. REPRESENTATIVE ROKEBERG asked about the citation .011. MS. ADAIR explained that was simply the DEC's authority over seafood, food processing and other kinds of ... meat, dairy. Number 2134 REPRESENTATIVE ROKEBERG had no objection to the amendment. REPRESENTATIVE OGAN moved the amendment. Number 2171 CO-CHAIRMAN GREEN explained the amendment was to add "(c) Except when setting standards for shellfish growing areas pursuant to AS 03.05.011 and except as provided in AS 46.03.087". He asked if there was objection to the amendment. Hearing none, the amendment was adopted. REPRESENTATIVE AUSTERMAN wondered if the chairman considered that Amendment 1? CO-CHAIRMAN GREEN said there had been several others; it would be considered Amendment 4. Number 2178 REPRESENTATIVE ROKEBERG referred to the amendment on page 1, line 14, which removes "Promptly but no later than 12 months" and replaces it with "as soon as practicable" and said he had worked with the AOGA, and he would be happy to work with the department, if there was some question about the draft of it. He said, "If an applicant requests `speed up' and we put a three month deadline or something, I am willing to work with the department on this, but right now, we don't have time to craft it, so I'd be happy to work with the department to get some language that would accomplish the same thing here." CO-CHAIRMAN GREEN assumed then that the sponsor would like to leave the committee substitute the way it is. REPRESENTATIVE ROKEBERG replied, "At this point, yes." Number 2217 REPRESENTATIVE OGAN informed the panel that according to his notes, the issue was raised in subcommittee but not addressed in the bill. Number 2230 REPRESENTATIVE AUSTERMAN emphasized that not everything that was wanted by the DEC or the AOGA would be (indisc.) could not be all encompassing to all people. He believed there were some things that the legislature would have to make the decisions on. Number 2244 MS. ADAIR referenced the handwritten amendment to delete "standard" and add "criteria," on page 2, line 1 and said the department see this as a technical amendment only. It was something their Attorney General had pointed out, but hadn't had the benefit of reviewing this until this morning. However, she believed this to be a very important change since the federal government adopts criteria that the department then adopts as a standard. CO-CHAIRMAN GREEN offered the amendment as Amendment 5. REPRESENTATIVE ROKEBERG said he had no objection. REPRESENTATIVE DAVIES questioned the use of the word "standard" throughout the bill asking if every other instance of the word "standard" was correct usage. MS. ADAIR thought that was correct. She said, "We have standards, so any place we talk about state water quality standards, that is correct. If you talk about federal water quality, you need to talk about criteria." Number 2300 CO-CHAIRMAN GREEN asked if the committee had objection to the amendment. Hearing none, Amendment 5 was adopted. Number 2306 MS. ADAIR said, "This one, the proposal that had been drafted for the subcommittee's consideration, had public health and the environment. At the subcommittee, the copy that we got had `and the environment' crossed out so it would just have been a human health standard. The Department of Fish and Game said we have to have more than just a health standard, how about `maintain the state's aquatic productivity.' We would propose that we go back to human health and the environment. It gets to the same place but it just is consistent with other portions of DEC's statutes in Title 46. So, again we don't think it's doing anything significantly differed, it is question of consistency with other portions of our statute." The amendment is as follows: Page 2, line 10 Delete: "maintain the state's aquatic productivity" Insert: "the environment" Number 2340 REPRESENTATIVE ROKEBERG recalled this issue was discussed in subcommittee and understood that a compromise had been reached because of testimony relating to inclusiveness of the environment. He stated, "I would be willing to talk these people again about that, but I have no comfort level accepting that. I thought we have made an accommodation, particularly, as it related to the Department of Fish and Game's concern." Number 2363 REPRESENTATIVE AUSTERMAN remembered that the language "maintain the state's aquatic productivity" was put forth in subcommittee. Now the committee was being asked to take it back out. Number 2370 MS. ADAIR stated, "This was at the request of Fish and Game. They brought up the issue but I understand that they are now comfortable with the changes made by Representative Davies' amendment that puts it into the other part of the bill. So, if they are okay with it, we can live with the inconsistency." Number 2384 GERON BRUCE, Legislative Liaison, Office of the Commissioner, Alaska Department of Fish and Game, commented the department is comfortable with the language, especially, since Representative Davies' amendment considered it in another part of the bill. However, he wanted to make clear that they were talking about the aquatic productivity of the individual waterbodies in the state. He said, "We expect to be maintaining those. We are not talking about a general statement. We want to be able to maintain, as a part of the water quality regulations, aquatic productivity of individual waterbodies as well as the state's waterbodies, as a whole." Number 2409 CO-CHAIRMAN GREEN remarked the department could work with the sponsor. The chairman asked for the next amendment. Number 2420 MS. ADAIR referred to the amendment on page 2, line 14, which adds: "when site specific information is reasonably known or available" to the beginning of subparagraph (4). She remarked, "As I understand what fish and game said and in talking with Susan Braley, with our water quality program, that we don't always have the condition of the natural waterbody. So, when we have it, then this comes into play." Number 2440 MR. BRUCE related that this is where the department was trying to help with the fiscal note. If the information is not available, but they are required to go out and get it and make a demonstration, there will be very significant cost associated with that. He