Legislature(1997 - 1998)

03/25/1997 01:30 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 SSHB 128 - WATER QUALITY; WATER SCIENCE OVERSIGHT BD                        
                                                                               
 [Contains considerable discussion of HB 51 at tape numbers 1006-              
 1189 and 1871-2263]                                                           
                                                                               
 Number 0058                                                                   
                                                                               
 CO-CHAIRMAN HUDSON announced the first order of business was                  
 Sponsor Substitute for House Bill No. 128, "An Act relating to                
 water quality; directing the Department of Environmental                      
 Conservation to conduct water quality research; establishing the              
 Water Science Oversight Board; and providing for an effective                 
 date."                                                                        
                                                                               
 CO-CHAIRMAN HUDSON, sponsor, explained that SSHB 128 provides a               
 means to improve and Alaskanize water quality standards in the                
 state.  He believes standards are often predicated on scientific              
 research from other states or countries, with little or no                    
 relationship to Arctic and sub-Arctic conditions.  The bill allows            
 the Department of Environmental Conservation (ADEC) to form                   
 partnerships with interested parties to seek funding for water                
 quality research, with a goal of substituting science and certainty           
 for emotion and politics where possible.                                      
                                                                               
 CO-CHAIRMAN HUDSON said without Alaska-specific research, the                 
 Environmental Protection Agency (EPA) will not accept specific                
 Alaska changes to water quality regulations.  He expressed                    
 confidence that all parties will agree to the concept of forming a            
 partnership to seek funding for five years of technical research.             
                                                                               
 Number 0313                                                                   
                                                                               
 CO-CHAIRMAN HUDSON reported that the Alaska Science and Technology            
 Foundation (ASTF) has expressed interest in funding this research.            
 However, it will only accept an application from a public agency if           
 that agency is in partnership with a private organization.  He                
 advised that the ASTF may not exist soon.  However, if that is not            
 a source, he believes there are others.                                       
                                                                               
 CO-CHAIRMAN HUDSON advised that SSHB 128 sets up a process and an             
 organization that can try to obtain ASTF or federal funds.  He does           
 not intend to request general funds for this research.                        
                                                                               
 Number 0378                                                                   
                                                                               
 CO-CHAIRMAN HUDSON explained that the sponsor substitute removed              
 interim regulations.  At the beginning of session, permit holders             
 from the mining community had approached him, expressing concerns             
 about the permitting process in Alaska.  He had worked with them              
 and the ADEC to agree on specific interim regulations, included in            
 the original bill.  Now, he is working closely with the                       
 Administration, who are moving rapidly and deliberately to address            
 many interim standards on their own.  As long as he sees that                 
 progress, he sees no need for the legislature to place its own                
 standards.                                                                    
                                                                               
 CO-CHAIRMAN HUDSON generally believes regulation should not be                
 micromanaged.  However, frustration on all sides makes legislative            
 oversight necessary.  To that end, he had formally urged swift                
 consideration of technical matters by the ADEC and cooperation of             
 the industry.  He had not treated one differently from the other,             
 and he believes they both depend and rely upon each other.                    
                                                                               
 Number 0559                                                                   
                                                                               
 DAVID STONE, President, Council of Alaska Producers, came forward             
 to testify.  The council is a nonprofit corporation composed of all           
 the major mining companies doing business in Alaska:  Alaska Gold             
 Company; American Copper and Nickel Company, Incorporated/INCO;               
 Coeur Alaska, Incorporated; Cominco Alaska, Incorporated; Echo Bay            
 Mines; Fairbanks Gold Mining, Incorporated; Greens Creek Mining               
 Company; Kennecott Exploration; Nevada Goldfields, Incorporated;              
 Newmont Mining Corporation; North Pacific Mining Company/CIRI;                
 Placer Dome, U.S., Incorporated; and USMX, Incorporated.                      
                                                                               
 MR. STONE urged support for SSHB 128, saying mining is a bright               
 growth industry in Alaska.  He read the last paragraph of an                  
 article on mining by Tim Bradner, from the November 10, 1996,                 
 Anchorage Daily News, which says it is comforting to see expansion          
 of an industry that will require a skilled, highly paid work force.           
                                                                               
