Legislature(1997 - 1998)
02/05/1997 01:35 PM Senate CRA
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* first hearing in first committee of referral
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SB 50 PUBLIC WATER SUPPLY VIOL: ADMIN PENALTIES
CHAIRMAN MACKIE brought SB 50 before the committee as the next
order of business.
TAPE 97-5, SIDE B
Number 001
JANICE ADAIR , Director, Division of Environmental Health,
Department of Environmental Conservation, explained Congress
reauthorized the Safe Drinking Water Act (SDWA) in 1996 and added
a new requirement for primacy of the drinking water program.
Another change was requiring primacy for continued access to
federal construction funds for drinking water systems.
Ms. Adair pointed out that the state of Alaska has primacy for the
drinking water program at this time as does all other states except
for Wyoming. Primacy means that the state manages and enforces the
terms of the SDWA in lieu of the federal government. It affords
the state several benefits, including the ability to waive certain
monitoring requirements for specific water systems. She related
these waivers have saved almost $1.5 million in laboratory costs
for systems that are located in the districts of committee members.
Primacy also allows the department to work one-on-one with systems
on solving their problems, and that helps ensure the delivery of
safe water to the communities served.
SB 50 will provide DEC the authority to establish a program for
administrative penalties. It sets an amount of $1,000 per day per
violation for systems that serve more than 10,000 people, and for
all other systems, the penalty may not exceed $750 per day.
On page 2, beginning with line 10 and ending on page 3, line 4, it
outlines the factors the department thought were important to be
considered when establishing an amount of a penalty.
Ms. Adair pointed out that Section 7 of the bill delays the actual
effective date of the penalty authority until the EPA tells the
state it must have administrative penalty authority to retain
primacy for the drinking water program.
Number 035
CHAIRMAN MACKIE referred to the title of the bill and asked for an
explanation of change to the Alaska Rules of Civil Procedure. MS.
ADAIR explained that the administrative penalty for a violation is
a federal mandate. The Civil Procedure Rule change is not a
requirement of federal law, but where there is a water system that
refuses to pay a penalty and it necessitates taking them to court
in order to get them to do what needs to be done and to pay the
penalty, then that change would allow the state to recover those
attorney fees.
Number 050
SENATOR HOFFMAN referred to subsection (d) on page 3, line 8, which
provides a 30-day period in which a person can file an appeal after
receiving an assessment notice on a penalty, and suggested it was
too short a tim period and that it should be changed to 45 days.
MS. ADAIR stated the department would not have a problem with his
suggested change.
SENATOR HOFFMAN then referred to page 3, line 19, which provides
that the person who receives an administrative penalty can file a
notice of appeal in the superior court. He pointed out that people
in the smaller communities would have to fly in to file an appeal,
and he questioned why that couldn't be done in a district court
because there aren't that many superior courts in the state. BRECK
TOSTEVIN , Assistant Attorney General, Department of Law, responded
that traditionally administrative appeals from an agency action go
to superior court and a superior court acts as an appellate court
and reviews the agency action as opposed to the district court, so
that's why those provisions were drafted that way.
SENATOR HOFFMAN referred back to subsection (d) and said it
provides that the department may extend the time periods in the
subsection for good cause. He then asked if there was a definition
of "good cause." MS. ADAIR answered that she did not know, but it
would be something that the department would want to address the
regulatory development process as they put the program together.
Number 105
SENATOR WILKEN referred to the sectional analysis and asked if this
issue only deals with Anchorage, Juneau, Fairbanks, one air force
base and two army bases. MS. ADAIR said those six systems are the
ones that serve more than 10,000 people so those would be the
systems that would be subject to the $1,000 per day per violation
penalty. For all other systems in the state with less 10,000
people are subject to a $750 per day per violation penalty.
SENATOR WILKEN inquired when the last time there was an issue that
required the filing of a lawsuit in a matter such as drinking
water. MS. ADAIR thought it was in the very early 1990's, it was
a system in Southeast Alaska, and it was a criminal issue.
SENATOR WILKEN voiced his concern that as a society we need to talk
about administrative penalties and, particularly, allowing DEC to
impose them unilaterally. He said this is probably an excellent
example of the heavy handed way that government controls what we
do, both state and federal. He suggested there needs to be a
better way to do this and not to just give carte blanche approval
to DEC to sanction something as simple as providing good drinking
water.
CHAIRMAN MACKIE asked Ms. Adair what would happen if this
legislation did not pass. MS. ADAIR replied that at some point in
time, the EPA would begin the process to withdraw primacy for a
drinking water program, and if primacy was withdrawn, the program
would become an enforcement only program. She related that 85
percent of the state's drinking water program is funded by EPA,
which amounts to approximately $1 million. The 1996 amendments to
SDWA added construction funds for drinking water systems, and in FY
98 that is expected to be about $28 million to the state.
Number 180
In a brief discussion on why the appeals have to go a superior
court instead of a district court, it was concluded that it is a
standard that is set out in the Administrative Procedures Act.
SENATOR DONLEY suggested that could be amended if Senator Hoffman
thought his constituents would be better served by access to
district court.
Number 215
SENATOR HOFFMAN stated he agrees with Senator Wilken's statement
about the heavy hammer that this legislation is giving DEC, but
because it is required in order for the state to comply with the
changes in SDWA and to continue to receive funds, he suggested
working on it to make sure that the department does not have so
much discretion on the use of that heavy hammer.
KEITH KELTON , Director, Division of Facility Construction &
Operation, Department of Environmental Conservation, said what
Congress is attempting to do with the changes in SDWA is respond to
an unfunded mandate complaint. They are putting a carrot in this
Safe Drinking Water Act reauthorization that says they will fund a
low interest loan program with state participation. The initial
funding, starting in FY 96, was $27 million and the state has to
put in a match of $5 million, so the there will be a total of $32
million for low interest loans for solving community infrastructure
problems. The stick they are throwing in is the administrative
penalty, and if the state doesn't do the administrative penalty, it
loses primacy and the funding that goes with it, he said.
Number 365
SENATOR WILKEN commented that on the campaign trail he heard a lot
of good things about what the Legislature had been doing in the
rural areas in regard to sewer and water, and his comments, by no
means, should be taken that he doesn't support that. He just wants
to make sure that the process isn't slowed down by having someone
or some group get out of control and forget where the power really
lies, and that's why he speaks against the ability to just simply
write an order that stops the process.
MR. KELTON related that probably the primary recipients of these
loan funds are the larger urban communities, but any municipal
government can apply. For instance, Anchorage has received well
over $30 million in the waste water program. The smaller
communities normally rely on a grants program rather than the loan
program.
CHAIRMAN MACKIE requested that Senator Hoffman and Senator Wilken
take a further look at this issue, both from an urban and rural
perspective, and work with the people at DEC to see if some of
these problems can be worked out before another hearing is
scheduled on the legislation.
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