Legislature(2013 - 2014)BARNES 124
01/28/2013 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB36 | |
| HB80 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 36 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 80 | TELECONFERENCED | |
HB 36-EXEMPT DISCHARGES FROM USE OF MUNITIONS
1:03:04 PM
CO-CHAIR SADDLER announced that the first order of business
would be HOUSE BILL NO. 36, "An Act exempting certain federal
agencies or military services firing or using munitions on
active ranges from prior authorization requirements of the
Department of Environmental Conservation."
1:03:42 PM
REPRESENTATIVE TAMMIE WILSON, Alaska State Legislature, speaking
as the prime sponsor of HB 36, informed the committee that in
2008 when the Alaska Clean Water Act was amended to its current
form, a problem was created with the state's long-standing
military munitions exemption. The legislation before the
committee proposes to amend AS 46.03.100(e)(7) such that it
can't be misinterpreted to restrict military exercises on ranges
other than in situations in which the federal Clean Water Act
applies. She pointed out that HB 36 reduces the chance of
litigation in trying to interpret waters of the U.S. and said
Alaska is the only state with this unclear interpretation of the
Clean Water Act. Without the proposed amendment in HB 36 there
is the possibility that military ranges would need to curtail
operations due to misinterpretation of Alaska law, even if the
ranges are in compliance with federal law. She highlighted that
the proposed amendment in HB 36 was vetted by the Environmental
Protection Agency, the Department of Environmental Conservation,
the Department of Defense, and the Alaska Department of Military
& Veterans' Affairs. This legislation, she related, maintains
primacy, protects the environment, and allows military exercises
to continue without potential litigation.
1:05:39 PM
MAJOR GENERAL THOMAS KATKUS, Adjutant General/Commissioner,
Department of Military & Veterans' Affairs, highlighted the
strategic importance of Alaska to the military as a military and
training platform. No other places have ranges such as the
Joint Pacific Alaska Range Complex (JPARC). He acknowledged
that in this time of constrained resources, all of the states
and all of the locations in which the U.S. has forces are
seeking areas to be relevant and to train vigorously. Although
Alaska has great areas to offer, it comes at an expense.
Therefore, Alaska needs to ensure that it's balanced, not more
or less restrictive than other areas, and remain fair and in
line with all competitors. Moving HB 36 forward accomplishes
just that, he opined.
1:07:00 PM
REPRESENTATIVE SEATON, referring to the language on page 2,
lines 18-19, asked if HB 36 would apply to all rifle ranges not
just military active ranges.
MAJOR GENERAL KATKUS deferred to others on line.
1:07:51 PM
REPRESENTATIVE TUCK inquired as to whether the term "active
ranges" means a range where there is firing as well as training.
He further asked whether any types of maneuvers take place on
"active ranges."
MAJOR GENERAL KATKUS clarified that "active ranges" encompass
the full suite of military training. For more specifics, he
deferred to others on line.
1:08:19 PM
CO-CHAIR SADDLER inquired as to the number of active ranges in
Alaska and their size.
MAJOR GENERAL KATKUS responded that although most of the active
ranges are located on the federal facilities, there are
different types of ranges, including space and cyber.
Therefore, the ranges could be broadly defined.
CO-CHAIR SADDLER then inquired as to what risks the active duty
component would encounter if HB 36 is not enacted.
MAJOR GENERAL KATKUS reiterated that in this resource
constrained environment everyone is working very hard to be the
best location for the military. In a worst case scenario, the
possible interpretation that Alaska's law restricts the use of
Alaska military ranges in a manner not required by federal law
could be the tipping point and of critical importance.
1:09:44 PM
REPRESENTATIVE P. WILSON asked whether it is a moneymaker when
other entities train in Alaska.
MAJOR GENERAL KATKUS answered that the National Guard sees no
benefit, but there is a huge impact to the local area. For
instance, Red Flag in the Eielson Air Force Base (Eielson) area
has a huge impact in the local community. The presence of
military has a significant and positive impact on the local
community.
REPRESENTATIVE P. WILSON surmised then that [the possible
interpretation] has a large impact on the economy of Alaska as a
whole.
MAJOR GENERAL KATKUS agreed it could have a very big impact if
the interpretation that Alaska's military ranges were restricted
in a manner not required by federal law was the sole decision
point regarding whether to place, train, or station resources in
Alaska.