 MR. STONE said they agree but believe Alaska's future can be bright           
 for many natural resource industries.  However, it depends on                 
 environmental regulations that protect Alaska's air and water while           
 allowing responsible development.  He believes SSHB 128 helps                 
 achieve that.  He deferred to McKie Campbell.                                 
                                                                               
 Number 0756                                                                   
                                                                               
 McKIE CAMPBELL, Consultant for the Council of Alaska Producers,               
 addressed questions that had arisen.  He said if there is no                  
 funding, nothing will happen.  The law would exist, and efforts to            
 work with the ADEC to obtain other funding could continue.  He                
 emphasized that this type of research is necessary before the EPA             
 will consider changing water quality regulations.                             
                                                                               
 MR. CAMPBELL cited Whole Effluent Toxicity (WET) testing as an                
 example of appropriate research.  Even if individual discharge                
 levels are met, there may be synergistic reactions.  However,                 
 present WET testing gives "flukey" results.  While the council does           
 not believe those tests should be either more stringent or more               
 liberal, they do believe the testing should be evaluated.                     
                                                                               
 Number 0896                                                                   
                                                                               
 MR. CAMPBELL explained that similarly, the Water Science Oversight            
 Board would only be active if there is funding.  He noted that                
 committee packets contain two legal opinions regarding board                  
 appointments.  The first, dated March 4, 1996, by James Baldwin,              
 Assistant Attorney General, states there may be a constitutional              
 issue.  Mr. Campbell said he believes the Department of Law, in               
 defense of the governor's powers, has always tried to have the                
 least restrictions upon the governor's ability to appoint.                    
                                                                               
 MR. CAMPBELL referred to the second opinion, dated March 14, 1997,            
 from Terri Lauterbach, Legislative Counsel, Division of Legal and             
 Research Services.  Mr. Campbell said Ms. Lauterbach does not                 
 believe this would be a constitutional problem.                               
                                                                               
 MR. CAMPBELL expressed appreciation for the cooperative                       
 relationship established with Commissioner Brown and the ADEC,                
 regardless of whether parties agreed or disagreed on particular               
 points.  He concluded by urging passage of SSHB 128.                          
                                                                               
 Number 1006                                                                   
                                                                               
 REPRESENTATIVE JOE GREEN referred to HB 51, currently being debated           
 on the House floor.  He asked how the two bills differ and whether            
 there are areas where they will compete.                                      
                                                                               
 CO-CHAIRMAN HUDSON replied that SSHB 128 will produce scientific              
 data that will legitimize some concerns expressed in HB 51.  He               
 believes it complements HB 51.                                                
                                                                               
 Number 1070                                                                   
                                                                               
 MR. CAMPBELL indicated the council does not see a conflict.                   
                                                                               
 REPRESENTATIVE GREEN asked for clarification.                                 
                                                                               
 CO-CHAIRMAN HUDSON elaborated, saying SSHB 128 provides scientific            
 research that will be the basis for the ultimate Alaska water                 
 quality standards on most of the major contentious issues, such as            
 mixing zones and WET testing, over which the ADEC has been battling           
 with federal agencies.  The industry tells him they are prepared to           
 live with standards arrived at under SSHB 128 because those will be           
 based on scientific research, not politics.                                   
                                                                               
 Number 1129                                                                   
                                                                               
 REPRESENTATIVE GREEN said SSHB 128 tries to establish standards,              
 then, rather than be a testing mechanism for standards that might             
 be approved if HB 51 goes through.  From that standpoint, it                  
 appears they may be in competition.                                           
                                                                               
 CO-CHAIRMAN HUDSON suggested that Commissioner Brown respond.  He             
 restated his belief that there is no conflict.                                
                                                                               
 Number 1189                                                                   
                                                                               
 REPRESENTATIVE FRED DYSON asked who opposes SSHB 128.                         
                                                                               
 MR. CAMPBELL said they may hear concerns about components of the              
 bill, including whether the governor will have unfettered                     
 appointment ability for the board.  The council believes SSHB 128             
 provides a balanced approach, and appointees are required to have             
 academic and professional expertise in water quality science.                 
 Although there may be discussion that somehow the board should be             
 totally removed from politics, he does not know how that is done.             
 He is unaware of anyone opposing SSHB 128 outright.                           
                                                                               
 Number 1277                                                                   
                                                                               
 REPRESENTATIVE DYSON stated his understanding that there is concern           
 the board may be tilted in one direction.                                     
                                                                               