added, "So, we are trying to say, if you want to reduce the cost, then provide us the flexibility to work with the information that is available; don't require us to go out and generate new information." Number 2486 CO-CHAIRMAN GREEN remarked that adding the language to the beginning of (4) on page 2, line 14, reads funny. MS. ADAIR agreed that placing the language at the end would read better. Number 2468 CO-CHAIRMAN GREEN offered the amendment as Amendment 6. Number 2476 REPRESENTATIVE ROKEBERG said, "This is a land mine amendment. I appreciate the statement by the department to make this a zero fiscal note but what they are doing here is suggesting that the burden of proof, by subsection (4), shifts over to the Department of Environment Conservation ... (End Tape) TAPE 96-58, SIDE B Number 001 REPRESENTATIVE ROKEBERG continued ... "I would be happy to sit down here. If we can have a modifier where a permittee may have some requirement to provide some of this data and to assist the department, maybe we can modify that. But as proposed, I just seriously object to this." CO-CHAIRMAN GREEN noted there was a motion on the floor to which an objection had been raised. He asked if the objection was maintained. REPRESENTATIVE OGAN maintained his objection. CO-CHAIRMAN GREEN asked for a roll call vote. Number 045 Representatives Davies, Kott, Nicholia, Ogan and Green voted in favor of Amendment Number 6. Representatives Austerman, Long and Williams voted against Amendment Number 6. Representative Ogan changed his vote from yes to no. NOTE: (The Committee Secretary inadvertently tallied the roll call vote in favor of the amendment). C0-CHAIRMAN GREEN noted the amendment passed. Number 071 MS. ADAIR referred to page 2, line 28, amend subsection (b) to read "(b) The department shall, when adopting a standard or regulation under (a) of this section provide with the public notice draft of the proposal a written explanation that describes the basis for the proposal which shall include (1) the department's consideration of the economic feasibility of the proposal; (2) the department's consideration of the technological feasibility of the proposal; (3) if applicable, a finding that (A) the water quality standard, discharge standard, or method of measurement is reasonably required to protect human health and the environment; and (B) hydrologic conditions or discharge characteristics are significantly different in the state or in an area of the state from those upon which the corresponding federal standard, if any or regulation is based." MS. ADAIR related that there are two substantive changes: (1) eliminates the requirement for a public hearing; and (2) there is a change from preparing a written analysis of economic feasibility to consideration of the economic feasibility. This section has been changed somewhat by the previous amendment which works for the department as well. She thought the reorganization flows a little bit better. Number 112 REPRESENTATIVE ROKEBERG said the whole idea of the public hearing was not brought up in the subcommittee. He thought there may be some merit but he had not had a chance to consider it. The other issues that relate to the subsection (A) and (B) language, he was not certain as to their effect. As a result, he said he would be happy to work with the department on that but he objected to this amendment. He just didn't understand it. REPRESENTATIVE AUSTERMAN indicated that he had not had a chance to read the amendment and didn't know what the effect would be. CO-CHAIRMAN GREEN recommended that the department work this out with the sponsor before the next committee of referral. MS. ADAIR said the last amendment was on page 3, delete lines 24- 26. Number 149 REPRESENTATIVE DAVIES requested to move a different amendment. Following Representative Kott's lead, amend lines 24 and 25 on page 3 to read: "The Department of Environmental Conservation shall by January 31, 1998, brief the Resources Committee of the House and Senate of the Legislature concerning its review and proposed revisions required under (a) of this section." Number 179 CO-CHAIRMAN GREEN asked to amend the language to read, "the joint session." REPRESENTATIVE DAVIES said that is an additional requirement, it could be joint session or not, depending on the committees. Number 186 REPRESENTATIVE ROKEBERG had no objection. REPRESENTATIVE DAVIES moved his amendment. Number 190 MS. ADAIR asked if the committee envisioned that the department make the offer to brief the House and Senate Resources Committees. She said, "We cannot compel you to listen to us. We're happy to send a letter saying we're ready to brief you, whenever you are ready to listen to us and to have that sent to you by the 31st of January." REPRESENTATIVE DAVIES considered "shall offer" as a friendly amendment. Number 212 CO-CHAIRMAN GREEN asked if there were objections to Amendment 7? Hearing no objection, Amendment 7 was adopted. Number 217 REPRESENTATIVE OGAN moved to rescind action on Amendment 6 and revote the issue. C0-CHAIRMAN GREEN and Representative Nicholia objected. CO-CHAIRMAN GREEN asked for a roll call vote. Representatives Austerman, Ogan and Williams voted in favor of the motion. Representatives Davies, Kott, Long, Nicholia and Green voted against the motion. Number 253 REPRESENTATIVE OGAN moved that CSHB 342(RES) am move from the House Resources Committee with individual recommendations and attached fiscal note. Number 267 REPRESENTATIVE ROKEBERG commented that since Amendment 6 was adopted by the committee, he wanted the department to publicly state whether they were going to maintain or offer a zero fiscal note. MS. ADAIR replied, "I think so." Number 280 CO-CHAIRMAN GREEN said there was a motion on the floor to move the bill from committee. REPRESENTATIVE DAVIES moved to zero out the fiscal note. Number 288 REPRESENTATIVE OGAN moved to rescind his motion to move the bill from committee. Number 292 REPRESENTATIVE DAVIES moved that CSHB 342 (RES) am move from the House Resources Committee with a zero fiscal note. Hearing no objection, it was so ordered. NOTE: CSHB 342 WAS HELD FOR CLARIFICATION AND NOT TRANSMITTED TO THE CHIEF CLERK 04/17/96.
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