1:11:21 PM
KEVIN WARD, Regional Counsel, Regional Environmental and Energy
Office - Western, Assistant Secretary of the Army for
Installations, Energy & Environment, U.S. Army, speaking on
behalf of the Department of Defense (DoD) Regional Environmental
Coordinator's Office and military services in Alaska, noted that
the committee packet should include a letter of support for HB
36 from Clare Mendelsohn, DoD Regional Environmental
Coordinator, Region 10. He said the bill clarifies language in
the Alaska Clean Water Act so that it will only apply to
military ranges if required by the federal Water Pollution
Control Act. In other words, Alaska Department of Environmental
Conservation (DEC) remains the permitting authority, Alaska and
Alaska state government remains the agency making permitting and
enforcement decisions. For decisions pertaining to military
ranges, Alaska will look to the federal Water Pollution Control
Act.
1:12:35 PM
MR. WARD explained that the committee is being asked to pass
HB 36 because until 2008, the Environmental Protection Agency
(EPA) held primacy and was the enforcing and permitting
authority in Alaska for the Clean Water Act. When Alaska sought
that primacy, the EPA told DEC it must amend an existing
exception for military ranges, which was changed in 2008 to
read: "there would be exception unless there was a discharge to
waters of the United States". The aforementioned language has
been the subject of much litigation, including at least three
U.S. Supreme Court decisions over the last several years and EPA
and U.S. Army Corps of Engineers regulations and guidance.
Furthermore, the definition of "waters of the United States" is
some 30 lines long. Despite the aforementioned, it remains
unclear as to what that term means and there appears to be
another case that may go before the U.S. Supreme Court and the
EPA and U.S. Army Corps of Engineers are working on guidance
with regard to the earlier mentioned phrase. Therefore, Mr.
Ward supports passage of HB 36 that replaces the language "it
results in a discharge into waters of the United States." with
"otherwise regulated under 33 U.S.C. 1251-1376 (Federal Water
Pollution Control Act)" so that there is a body of law to
utilize when determinations are necessary. He noted that DEC
remains in the decision-making process.
1:14:26 PM
REPRESENTATIVE SEATON related his understanding that under HB 36
the Kachemak Bay gun club, an active range, from which a lot of
lead ends up in a wetlands area would be exempt even though it
is not an active military range.
MR. WARD understood the basis for Representative Seaton's
reading of the language, but pointed out that the language was
in the existing statute prior to 2008. He said he did not know
if that is how DEC applied the language until 2008 nor how DEC
would read the language.
REPRESENTATIVE SEATON clarified that he does not object to the
legislation, but rather to an unintended consequence of allowing
the potential for contaminants to enter water for which there is
no intention to have this military exemption.
1:17:17 PM
SETH BEAUSANG, Assistant Attorney General, Environmental
Section, Civil Division (Anchorage), Department of Law (DOL),
pointed out that the terms "training activities" and "active
ranges" are not defined in statute, and thus he was not sure
there is a clear answer. However, in the past DEC has
interpreted the language broadly so that AS 46.03.100(e)(7)
applies to both military and non-military ranges.
REPRESENTATIVE SEATON opined that it is not the intent to allow
the discharge in the waters of the United States for non-
military ranges. Therefore, he expressed the need to review
that.
1:18:40 PM
CO-CHAIR FEIGE asked whether ranges that [do not have military
activities] would be regulated under the EPA regulations.
REPRESENTATIVE T. WILSON clarified that any range that has to be
permitted will still have to be permitted because the Clean
Water Act must be followed. The change proposed in HB 36 speaks
only to military ranges, the language to which Representative
Seaton is referring was already in statute and [HB 36] will not
change anything DEC was doing prior to this legislation. The
change proposed in HB 36 merely clarifies one sentence as all
the other language is already in place.
1:20:27 PM
REPRESENTATIVE TARR recalled that Mr. Ward testified that the
language is being interpreted as more inclusive. By removing
the language ", including active ranges" would be definitive in
terms of what ranges are being addressed.
REPRESENTATIVE T. WILSON offered to ask that, but noted that
[HB 36] was vetted through four agencies and word-smithed such
that there would not be any consequences. She suggested that
deleting the language suggested by Representative Tarr would
likely impact other ranges. She opined that DEC will take care
of the permitting and the bill as written is what the department
needs in its toolbox.
1:22:30 PM
REPRESENTATIVE SEATON, referring to the language on page 2,
lines 17-18, asked whether this language would include ranges
used for civilian training or other local activities. He
further asked whether the language covers ranges other than
military ranges.