 MR. CAMPBELL believes there is a feeling that the board is fairly             
 balanced but should be appointed by a nonpolitical entity.  He                
 pointed out that the board's role is advisory, which he believes is           
 important as far as constitutionality.                                        
                                                                               
 Number 1370                                                                   
                                                                               
 MICHELE BROWN, Commissioner, Department of Environmental                      
 Conservation, came forward to testify.  She said the Administration           
 is pleased by the change in the sponsor substitute.  They are also            
 heartened by the caliber of discussion.  She thanked Co-Chairman              
 Hudson and the council for that approach in a time of growing and             
 needless polarization over environmental management.                          
                                                                               
 COMMISSIONER BROWN said Alaskans' well-being is inextricably tied             
 to water quality.  Maintaining it begins with setting good water              
 quality standards, which must protect public health, value                    
 resources and foster and respect all water users.  To that extent,            
 the ADEC shares SSHB 128's vision of seeking to Alaskanize                    
 standards.  The bill will supplement their efforts, which include             
 using sound science, good resource management principles and full             
 public participation in setting standards.                                    
                                                                               
 Number 1434                                                                   
                                                                               
 COMMISSIONER BROWN said equally important is the application of               
 standards.  In applying standards, the ADEC considers specific                
 information on water bodies and contaminants.  They use those                 
 specifics to permit discharge; create mixing zones, which are                 
 variances wherein standards can be exceeded; create site-specific             
 criteria to handle the exceeding of standards for specified water             
 bodies where it will not cause harm; and classify and reclassify              
 water bodies for specified uses.  These tools allow them to                   
 accommodate particular activities without downgrading standards               
 statewide.                                                                    
                                                                               
 COMMISSIONER BROWN discussed roles of the EPA and the state.  The             
 federal Clean Water Act gives states the duty to set standards.               
 The EPA retains four functions.  First, it develops effluent                  
 technology requirements, equipment that certain kinds of processes            
 must use to reduce the amount of pollutants discharged.  Second, it           
 develops scientific guidelines on pollutants.  States frequently do           
 not have money for necessary research.  The EPA does that research            
 and makes it available as guidance for the states, which may use it           
 as they choose in setting standards.  If states have their own                
 research, they may use that.                                                  
                                                                               
 COMMISSIONER BROWN said third, the EPA reviews and approves state             
 standards to ensure consistency with the Clean Water Act.  Fourth,            
 it takes over and writes standards when it believes a state has not           
 properly done so.  She believes in avoiding that at all costs.  The           
 one time it occurred in Alaska, the National Toxics Rule (NTR) was            
 imposed, leading to problems with arsenic levels, for instance.               
                                                                               
 Number 1545                                                                   
                                                                               
 COMMISSIONER BROWN explained that a standard is defined as the                
 maximum pollutant concentration that a water body can absorb yet              
 still maintain the water uses for which it has been used or could             
 be used.  These include drinking water, industrial usage,                     
 agriculture, aquaculture, fishing and other uses.                             
                                                                               
 COMMISSIONER BROWN said when the ADEC works on setting standards,             
 they start with a thorough scientific review.  They do independent            
 research, use the EPA's research, and look at what other states and           
 Canada do.  They then carefully look at Alaska's multiple water               
 uses and consult with users to ensure everyone's interests are                
 considered.                                                                   
                                                                               
 COMMISSIONER BROWN said that kind of detailed process is currently            
 underway for 13 standards, 12 of which were identified by industry            
 and the public as most in need of review and update.  She pointed             
 out that scientific information is constantly changing, and it is             
 appropriate to constantly review standards to ensure they are up-             
 to-date.  The 13th standard, the mixing zone standard, is currently           
 out for public review.                                                        
                                                                               
 Number 1604                                                                   
                                                                               
 COMMISSIONER BROWN referred to two charts.  The first, dated                  
 2/18/97, addresses the 12 standards currently under review.  Some             
 issues are resolved, and others are underway.                                 
                                                                               
 COMMISSIONER BROWN briefly discussed the second chart, entitled               
 "WQS Review Process."  She believes SSHB 128 will complement the              
 ADEC's efforts and enable them, should they gain funding, to tackle           
 difficult issues requiring Alaska-specific research.  When                    
 necessary, it will also enable them to convince the EPA a suggested           
 standard is inappropriate and that Alaska has a sound scientific              
 basis for its own.                                                            
                                                                               
