Legislature(2007 - 2008)BARNES 124
03/12/2007 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB137 | |
| HB149 | |
| HB165 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 137 | TELECONFERENCED | |
| *+ | HB 149 | TELECONFERENCED | |
| *+ | HB 165 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 149-POLLUTANT DISCHARGE PERMITS 1:41:54 PM CO-CHAIR JOHNSON announced that the next order of business would be HOUSE BILL NO. 149, "An Act relating to the authority of the Department of Environmental Conservation to require certain monitoring, sampling, and reporting and to require permits for certain discharges of pollutants; relating to criminal penalties for violations of the permit program; and providing for an effective date." 1:42:18 PM LYNN TOMICH KENT, Director, Division of Water, Department of Environmental Conservation (DEC), presented background for HB 149. She explained that the federal Clean Water Act (CWA) requires that all wastewater discharges to surface waters be permitted under the National Pollutant Discharge Elimination System (NPDES) Permitting Program. The CWA intends for states to implement or to have primacy for this program, with the Environmental Protection Agency (EPA) serving in an oversight role over the states that implement the program. There are presently 45 states that have primacy for the NPDES program. In Alaska, the EPA is currently the NPDES permitting authority and DEC plays a secondary role whereby DEC certifies that all of EPA's permits will comply with Alaska's water quality standards. The DEC also issues permits for those smaller discharges that EPA does not "get around" to issuing permits for. MS. KENT informed the committee that in 2005 the Alaska State Legislature, through Senate Bill 110, directed DEC to take all actions necessary to assume authority for the NPDES discharge permitting authority, including responsibility for issuing the permits and for ensuring compliance with the permits. As part of DEC's work with EPA to transfer primacy to the state, EPA has identified several areas where changes to the state statutes are required in order for DEC to have the full complement of statutory authorities that are needed for DEC to assume primacy. Those state authorities are adjusted by HB 149 to match the federal authorities. Each change addresses a specific concern that is raised by EPA as something that must be fixed. 1:44:13 PM CAMERON LEONARD, Senior Assistant Attorney General, Natural Resources Section, Civil Division (Fairbanks), Department of Law (DOL), pointed out that all of the sections of HB 149 are designed to respond to comments that the state has received from EPA and they are put together into a statutory package that EPA can approve. Therefore, each section of the bill has its own background of negotiation between the state and EPA. MR. LEONARD explained that Sections 1 and 5 are linked and that both address where monitoring and reporting requirements can be placed - either within a discharge permit or outside of a discharge permit. Conditions of permits are enforceable by third party lawsuits, and some members of the work group were concerned that certain monitoring and reporting requirements that were not tied to compliance had been placed in permits by EPA, thus exposing the permittees to third party lawsuits. Therefore, DOL collaborated with the work group to determine a way to require monitoring and reporting outside of permits. The language in Section 1 clarifies that DEC has this power. 1:46:18 PM MR. LEONARD noted that Section 2 deals only with terminology. He explained that the CWA, the federal law under which the state is trying to assume the permitting program, uses different terminology than that used in Alaska statutes. For example, the federal term for the placement of pollutants into water is "discharge," whereas Alaska statute uses the term "disposal." Adding the phrase "or discharge" and cleaning up the other language makes it clear that DEC has the same range of authority over activities that EPA has under the federal law. 1:47:11 PM REPRESENTATIVE SEATON asked for an explanation of any possible consequences that could result from the removal of the exemption for domestic sewage in Section 2. MR. LEONARD related that this issue is being removed from Section 2 because it is covered under Section 4. He explained that under current law this issue is dealt with in two different places and is stated differently, and that this results in confusion. 1:48:18 PM MR. LEONARD described the amendments embodied in Section 3(b) of the bill which lists the different kinds of authorizations that DEC can use to allow a discharge. One of EPA's comments, he said, was that it was unclear to EPA that it was DEC's decision as to which one to require for a given circumstance. This change clarifies that it is indeed up to DEC which requirement applies to any given circumstance. 