Legislature(2007 - 2008)BELTZ 211

03/28/2008 01:30 PM Senate JUDICIARY


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ HB 149 POLLUTANT DISCHARGE PERMITS TELECONFERENCED
Moved CSHB 149(RES) Out of Committee
+ HB 286 IMPERSONATING A PUBLIC SERVANT TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 183 REPEAL DEFINED CONTRIB RETIREMENT PLANS
Moved CSSB 183(JUD) Out of Committee
               HB 149-POLLUTANT DISCHARGE PERMITS                                                                           
                                                                                                                                
CHAIR FRENCH  announced the consideration  of HB 149.  Before the                                                               
committee was CSHB 149(RES). The bill was heard previously.                                                                     
                                                                                                                                
1:41:05 PM                                                                                                                    
RON  WOLFE, Natural  Resource Manager  for Sealaska  Corporation,                                                               
said that  Sealaska has significant  interest in 22  log transfer                                                               
facilities (LTF)  in Southeast Alaska,  all of which  are covered                                                               
by  a general  National  Pollutant  Discharge Elimination  System                                                               
(NPDES)   permit.  For   years  Sealaska   has  supported   state                                                               
assumption  of the  NPDES program  just as  45 other  states have                                                               
done.                                                                                                                           
                                                                                                                                
The three issues  regarding NPDES primacy are  whether the Alaska                                                               
Department  of Environmental  Conservation  (DEC) may  be a  less                                                               
trustworthy  steward of  Alaska's waters  than the  Environmental                                                               
Protection  Agency   (EPA);  whether   DEC  personnel   have  the                                                               
qualifications to administer the  program; and Sealaska's comfort                                                               
level  as  a  federally-recognized  Indian  tribe  regarding  the                                                               
degree of  consultation it  will receive  if DEC  assumes primary                                                               
for the NPDES program.                                                                                                          
                                                                                                                                
To illustrate the  DEC commitment to protecting  water quality he                                                               
compared provisions of the LTF  permits that were inserted by EPA                                                               
and those that  were imposed by DEC. The permits  are intended to                                                               
limit  bark  on the  ocean  floor  as  logs are  transferred  for                                                               
shipment  by   sea.  EPA  permit   conditions  are   the  typical                                                               
operational  restrictions found  in any  NPDES permit,  while DEC                                                               
created   a  plan   process  that   forces  operators   to  begin                                                               
remediation of bark accumulation at very low thresholds.                                                                        
                                                                                                                                
1:43:52 PM                                                                                                                    
MR.  WOLFE  said DEC  personnel  are  qualified to  regulate  LTF                                                               
operations   because  of   their  on-the-ground   knowledge.  DEC                                                               
regulators have  made a great  effort to visit the  LTFs, examine                                                               
the  operations, and  carefully review  water quality  around the                                                               
facilities.  In contrast,  gaining field  experience with  Alaska                                                               
LTFs has never been an  EPA priority. That's understandable given                                                               
the  significant  water  quality  issues  in  this  region.  When                                                               
Sealaska's LTF permits  were renewed, EPA contracted  with DEC to                                                               
draft the permits.                                                                                                              
                                                                                                                                
1:45:38 PM                                                                                                                    
Finally,  although Sealaska  has  always had  the opportunity  to                                                               
comment on  EPA proposals, that  federal agency has  never sought                                                               
tribal consultation. In contrast,  DEC has always sought Sealaska                                                               
views  on policy  initiatives affecting  Southeast Alaska  at the                                                               
earliest stages  of those proposals. Oftentimes  Sealaska's views                                                               
have not  prevailed, but  it has  always felt  that DEC  was very                                                               
mindful  of the  need to  bring affected  tribes into  the policy                                                               
development process. DEC  has not relegated Sealaska  to the role                                                               
of reacting to policy decisions through general public comments.                                                                
                                                                                                                                
1:46:31 PM                                                                                                                    
KATHIE  WASSERMAN, Executive  Director,  Alaska Municipal  League                                                               
(AML), said  the AML has  submitted written  testimony supporting                                                               
HB 149. She  explained that when she became the  mayor of Pelican                                                               
she learned  that their NPDES  permit had expired six  years ago,                                                               
but the EPA had never contacted  the city. When she contacted EPA                                                               
it became clear that they  knew nothing about small remote Alaska                                                               
communities. DEC helped Pelican get  the permit back on track. As                                                               
she said in her letter, there  are some concerns with DEC, but at                                                               
least it  has a process and  everyone knows who to  call and talk                                                               
to. AML is in favor of primacy  going to the State of Alaska, she                                                               
said.                                                                                                                           
                                                                                                                                