 Number 1699                                                                   
                                                                               
 COMMISSIONER BROWN concurred with Co-Chairman Hudson that water               
 quality issues are highly volatile and emotional.  There are                  
 competing livelihood demands and serious health issues.  The more             
 science and rationality brought to this process, the better.                  
                                                                               
 COMMISSIONER BROWN discussed mixing zones.  Variances from existing           
 standards, they are highly controversial.  The ADEC has been                  
 revising standards to more clearly demonstrate how the department             
 will exercise its discretion and balance views on mixing zones.               
 They have held six public hearings and workshops, factored in over            
 500 comments and spent hundreds of hours in research and individual           
 conversations "on just about every word in this proposed reg."                
 Those standards are out for final public comment.                             
                                                                               
 COMMISSIONER BROWN said as painful as that process has been, she              
 believes it is necessary.  Because the subject is so complex, there           
 must be painstaking research and analysis to ensure that a standard           
 is not created that inadvertently creates a problem for someone               
 else.  The ADEC is convinced this type of negotiated stakeholder              
 rule-making is the way to build certainty, common sense and                   
 rationality in the process.  A science board and the kind of                  
 research in SSHB 128 will certainly further that effort.                      
                                                                               
 Number 1781                                                                   
                                                                               
 COMMISSIONER BROWN expressed concern that the board is set up in a            
 way that politicizes it.  Most boards are set up with the governor            
 making the appointment, because they work with the executive                  
 branch.  She noted that the Attorney General's office believes                
 there is a constitutional separation of powers issue.                         
                                                                               
 COMMISSIONER BROWN stated concern that the board is not simply                
 advisory because the bill mandates the ADEC to adopt regulations              
 when the board tells them to.  It also says the board is to direct            
 and oversee.                                                                  
                                                                               
 COMMISSIONER BROWN suggested appointments be made by the governor.            
 Beefing up the required scientific credentials would also be                  
 acceptable to ensure board members are focused on the science.                
                                                                               
 Number 1835                                                                   
                                                                               
 COMMISSIONER BROWN advised that the ADEC has a few minor technical            
 changes, clarifications of language, that she has spoken to McKie             
 Campbell about and that can be worked out in the future.  The board           
 composition is the only issue outstanding.  "When we resolve that,            
 we'd like to join with you to move this quickly through," she                 
 stated.                                                                       
                                                                               
 Number 1871                                                                   
                                                                               
 COMMISSIONER BROWN addressed HB 51.  She does not believe the two             
 bills contradict each other, although they differ in methodology.             
 While SSHB 128 seeks to Alaskanize standards, HB 51, for reasons              
 that baffle her, defers to the federal government.                            
                                                                               
 COMMISSIONER BROWN emphasized that the federal government does not            
 set standards for Alaska.  "And when they did, we hated it," she              
 said.  "Why we would turn over our standards to them is beyond me.            
 We don't want them to manage our fish and wildlife.  We can't stand           
 the way they manage our forests.  They're driving us crazy with               
 their interpretation of RS 2477.  Why we would turn over something            
 as important as water quality standards to them, when they base               
 them on what's going on in New Jersey, I just cannot understand."             
                                                                               
 COMMISSIONER BROWN advised that she has spent a lot of time trying            
 to convince the EPA that Alaska has very different conditions.  She           
 said SSHB 128 provides the tools to convince the EPA that Alaska is           
 different and needs to set its own standards that make sense for              
 Alaska.                                                                       
                                                                               
 COMMISSIONER BROWN pointed out that Alaska has more competing                 
 resource users than most states.  She believes there can be mining            
 next to fishing.  It's a question of good management and of being             
 good neighbors to each other.  However, HB 51 does not encourage              
 that kind of multiple use.  It says the first user on the block               
 gets to use up the water body, and if the rest are cut out, so be             
 it.  She believes that is not in Alaska's best economic or "good              
 neighbor" interests.                                                          
                                                                               
 Number 1941                                                                   
                                                                               
 COMMISSIONER BROWN said while SSHB 128 emphasizes good science                
 before making decisions, HB 51 says it wants good science but                 
 proceeds to adopt standards without having looked at any science.             
 She believes SSHB 128 provides a good long-term approach and                  
 protects all users.                                                           
                                                                               