1:49:08 PM MR. LEONARD noted that Section 4(e) addresses seven different exemptions, or exclusions, from the current requirements for getting a permit from DEC, and the exemption that Representative Seaton inquired about is covered by Subsection (e)(1). This change tracks federal law which contains an exclusion from the requirement of getting an NPDES permit for domestic sewage discharged to a publicly owned treatment works (POTW). He explained that the work group tried writing the state's exemption more broadly to deal with any treatment work whether publicly or privately owned. However, EPA required that the state's program be just as inclusive as EPA's, and EPA only excludes discharges of domestic sewage to POTWs. Thus, Section 4(e)(1) makes state law the same as federal law. MR. LEONARD pointed out that, currently, any discharge of domestic sewage into surface waters that is not via a POTW, is subject to the requirement of getting a federal discharge permit. There is no exemption from the NPDES permit requirement for discharges made into surface waters - whether or not a person knows of this requirement and whether or not a person has a permit. Therefore, state law will be the same as federal law on this point. What this means in practice is probably a question that should be asked of DEC. However, he said that he thought there are tools available under the program, such as general permits, where DEC will be able to authorize a whole category of discharges without having to do individual permits. 1:51:56 PM MR. LEONARD proceeded to Section 4(e)(4) relating to incidental discharges, such as discharge of water from trenching, drilling, or other types of construction activities. He noted that current state law uses the term "surface water of the state" and federal law uses "waters of the United States," a term that may not mean exactly the same thing as surface water. Section 4(e)(4) aligns the state's terminology with EPA's. 1:53:04 PM MR. LEONARD next discussed Section 4(e)(7) regarding the discharge of munitions. He explained that the exemption for the discharge of munitions remains in place but that the exemption does not apply if it results in a discharge into waters of the United States. Munitions are specifically covered in the definition of pollutants under the CWA, therefore discharge of munitions to waters of the United States requires an NPDES permit. In response to a question, Mr. Leonard stated that under current law, a shooting range that projects over water is required to get a discharge permit from EPA. Once the new program is approved, permit applications will instead be made to DEC. 1:54:45 PM MR. LEONARD moved to Section 5(h) and reminded the committee that this section is linked with Section 1. He said that this section is related to protecting permittees from third party suits for monitoring and reporting requirements that are not tied to compliance, either with permit limits or with water quality standards. If HB 149 passes with Sections 1 and 5 remaining as they are written, DEC will be given the choice to put those sorts of requirements either in permits or outside of permits. He said that this will satisfy EPA because this is the authority that EPA has now. 1:56:02 PM REPRESENTATIVE WILSON asked whether she is correct in understanding that currently at the federal level there is a choice of putting a requirement either in the permit or outside the permit, and that this bill will give the state that same choice. MR. LEONARD confirmed that this is exactly what he is saying. 1:56:31 PM REPRESENTATIVE GUTTENBERG asked for an explanation of Section 5(h) in regard to changing the word "mandated" to "authorized." MR. LEONARD noted that this refers to Section 308 of the CWA which gives EPA broad discretion for the kind of monitoring and reporting that a permittee is required to do. Changing the word "mandated" to "authorized" gives DEC this same broad discretion. 1:58:16 PM MR. LEONARD then addressed Sections 6 and 7. He explained that terminology is again the issue, and that these sections clarify that the state's use of the term "waste material" includes "pollutants" as defined by the U.S. Congress in the CWA. 1:59:11 PM REPRESENTATIVE SEATON asked why not use the same terminology that is found in federal law if the point is for the state to be able to take over enforcement of the CWA. MR. LEONARD explained that AS 46.03.100 deals with subjects that go beyond the Alaska Pollutant Discharge Elimination System (APDES) program. For example, it deals with discharges of materials to land, such as the permitting of land fills. While developing the APDES program, the state faced the choice of how much to do by changes to the statute and how much to do by regulations. The state tried to create the regulatory program to satisfy EPA within the broader umbrella of authority represented by AS 46.03.100 even though it led to these issues of terminology. Numerous programs are run by DEC under the authority of AS 46.03.100, and changing all the language in that statute would cause problems in other areas. 2:00:41 PM REPRESENTATIVE SEATON asked whether the term "pollutants" will be used by the state when dealing with NPDES permits, or will the state now substitute the term "waste material" because it is more expansive than "pollutants." MR. LEONARD said that the state will use the term "pollutants" because that is the definition that has already been incorporated into the regulations promulgated to implement the program. This proposed change in Sections 6 and 7 just makes it clearer that this is what the state legislature intended. 