1:49:02 PM                                                                                                                    
VANESSA  SALINAS,  Campaign  Director, Alaskans  for  Responsible                                                               
Mining, said  giving the  state primacy sounds  like a  good idea                                                               
because  permitting  responsibilities  should  be  close  to  the                                                               
projects, but she  questions the feasibility of such  a move when                                                               
DEC is so woefully under staffed.  The fiscal note attached to SB
110 that mandated this move back  in 2005 required more than $1.5                                                               
million in  general funds  revenue each  year. Industry  fees are                                                               
capped at  16 percent and she  wonders where the funds  will come                                                               
from to fund this initiative.                                                                                                   
                                                                                                                                
According to  a program coordinator  with DEC,  just 7 of  the 17                                                               
environmental health  officers that have  been hired in  the last                                                               
seven  years are  still  employed  and five  have  been with  the                                                               
agency  for   six  months  or  less.   The  additional  long-term                                                               
employees  may  retire in  the  next  5  years. Clearly,  DEC  is                                                               
experiencing  a staffing  shortage and  there is  no solution  in                                                               
sight. State  salaries are down  and the benefit package  for new                                                               
hires has  been severely cut.  Until new  hires can be  offered a                                                               
competitive  employment package,  qualified  candidates won't  be                                                               
knocking  at  agency  doors.  The   division  of  geological  and                                                               
geophysical  survey  director  has   stated  that  the  increased                                                               
mineral activity this  year will test that  section. According to                                                               
a  DNR  career  development   coordinator,  state  government  is                                                               
looking at a 45 percent retirement rate through 2011.                                                                           
                                                                                                                                
Another area of concern is  tribal sovereignty. EPA has the legal                                                               
obligation to  formally consult  with Alaska  Native tribes  on a                                                               
government-to-government   basis  on   all  permits.   Under  the                                                               
proposed  Alaska program,  tribes will  lose sovereign  authority                                                               
because the state doesn't formally recognize tribes.                                                                            
                                                                                                                                
1:51:46 PM                                                                                                                    
MS. SALINAS said that DEC  is only committed to making reasonable                                                               
efforts to inform  and seek participation of  local and federally                                                               
recognized tribes. She  urged the committee to  halt the transfer                                                               
of  the NPDES  permit  authority until  funds  are allocated  for                                                               
adequate departmental  staffing, and tribal trust  obligations of                                                               
government-to-government  relations  are  addressed in  a  manner                                                               
that is acceptable to tribes.                                                                                                   
                                                                                                                                
1:52:24 PM                                                                                                                    
JASON  BRUNE, Executive  Director,  Resource Development  Council                                                               
(RDC), said  RDC's diverse membership  of includes: oil  and gas,                                                               
tourism,   fisheries,   mining,   timber,   construction,   labor                                                               
organizations,  all of  the regional  Native corporations,  local                                                               
communities,  and  a  variety  of   industry  support  firms.  He                                                               
characterized HB 149  as a cleanup bill that relates  to what the                                                               
legislature  charged  DEC to  do  in  2005  under SB  110;  these                                                               
provisions are required by EPA  for Alaska to assume primacy over                                                               
NPDES.  Currently only  five states  do not  have primacy.  For a                                                               
state  to obtain  primacy its  requirements must  be at  least as                                                               
strong as the  EPA requirements, and HB 149 makes  the changes to                                                               
ensure that Alaska statutes achieve  this. It goes without saying                                                               
that Alaskans have a strong  interest in ensuring that things are                                                               
done right  in their state so  NPDES primacy for Alaska  is a no-                                                               
brainer. He urged the committee to  move HB 149 so that the final                                                               
steps toward assuming this program can be completed.                                                                            
                                                                                                                                
1:54:52 PM                                                                                                                    
BOB SHAVELSON,  Executive Director,  Cook Inlet Keeper,  said the                                                               
organization  has  worked  on  water  quality  and  fish  habitat                                                               
protection for about 13 years. There  are a lot of good arguments                                                               
for  getting  primacy,  but  the   bill  that  passed  under  the                                                               
Murkowski Administration  has a number of  flaws, principally the                                                               
workgroup  that set  up  the process  was  dominated by  industry                                                               
dischargers.   There  was   a  municipal   seat  for   wastewater                                                               
dischargers, but  the public was not  part of the process,  so it                                                               
was  a lopsided  prospect.  The notion  of  states rights  arises                                                               
because  that workgroup  recommended  not allowing  the state  to                                                               
have more  strict laws than  the federal government.  That denies                                                               
the fact that Alaska has the  best fish management program in the                                                               
country and  it ties  Alaska's hands.  "If we're  concerned about                                                               
states rights  we should  recognize that  there's a  provision in                                                               
there that undermines those rights," he said.                                                                                   
                                                                                                                                