 COMMISSIONER BROWN stated, "I think HB 51 is a tempting quick-fix,            
 although I'm not quite sure for whom, because I've yet to hear any            
 industry say they really support it.  It's an attempt to paint with           
 a broad brush, to say if one industrial discharger needs a standard           
 to be lowered in a certain area, then the standard for the whole              
 state should lower, as opposed to, you keep the standard and the              
 protective basis, but if you need to change it on a site-specific             
 basis and you can show it doesn't do harm, as we've done in a                 
 number of sites, then you change that.  So it's a difference in               
 approach."                                                                    
                                                                               
 Number 2002                                                                   
                                                                               
 REPRESENTATIVE GREEN discussed the possibility of an increased                
 standard if, for example, multiple uses occur where previously                
 someone else operated in compliance with the EPA standard.                    
                                                                               
 COMMISSIONER BROWN said she did not follow.  She advised that the             
 Clean Air Act sets national standards.  In contrast, under the                
 Clean Water Act, the federal government only sets standards when a            
 state does not.  They offer scientific guidelines, but not for                
 everything.  For example, they have no mixing zones.                          
                                                                               
 Number 2120                                                                   
                                                                               
 CO-CHAIRMAN HUDSON advised that he hesitated to get too deep into             
 HB 51 without the sponsor.                                                    
                                                                               
 REPRESENTATIVE GREEN said he was trying to make sure there is no              
 conflict.  He recalled a discussion the previous year about federal           
 levels.                                                                       
                                                                               
 COMMISSIONER BROWN replied that she does not believe this is a                
 direct conflict.  The only place where there could conceivably be             
 a conflict is if the state does research and finds that a stricter            
 standard than the federal government's criteria is necessary to               
 protect Alaska's water resources.  Under HB 51, Alaska would not be           
 allowed to use its research, even if it showed a stricter standard            
 was needed.  Commissioner Brown cited the example of turbidity                
 standards.                                                                    
                                                                               
 Number 2209                                                                   
                                                                               
 CO-CHAIRMAN HUDSON said SSHB 128 tries to develop scientific                  
 standards that could be used, if necessary, to change the statutes            
 modified by HB 51.                                                            
                                                                               
 REPRESENTATIVE GREEN referred to Commissioner Brown's indication              
 that there are no federal standards and asked for clarification.              
                                                                               
 Number 2263                                                                   
                                                                               
 COMMISSIONER BROWN explained it is federal criteria guidance.  The            
 criterion is a scientific basis, such as maximum pollutant load,              
 which when applied to water uses becomes a standard.  Although both           
 are loosely called "standards," they are different.                           
                                                                               
 REPRESENTATIVE GREEN suggested that using the EPA criteria and                
 Alaska's uses, there is a way to establish some limit based on the            
 EPA criteria.                                                                 
                                                                               
 COMMISSIONER BROWN responded, "If they have criteria.  There's a              
 number that they don't have criteria for."                                    
                                                                               
 REPRESENTATIVE GREEN said evidently there were some, though.                  
                                                                               
 COMMISSIONER BROWN agreed.                                                    
                                                                               
 Number 2347                                                                   
                                                                               
 REPRESENTATIVE GREEN asked:  If Alaska goes through this type of              
 research group and discovers a lower level of pollutants should be            
 allowed, would the state tell the EPA they believe it should be               
 more stringent and show them why?  And until that could be shown,             
 would there be no change?                                                     
                                                                               
 COMMISSIONER BROWN said where the federal government has criteria,            
 and the scientific research for it, the state would have to prove             
 alternative scientific research to justify a different standard,              
 which could be either less or more stringent.                                 
                                                                               
 REPRESENTATIVE GREEN asked whether at that point, the EPA must go             
 along with it.                                                                
                                                                               
 COMMISSIONER BROWN said the EPA must approve the state's standards.           
 For example, the federal government had just approved a change in             
 Alaska's arsenic standards.                                                   
                                                                               
 REPRESENTATIVE GREEN said he believes that intermediate step is               
 important.                                                                    
                                                                               
 TAPE 97-32, SIDE B                                                            
 Number 0006                                                                   
                                                                               