2:01:49 PM MR. LEONARD lastly explained Section 8(i) regarding criminal penalties for violations of the program. Under the CWA, the mens rea, or "state of mind," that must be proven when seeking a criminal sanction for violation of the program is "simple" negligence. However, current state law requires that "criminal" negligence be proven, which is a slightly higher state of mind. For the state program to be approved, EPA is requiring that state statutes be revised so that violations of the APDES program only have to be proven with "simple" negligence, and this is what Section 8(i) does. 2:03:19 P1M CO-CHAIR GATTO inquired whether dumping water from a cooler of beer constitutes simple negligence under the terms of HB 149, page 1, lines 13 and 14. MR. LEONARD remarked that it is absurd that there is no de minimis exception to CWA requirements. In theory, if the discharge from a person's cooler was to surface waters, a purist could argue that it requires an NPDES permit. No one in their right mind would actually say that, but there is case law that says there is no generally acknowledged de minimis exemption to the NPDES permit program. Therefore, he said, it is easy to come up with absurd hypotheticals about the theoretical reach of the program. In response to a further question, Mr. Leonard stated that he did not think anyone would argue that the drainage from a cooler would constitute waste material or pollutants. In response to another example regarding hunters camping out, he explained that in the real world there is a functional de minimis doctrine whether the courts would recognize it or not, the only question is where is the line drawn between truly de minimis activities and what needs to be permitted. CO-CHAIR GATTO remarked that this is his point and he is looking for the line that determines whether or not a situation is a violation. MR. LEONARD related his belief that one of the reasons that industry supports the State of Alaska taking over the program is the hope that state regulators will be more responsive and more realistic than EPA's Region 10 office located in Seattle. He said he did not know if this would make the problem any worse than it is now, but that the state is not adopting any requirements that are not already there under federal law. If HB 149 goes through, then the state will be running the program. 2:08:12 PM REPRESENTATIVE GUTTENBERG requested Mr. Leonard to expand on an earlier comment that the type of permits, or conditions for permits, could be tailored more tightly if the term "mandated" is changed to "authorized" under Section 5 of the bill. MR. LEONARD explained that he initially insisted that the word "mandated" was fine, but that ultimately the state went along with EPA's desires and changed it. He remarked that the difference between the terms is a bit elusive, but that the way he thinks the law would be implemented in practice is that DEC would still exercise its discretion and put monitoring and reporting requirements in permits that deal with compliance, for example permit limits and water quality standards. Mr. Leonard related his belief that DEC intends to keep requirements for informational types of monitoring and reporting outside of the permits, and that this information will be used in future decisions regarding whether there ought to be permits for other parameters. He noted that this is the plan even though it is not found in the language of the bill. The bill is specifically only for satisfying EPA's concerns. He stated that this is where the line is drawn - if it is tied to compliance with permit limits and with water quality standards, then the requirements will go in the permits. 2:10:25 PM MR. LEONARD, in response to a question from Representative Seaton, reiterated that EPA has the ability to choose whether it wants to put the requirements in a permit or outside of a permit. In practice, he explained, EPA puts many of the monitoring and reporting requirements into permits that DEC intends to keep outside the permits. It is because of that and because of some of the third party suits against permittees that the work group was concerned about this point. He noted that EPA sometimes implements what is known as "308 orders" where the monitoring and reporting to EPA are done outside of the permit. He said that historically EPA has put more requirements into the permits themselves than DEC plans to do. 2:11:13 PM REPRESENTATIVE SEATON asked whether this move to primacy is to preclude enforcement of pollutant discharge permits by third party action, and whether the state will increase its enforcement to cover situations that are currently being looked after by the public. MR. LEONARD stated that all of the requirements of the permits issued by DEC will still be enforceable by citizen suits because they are conditions of NPDES permits. For example, the permit limits that control how much pollutants can be discharged are still enforceable. The question is whether to put a particular monitoring requirement into a permit or do it separately via an order. By placing the requirement into the permit, it is made enforceable by the citizen suit mechanism. The intent of taking over the program is not to get rid of citizen suits, but is narrowly focused on monitoring and reporting that does not have to do with compliance. 2:12:44 PM REPRESENTATIVE SEATON requested that the committee be provided with examples of cases that will now be outside of the permits and will not be enforceable by third parties. He surmised that DEC's budget will need to be increased in order for the state to enforce the requirements outside of a permit. 2:13:25 PM CO-CHAIR GATTO referred to the third paragraph of Governor Palin's February 20, 2007, letter to Speaker Harris regarding treatment of sewage. He asked whether domestic septic tanks will now fall under requirements for treated sewage. MR. LEONARD explained that the homeowner with a typical septic tank will not be subject to the program because the discharge will not be to a surface water. Only those homeowners with a [sewage] pipe that goes to surface waters, such as a stream or coastal waters, would be affected by this program. 2:14:21 PM CO-CHAIR GATTO asked whether a hole for an outhouse that happens to go into an aquifer which drains into a river would be considered a violation of the program. MR. LEONARD stated that this would not be a violation. He related that there is some case law that talks about when ground water has a connection to a surface water body, but that the few cases that are reported have much stronger facts that demonstrate measurable impacts to adjacent surface waters. 