EMILY NAUMAN, Attorney, Legislative Legal Services Division,
Legislative Affairs Agency, said she did not know, but offered
to research the matter and provide the committee with an answer.
1:23:30 PM
CO-CHAIR SADDLER asked whether there are permitted ranges in
Alaska that do discharge in the water.
MR. BEAUSANG related his understanding that in the past DEC has
not issued permits for munitions ranges.
REPRESENTATIVE SEATON informed the committee that he was
involved with the Kachemak Bay gun range, and there were
considerations, permits required, and restrictions on an area
because it would have put lead shot into water discharges, which
is waters of the U.S. or the state. He reiterated the need to
avoid any unintended consequences, especially since there have
been expensive mitigation efforts to clean up lead shot that
went into wetlands.
REPRESENTATIVE P. WILSON related that this same thing has come
up in Sitka.
MICHELLE BONNET HALE, Director, Division of Water, Department of
Environmental Conservation, understood the question to be
whether there are any ranges that are permitted now. She
clarified that the permit being discussed is considered a
wastewater discharge permit and would be issued under the Alaska
Pollutant Discharge Elimination System program. She said that
as far as she knows there are no [ranges that are permitted].
Prior to October 2012 the EPA retained authority for that
discharge, which was one of the final phases. The DEC has not
issued any permits in that interim time and she related her
understanding that none were in place when the EPA had authority
for the program. She said that to consider munitions a
wastewater discharge is an odd category.
1:26:36 PM
CO-CHAIR SADDLER inquired as to the risks to the state should HB
36 pass as written.
MS. BONNET HALE responded that DEC has reviewed the legislation
and there is no risk to primacy, and it has been cleared with
the EPA. The legislation returns [the statute] to the original
intent, such that if the Clean Water Act is changed so that
permits are not required for munitions, the state would be
consistent with the Clean Water Act. Therefore, there is no
risk to the program.
1:27:12 PM
REPRESENTATIVE TARR surmised then that because there has been a
limited time since the state took over and completed the fourth
phase of primacy from the federal government, there would not
have been an opportunity for DEC to have issued any permits, and
thus [ranges] would have been operating under any existing EPA
permits, were there any. She requested verification of the
aforementioned.
MS. BONNET HALE agreed to verify that, but reiterated her
understanding that the EPA did not issue any permits. In
further response to Representative Tarr, Ms. Bonnet Hale said
she would specifically review the Rabbit Creek [range].
1:28:02 PM
REPRESENTATIVE JOHNSON pointed out that the statute refers to
ranges operated by the DoD or a U.S. military agency. The
Rabbit Creek range is operated by the Alaska Department of Fish
& Game (ADF&G) and the military does not operate private ranges
such as the one in Homer. He requested confirmation that the
military does not manage [non-military] ranges.
MAJOR GENERAL KATKUS shook his head no.
1:28:51 PM
CO-CHAIR SADDLER highlighted that the title of HB 36
specifically refers to "An Act exempting certain federal
agencies or military services ...." He then asked whether the
title provides any comfort that HB 36 specifically addresses
military ranges and not other private ranges.
MS. NAUMAN directed attention to the language on page 2, lines
17-18, and stated that the language "including active ranges
operated by the United States Department of Defense ..." does
not foreclose other types of active ranges. The language merely
provides examples of some of the ranges that would apply to this
proposed law.
CO-CHAIR SADDLER remarked then that the title does not
specifically limit the legislation to [military ranges].
1:29:57 PM
REPRESENTATIVE SEATON surmised then that the language "including
active ranges operated by" actually means that the legislation
applies to both those operated by DOD as well as others not
operated by DoD. He related his understanding that the intent
of the legislation is to address active ranges operated by DoD
and he has no opposition to that, but the existing language
creates unintended consequences.
1:31:07 PM
LIEUTENANT COLONEL JUSTIN TRUMBO, Regional Counsel, Regional
Environmental Coordinator, Western Region, U.S. Air Force,
Department of Defense (DoD), began by relating DoD's strong
support for HB 36. Regarding the application to private ranges,
he clarified that HB 36 does not create any new exemptions. He
then directed attention to page 2, lines 19-20, of HB 36 and
stated that the language "unless otherwise regulated" is
important. The legislation, he specified, does not do anything
that federal law does not do. The language does not create an
exemption per se, rather it would conform Alaska law to federal
law. Therefore, he did not believe changing the language at
this point would be advisable. With regard to the impact
military ranges have on the state's economy, he highlighted that
the military is Alaska's largest employer and has an annual
impact of nearly $5 billion a year. Therefore, HB 36 will help
provide consistency and predictability with Alaska's water law
and will provide protection to Alaska in accordance with federal
law. The aforementioned is why he urges the committee to move
forward with HB 36. In closing, he thanked prime sponsor
Representative T. Wilson and co-sponsor Representative Johnson
for their work.