 REPRESENTATIVE GREEN said he had been concerned that an operator              
 complying with state standards would be subject to rapid change in            
 standards.  He believes this would be more detrimental than slower            
 or more gradual changes by the EPA.                                           
                                                                               
 COMMISSIONER BROWN replied that she believes both federal standards           
 and criteria change more quickly than Alaska's because they have              
 the research tools.  Any change by the ADEC goes through a full               
 public process under the Administrative Procedures Act, and the               
 board would not be empowered to pass standards or regulations.                
                                                                               
 REPRESENTATIVE GREEN said this is advisory to another action.                 
                                                                               
 COMMISSIONER BROWN said it is a precursor to another action.                  
                                                                               
 Number 0103                                                                   
                                                                               
 JAMES BALDWIN, Assistant Attorney General, Governmental Affairs               
 Section, Civil Division (Juneau), Department of Law, came forward             
 to testify.  Although his written opinion of March 4, 1997,                   
 addressed the original version of the bill, the applicable section            
 relating to composition of the Water Science Oversight Board is               
 basically unchanged.                                                          
                                                                               
 MR. BALDWIN said the proposed statute may violate the separation of           
 powers doctrine inherent in the state constitution.  First, it                
 leaves appointment of executive branch officials largely in the               
 hands of someone other than the governor.  It also provides an                
 overly restrictive, limited list for those members whom the                   
 governor may appoint.                                                         
                                                                               
 MR. BALDWIN expressed interest in ensuring the most legally                   
 defensible set of regulations.  He stated concern that regulations            
 relating to water quality would be highly litigious.                          
                                                                               
 Number 0210                                                                   
                                                                               
 MR. BALDWIN said he respects the opinions of Ms. Lauterbach.                  
 However, he believes the correct way to look at whether a board is            
 advisory or not is by who listens to the advice.  If the board                
 gives fairly important advice to fairly important people, such as             
 the commissioner of a principal department of state government, and           
 it is a necessary step in the adoption process of regulations, then           
 those factors together mean "that we have to be very careful."                
 This is an important board, and the fact that it is advisory in               
 nature is not going to carry the day.                                         
                                                                               
 MR. BALDWIN noted that Ms. Lauterbach had not cited a case                    
 supporting her conclusion.  He referred to Bradner v. Hammond,              
 cited in his opinion, which indicates the legislature only has a              
 role in the appointment process when the constitution specifically            
 provides for it.  That case arose from the legislature's desire to            
 confirm executive officials not specifically named in the                     
 constitution.  Mr. Baldwin takes the reasoning in that case to say            
 there really is not much of a role in the appointment process,                
 other than confirmation, for legislators.                                     
                                                                               
 MR. BALDWIN said since this is not a principal department head or             
 quasi-judicial or regulatory board, there would be no confirmation.           
 Therefore, it would be a noticeable legal issue that may get wound            
 up in any litigation resulting over the regulations.  He said the             
 ultimate point to worry about is defending these regulations and              
 making them carry the day when they are adopted.                              
                                                                               
 Number 0305                                                                   
                                                                               
 CO-CHAIRMAN HUDSON responded that he would be more inclined to                
 agree if just the Speaker of the House or President of the Senate             
 presented candidates.  This requires a list of three, all of whom             
 could be struck by the governor, who could then request another               
 list.  The intent is to depoliticize it.  The governor chooses, but           
 from a list managed or developed by the House and Senate.                     
                                                                               
 Number 0376                                                                   
                                                                               
 MR. BALDWIN said on a continuum, it is not as bad as it could be.             
 However, the effect is that the legislative officers make the                 
 appointment.  He suggested a scheme that would pass constitutional            
 muster.  The bill could specify the desired qualifications of                 
 appointees, then require the governor to consult with presiding               
 officers of the legislature.  The bill could also require, for                
 example, that appointees be recognized in their fields.                       
                                                                               
 MR. BALDWIN commended the sponsor for providing real compensation             
 for private members of the board.  He believes that is extremely              
 important for getting good people.                                            
 Number 0426                                                                   
                                                                               
 CO-CHAIRMAN HUDSON pointed out that the bill specifies, at least              
 generally, that candidates have academic credentials and Alaska-              
 based expertise in the field of water quality.  He acknowledged               
 perhaps there could be a deeper definition.                                   
                                                                               