2:15:10 PM CO-CHAIR GATTO asked whether draining a 500 gallon hot tub onto the surface is a violation. MR. LEONARD responded that it would not be a violation if it is not to a surface water. If it is to a surface water, in theory someone could say that is thermal pollution because it is heated water going to a surface water. In practice in the real world, nobody permits it and nobody tries to sue because it was not permitted. He said that there is currently a defacto rule of reason in place that he does not think will change. 2:16:34 PM REPRESENTATIVE EDGMON pointed out a qualifier related to discharge from a point source in Section 4, page 2, lines 29-31, that may address Representative Gatto's hypothetical examples. 2:16:59 PM CO-CHAIR JOHNSON asked whether the state's current regulations are more restrictive than are EPA's, and whether there is a net gain or net loss to the environmental impact by passing this bill. MR. LEONARD said no. The changes tighten the state's program by bringing more activities within the scope of DEC's regulation. He explained that EPA will only approve a state program that is as stringent and inclusive as the federal program that it will be replacing. These changes will make DEC's program just as inclusive as EPA's. 2:18:20 PM REPRESENTATIVE EDGMON inquired as to whether the term "any waters of the United States" includes subsurface waters. MR. LEONARD replied no. The term "waters of the United States" is defined in the CWA and is tied to navigability; it does not include subsurface or ground water. REPRESENTATIVE EDGMON asked whether this is addressed in the bill, perhaps through reference to Title 31. MR. LEONARD said that the definition is not addressed in HB 149 because it is included in the regulations that have been adopted and the regulations follow the federal definition from the CWA. 2:19:10 PM REPRESENTATIVE GUTTENBERG offered his understanding that there is a legal problem relating to the definition of "waters of the United States" and that this is one of the reasons the state is dealing with this issue. MR. LEONARD remarked that this is a very active issue at the federal level, including recent decisions by the Supreme Court of the United States. He noted that the scope of "waters of the United States" is dynamic and evolving, and also affects other programs such as the U.S. Army Corps of Engineers' (USACE) "dredge and fill" permit program. He acknowledged that the State of Alaska will inherit some of that uncertainty by taking over the program. As the scope of the term evolves, he said, it will be reflected in what EPA requires states to do. 2:19:56 PM REPRESENTATIVE GUTTENBERG referenced a court case involving the Red Dog Mine and inquired whether the state is going far enough towards meeting EPA standards and goals, and can the state be taken to court if it does not follow through with its obligations. MR. LEONARD explained that should changes be made at the federal level to the doctrine of waters of the U.S., [DEC] can change the regulatory definition without coming to the legislature. The state's program will be subject to ongoing federal oversight and EPA can take the program back if the state does not implement it in a way that complies with federal law. All programs that are assumable by states under federal environmental laws are subject to this kind of oversight. REPRESENTATIVE GUTTENBERG commented that the state has a clear interest in "Alaskanizing" as much of this as it can. 2:21:38 PM REPRESENTATIVE SEATON requested Mr. Leonard's opinion as to whether defining "waters of the United States" in Alaska's statutes could be detrimental, given that the federal definition is subject to change. MR. LEONARD commented that this is a good question because determining which definition should be in the statute was quite a struggle. He said that the work group tried to create this program in the regulations because it wanted to keep the bill as simple as possible and because adding a statutory definition of "waters of the U.S." might cause confusion. The current definition of "waters of the state" is different than the definition for "waters of the U.S." One particular difference is that the state does not include wetlands in its definition of "waters of the state," whereas EPA does include wetlands in the definition of "waters of the U.S." To prevent confusion between these definitions, it was decided to put the definition in the regulations that were promulgated to implement this particular program. REPRESENTATIVE SEATON commented that he is concerned about making changes in regulation without full knowledge of the issues that might be affected, such as wetlands. 2:24:15 PM REPRESENTATIVE ROSES reviewed his understanding that this is to bring the permitting process and DEC's compliance requirements in line with what EPA wants. He asked whether it is anticipated that DEC will take over any of the enforcement requirements or other actions currently being done by EPA. MR. LEONARD reported that DEC will take over the enforcement at the same time that it takes over the writing of the permits. REPRESENTATIVE ROSES questioned why there is then a 0 fiscal note. MR. LEONARD deferred to DEC. CO-CHAIR JOHNSON commented that this is one of his questions as well. REPRESENTATIVE ROSES stated that he is concerned over the fiscal note and the wetlands issue. 