The committee took an at-ease from 1:33 p.m. to 1:37 p.m.
1:37:37 PM
REPRESENTATIVE HAWKER reviewed AS 46.03.100(a)-(e) and related
that subsection (a) specifies there must be prior authorization
of the department for waste management, disposal, and discharge.
Subsections (b)-(d) address how to obtain that prior
authorization. Subsection (e) is a specific carve-out for
certain activities. He said he didn't see anything that changes
the regulatory authority the state has vested over shooting
ranges that exist for recreational purposes, which were the
types of ranges cited before the committee. He requested
confirmation that HB 36 has no effect, increasing or decreasing,
Alaska's regulatory structure or intent to regulate shooting
facilities maintained for the recreational use of the public.
MR. BEAUSANG concurred with Representative Hawker and confirmed
that HB 36 would not change any of the existing state permitting
requirements as it applies to munitions. The only change is
that in the future any federal law changes with respect to what
permits, HB 36 would ensure that both federal and state
permitting requirements are the same.
REPRESENTATIVE HAWKER remarked that he is very comfortable with
HB 36 as it is currently written.
1:40:46 PM
REPRESENTATIVE SEATON then withdrew his objection to the
language.
1:41:39 PM
REPRESENTATIVE TUCK asked whether the drafter concurred with Mr.
Beausang's interpretation.
MS. NAUMAN stated her agreement with the previous speaker that
HB 36 makes no change to what the state will be allowed to
regulate.
1:42:23 PM
CO-CHAIR SADDLER opened public testimony.
KARLA HART, Lobbyist, Alaska Community Action on Toxics,
expressed concern that HB 36 would take away the public's right
to know about what is dispersed into waters. As was mentioned,
Alaska is strategically located in terms of exercises and those
exercises are at a greater scope, scale, and volume which create
the potential of placing more hazards into the environment. She
then informed the committee that DoD has an initiative to get
its activities exempted from the federal environmental
protection laws, including the Marine Mammal Protection Act, the
Endangered Species Act, and elements of the Clean Water Act. If
DoD is successful in exempting themselves from the federal law,
then DoD will be in compliance with the federal law when exempt
from it. Therefore, Alaska is giving up its right to protect
its waters and to understand what is being placed in the waters
of the state. Given what can be found in munitions, it is
worthwhile for Alaska to have knowledge of it.
1:44:40 PM
JIM POWELL began by informing the committee that he is a former
25-year employee of DEC during which he performed water quality
standards. With regard to an earlier question about state
permitting on rifle ranges, Mr. Powell said that there was
permitting through a 401 certification, which is a dredge and
fill permit, under the Clean Water Act. Most of the ranges in
the state are located on wetlands, and thus a wetlands permit
would be necessary. In fact, [DEC] did a permit for the Hank
Harmon Range, which provided a reasonable assurance that state
and federal water standards were met through the permit. In
conclusion, Mr. Powell stated that he has no position on HB 36.
1:46:00 PM
REPRESENTATIVE TUCK inquired as to the size of the largest range
in the state.
MAJOR GENERAL KATKUS responded he did not know the number of
acres, but the JPARC is a significant sized range that is larger
than the state of Massachusetts. However, he clarified that
that does not mean every square inch is impacted by ordinates.
Although the ranges are very large in Alaska, this legislation
changes nothing in how those ranges are managed. The
legislation provides a clarification that allows Alaska to be on
a level playing field with every other state.
1:47:26 PM
CO-CHAIR SADDLER, upon determining no one else wished to
testify, closed public testimony.
REPRESENTATIVE HAWKER observed that a zero fiscal note is
associated with HB 36.
REPRESENTATIVE JOHNSON related that during his meeting with the
minister of Alberta he learned that Alberta has an agreement
with the University of Nevada to provide [unmanned air vehicle]
(UAV) ranges. Although that opportunity is no longer, he
expressed the need to ensure Alaska does not miss further
opportunities. To that end, he stated his support of HB 36.
1:48:43 PM
CO-CHAIR FEIGE moved to report HB 36 out of committee with
individual recommendations and the accompanying zero fiscal
note. There being no objection, HB 36 was reported from the
House Resources Standing Committee.
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