 Number 0442                                                                   
                                                                               
 REPRESENTATIVE GREEN posed a hypothetical situation where the board           
 is established, recommends a change, and that change occurs.  If a            
 court decided that board was not properly constituted, he wondered            
 whether litigation or other legal action could affect the change              
 made on the board's recommendation.                                           
                                                                               
 MR. BALDWIN replied that it is highly possible since the board's              
 recommendation is a necessary step in the enactment process, as he            
 reads it.  He is less sure whether someone could contest the                  
 validity of scientific information provided by the board.  However,           
 one could contend the board's influence is so pervasive over the              
 ADEC's decision-making that there is a defect possibly emanating              
 from the composition of the board itself.                                     
                                                                               
 MR. BALDWIN explained one reason for the separation of powers                 
 doctrine is so each branch of government acts within its own                  
 sphere, without one predominating over another.  He stated, "And if           
 someone were to say, `Well, what happened here is that really this            
 wasn't an executive act at all, it was really a legislative act               
 when the power was given to the commissioner,' then that's a                  
 serious legal defect ...."                                                    
                                                                               
 Number 0518                                                                   
                                                                               
 CO-CHAIRMAN HUDSON referred to subsection (c), beginning on page 3,           
 line 15, and pointed out that the board shall review and comment;             
 meet at the request of the commissioner; provide advice to the                
 department; and report annually to the governor, the House and the            
 Senate.  These are constructive, important elements in order to               
 come up with bipartisan, scientifically-based standards.  He                  
 believes both the industry and the environmental community want               
 that.  He said the action defined in SSHB 128 is all advisory, and            
 he believes it is a well-crafted mechanism to establish standards.            
                                                                               
 Number 0598                                                                   
                                                                               
 MR. BALDWIN pointed out that this board is a necessary element.  If           
 science becomes the basis of regulations, when the regulations are            
 tested, the basis will also be tested, as well as composition of              
 the board and every other element that smart, well-paid lawyers can           
 bring into litigation.                                                        
                                                                               
 CO-CHAIRMAN HUDSON said the board, as he sees it, gets scientists             
 together and tries to put the research together in the kind of                
 language that legislators and the administration will understand.             
 He is not inclined to accept that change.                                     
                                                                               
 Number 0661                                                                   
                                                                               
 CO-CHAIRMAN SCOTT OGAN referred to separation of powers and said              
 the legislature had already delegated a great deal of authority to            
 the ADEC, which regulates and adjudicates the regulations.  He                
 suggested bureaucracy is currently a fourth branch of government.             
                                                                               
 Number 0723                                                                   
                                                                               
 REPRESENTATIVE GREEN asked whether other boards were made of a                
 composite.                                                                    
                                                                               
 MR. BALDWIN said yes, there are other boards where the legislature            
 has charted its own course.  "I wouldn't cite them as reasons why             
 we should do it again," he cautioned.                                         
                                                                               
 Number 0772                                                                   
                                                                               
 JIM BACON came forward to testify.  A commercial fisherman, he                
 supports SSHB 128.  He expressed appreciation for the good-faith              
 effort to address concerns about the original version.                        
                                                                               
 MR. BACON believes the bill seeks to establish good, sound                    
 scientific findings that can address unique situations in Alaska              
 and bring about a system whereby the seafood industry can work in             
 concert with other industries in the state and move forward.  "And            
 that is something that we would very much like to do," he                     
 concluded.                                                                    
                                                                               
 Number 0863                                                                   
                                                                               
 SUSAN SCHRADER, Executive Director, Alaska Environmental Lobby                
 (AEL), came forward to testify.  She advised that member groups               
 represent over 10,000 Alaskans, united in the belief that there is            
 ample room in Alaska for both a strong state economy and strong               
 environmental protection.  They also believe there cannot be one              
 without the other.                                                            
                                                                               
 MS. SCHRADER said resource-extracting industries must be able and             
 willing to expend funds to conduct activities with the utmost care            
 for the resources.  They must also recognize and respect other                
 water resource users who depend on its purity for their livelihood            
 and enjoyment.  Under the public trust doctrine, the legislature              
 has an affirmative duty to manage water resources for the public              
 good, not just for private gain of individual interests.                      
                                                                               