2:25:28 PM CO-CHAIR JOHNSON asked whether the state is assuming liability and becoming the subject of lawsuits - rather than the EPA - by taking over this program. 2:25:48 PM MR. LEONARD referred to the Red Dog Mine court case that he is familiar with and that is probably the court case referenced earlier by Representative Guttenberg. He pointed out that in this court case, the state and EPA were at loggerheads regarding the Clean Air Act - therefore the case is irrelevant to this issue. He confirmed that by taking over NPDES responsibilities, DEC will become responsible for enforcing the permits that it issues. He said that beyond this, he did not see large exposure to liability from running the program and that he could not speculate on the kinds of lawsuits that people may file in the future. 2:26:42 PM REPRESENTATIVE EDGMON noted that the discharge qualifier that he had pointed out earlier in Section 4 on page 2 is not mentioned in Section 2 on page 1, and that he would like for this to be addressed. CO-CHAIR JOHNSON responded that it might be something the House Judiciary Standing Committee should look at. 2:27:17 PM MS. KENT explained that the reason there is no fiscal note for HB 149 is because a fiscal note was included in Senate Bill 110 when it was passed in 2005. This provided the funding necessary for DEC to implement the program, she said. REPRESENTATIVE SEATON inquired whether the 2005 fiscal note anticipated that DEC would be responsible for taking enforcement actions for those requirements that are now outside of the permit and no longer enforceable by third parties. MS. KENT stated that this was DEC's intention all along, therefore the 2005 fiscal note does reflect that. 2:28:45 PM CO-CHAIR JOHNSON opened public testimony on HB 149. 2:28:56 PM STEVE BORELL, Executive Director, Alaska Miners Association (AMA), testified in support of HB 149. He related that the intent of the bill is to modify existing statute that was previously passed to allow state assumption of EPA's NPDES program. The current bill contains a few additional items that are needed for the state to assume the program. For the state to obtain primacy over NPDES, its authorities must be at least as strong as those of EPA and this bill makes the changes that will ensure that Alaska statutes meet that test. He commended DEC for its work on this issue and urged passage of the bill. 2:30:40 PM BOB SHAVELSON, Executive Director, Cook Inletkeeper, explained that his organization works towards water quality and fish habitat protection in the Cook Inlet watershed. He noted that typically Cook Inletkeeper would support "Alaskanizing" this permit program. However, he said, this was part of a permitting package that the Murkowski Administration put through, therefore it is important to look at this in the whole context of other things that have occurred. For example, substantial changes to the Alaska Coastal Management Program removed citizens from decision-making in that program. Biologists were taken away from the Alaska Department of Fish & Game (ADF&G) and moved to a development agency under the Department of Natural Resources (DNR). The Murkowski Administration lifted the long-standing ban on mixing zones in salmon spawning areas. He opined that this assumption of state primacy occurs within the aforementioned context. He contended that Mr. Borell's support of the bill is not surprising because AMA was one of the few entities that was allowed to participate in the work group. He related that Native groups, fishing groups, and ordinary Alaskans were denied the opportunity to sit at the table in that work group and to have substantive input into development of this policy. The Murkowski Administration chose to have a closed-door approach to this, he argued, and it is Cook Inletkeeper's opinion that that approach does not result in the best public policy. MR. SHAVELSON warned that this bill will result in having fewer people doing a very complex job that was previously done by EPA. It is basically building bigger state government when nothing indicated that the system was broken. He explained that the state has the authority to weigh in on any federal permit to ensure that it protects water quality standards and the designated uses like fishing and drinking. He maintained that DEC routinely, because of resource constraints, either affirmatively waives that requirement or puts in no time when the department certifies the permit. He said this makes him question DEC's commitment to enforcing the law since they are not already doing so. He urged the committee to hear from EPA and how their relationship has been with DEC because EPA rejected the initial proposal that went in from the Murkowski Administration. He warned that financially the state will be taking on a large program and attempting to do more with less. 2:35:33 PM MR. SHAVELSON, in response to a question, contended that more equitable sharing of the permitting fees would have occurred had citizens and other folks been allowed to participate in the working group. He said that industry refused to pay more for this program, the result being a larger expenditure for Alaska government. Had there been a more open and transparent process, there might have been a more equitable solution that Cook Inletkeeper could have supported. In response to a further question, Mr. Shavelson said that there will be an additional cost to permittees in Alaska. 2:36:52 PM CO-CHAIR JOHNSON closed public testimony after ascertaining that no one else wished to speak. He announced that the bill is being held until the committee receives answers to its questions from DEC.
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