 MS. SCHRADER expressed appreciation for the sponsor's efforts in              
 working with the ADEC and in keeping the AEL briefed.  The AEL is             
 pleased the interim standards have been deleted, which goes a long            
 way towards making the bill more balanced.                                    
                                                                               
 Number 0971                                                                   
                                                                               
 MS. SCHRADER cautioned that a couple of concerns prevent the AEL              
 from fully endorsing SSHB 128.  First, as discussed by others, is             
 the board composition.  Whether or not it will be politicized, it             
 will certainly have that appearance.  For that reason, the AEL                
 believes it would be difficult for the board to gain the confidence           
 of the many stakeholders involved in water quality issues.                    
                                                                               
 MS. SCHRADER said the AEL foresees that SSHB 128 will result in               
 good science and the adoption of improved regulations that industry           
 will feel more comfortable with.  However, the ADEC's funding is              
 inadequate to implement these regulations.  The AEL supports                  
 continued dialogue along the lines that SSHB 128 has initiated.               
 They suggest additional funding for the ADEC, so that department              
 can continue to fulfill its mission of protecting water quality.              
                                                                               
 Number 1088                                                                   
                                                                               
 REPRESENTATIVE DYSON asked how Ms. Schrader would propose that the            
 board members be selected to meet the objectivity criteria.                   
                                                                               
 MS. SCHRADER indicated she is not familiar with water quality                 
 research in particular.  In medical research, her own background,             
 the research itself is removed from political influences.                     
                                                                               
 Number 1152                                                                   
                                                                               
 REPRESENTATIVE DYSON said someone must make a choice.  He asked               
 whether Ms. Schrader believes it would be more objective if the               
 governor chose.                                                               
                                                                               
 MS. SCHRADER said she does not know because she lacks real                    
 knowledge of water quality research.                                          
                                                                               
 REPRESENTATIVE DYSON questioned whether it would be perceived as              
 more objective if the AEL or industrial users selected the board.             
                                                                               
 Number 1218                                                                   
                                                                               
 CO-CHAIRMAN HUDSON advised that there is a fiscal note from the               
 ADEC.  He said there is a fairly strong indication that substantial           
 funds may be available from federal sources or others.  He believes           
 the ASTF was ultimately designed to participate in producing                  
 scientific standards that both the environmental and developmental            
 communities can agree upon.                                                   
                                                                               
 Number 1258                                                                   
                                                                               
 CO-CHAIRMAN OGAN referred to Representative Dyson's questions.  He            
 commented that the logical conclusion is to have a diverse group              
 select the board.  He believes SSHB 128 reflects that.                        
                                                                               
 MS. SCHRADER responded that the AEL does not believes the bill                
 reflects the diversity of input with which they would feel                    
 comfortable.                                                                  
                                                                               
 Number 1325                                                                   
                                                                               
 REPRESENTATIVE REGGIE JOULE suggested a highly politicized board              
 may be positive because it places participants under intense                  
 scrutiny.  He expressed concern over funding and suggested passing            
 a fiscal note reflecting support, rather than just having the                 
 legislation sit on the books.  If for some reason other funding               
 were unavailable, perhaps the fiscal note could kick in.                      
                                                                               
 Number 1460                                                                   
                                                                               
 CO-CHAIRMAN HUDSON replied that he would be diligently searching              
 for funding.  He prefers to stick with the mode in place, which is            
 to create the board, establish the process, embark on a search for            
 scientific funds and "go for it."                                             
                                                                               
 REPRESENTATIVE JOULE noted that in his district, there has been               
 some mining development, and there will be more in other areas.               
 This provides an avenue in rural Alaska for people to obtain work.            
 But it also provides a safety net for ensuring development occurs             
 in an environmentally sound manner.                                           
                                                                               
 Number 1594                                                                   
                                                                               
 CO-CHAIRMAN HUDSON advised that SSHB 128 next goes to the House               
 Finance Committee.  He stated his intention, as it moves from one             
 committee to the next, to discuss again with the commissioner and             
 others whether fine tuning is necessary.                                      
                                                                               
 REPRESENTATIVE GREEN said he has several questions.  He offered to            
 talk with the sponsor about them privately.                                   
                                                                               
 CO-CHAIRMAN HUDSON announced he would hold SSHB 128 until the next            
 meeting.                                                                      

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