MR. SHAVELSON  pointed out that  the bill caps fees  for industry                                                               
so  the  general fund  and  the  public  will  pick up  any  cost                                                               
overruns from the  very low $1.5 million fiscal  note attached to                                                               
SB 110.  By comparison industry  pays 57  percent of the  fees in                                                               
Oregon, 75  percent in  Washington, and  100 percent  in Montana.                                                               
Alaska   will  be   providing  a   public  subsidy.   Looking  at                                                               
streamlining is  good, but when  it goes too far,  permit quality                                                               
is  diminished. As  currently proposed  the  permitting staff  is                                                               
reduced by 28  percent, and the compliance  and enforcement staff                                                               
is reduced by 16  percent, so DEC would be trying  to do the same                                                               
amount of work that EPA has  done with less staff. RDC fears that                                                               
will  result  in  rollbacks  to  protection  of  fish  and  water                                                               
quality.                                                                                                                        
                                                                                                                                
Referring to  comments Mr. Wolfe  made about  tribal sovereignty,                                                               
he said that  RDC understands that the executive  order was meant                                                               
to   cover    federally   recognized   sovereign    tribes,   not                                                               
corporations. In working with tribes  in Cook Inlet he found that                                                               
EPA   has  been   very  good   in  the   government-to-government                                                               
consultation required  by that  executive order.  DEC has  made a                                                               
good effort, but  there is no legal recognition of  tribes at the                                                               
state level.  That is reflected in  this final plan and  there is                                                               
considerable loss of tribal sovereignty.  He suggested that there                                                               
is a need  for a third-party review to understand  the fiscal and                                                               
substantive impacts. The system in place  works and it would be a                                                               
good idea to look carefully and  get an objective opinion on what                                                               
this change will mean.                                                                                                          
                                                                                                                                
1:58:28 PM                                                                                                                    
CHAIR FRENCH asked who would conduct the third-party review.                                                                    
                                                                                                                                
MR. SHAVELSON  suggested a broad-based commission  that includes:                                                               
industry, tribes, fishing, conservation, and the public.                                                                        
                                                                                                                                
EARL  HUBBARD,  Vice  President of  Regulatory  Affairs,  Trident                                                               
Seafoods, said  the more  Trident tunes in  to the  advantages of                                                               
primacy,  the  more it  looks  at  it  as  a problem  solver.  He                                                               
explained that  to process  seafood in Alaska  a company  needs a                                                               
general or  individual federal NPDES discharge  permit. A problem                                                               
with EPA  is that resources to  reissue or write new  permits are                                                               
severely limited. In  fact, every single general  permit that EPA                                                               
has issued has expired. A new  discharger wishing to get into the                                                               
fish  processing business  could not  do so  legally because  EPA                                                               
does not  have the  resources to  write a new  permit. That  is a                                                               
difficulty when  you look at  the considerable  contribution that                                                               
seafood processing  makes to the  economy of Alaska, he  said. It                                                               
most  definitely is  not  possible to  have  allowed every  NPDES                                                               
discharge permit in  the state to expire and at  the same time to                                                               
argue   that   EPA   has  adequate   resources   to   cover   its                                                               
responsibilities.                                                                                                               
                                                                                                                                
2:03:05 PM                                                                                                                    
MR. HUBBARD said  that the alternative to a general  permit is an                                                               
individual permit and for those  there's a 3-5 year waiting list.                                                               
Consider,  he said,  that every  general permit  has expired  and                                                               
there is  no opportunity to  discharge legally for 3-5  years for                                                               
any newcomer  to the  industry. The impact  to coastal  and rural                                                               
communities  in Alaska  is stunning.  EPA does  offer enforcement                                                               
discretion  in  the  absence of  an  authority,  but  enforcement                                                               
discretion isn't needed unless you're  breaking the law. In these                                                               
litigious  times nobody  wants to  rely on  that. These  are good                                                               
people, but there aren't enough of them.                                                                                        
                                                                                                                                
MR. HUBBARD  acknowledged that there  have been issues  with DEC,                                                               
but that  agency does respond  and listen  to find ways  that are                                                               
legal  and  appropriate.  Primacy  is an  opportunity  with  good                                                               
timing because  the components  are in place,  he said.  You have                                                               
DEC professionalism,  the tools, and an  application that's ready                                                               
to go.  EPA is probably  thankful that Alaska  can do this  so it                                                               
can focus on the three other Region 10 states.                                                                                  
                                                                                                                                
2:07:04 PM                                                                                                                    
NIKOS  PASTOS,  Environmental  Coordinator,  Alaska  Inter-Tribal                                                               
Council,  said he's  also treasurer  of a  non-profit called  The                                                               
Center for  Water Advocacy. He  read a resolution  opposing NPDES                                                               
primacy   until  the   State   of   Alaska  demonstrates   tribal                                                               
consultation. It resolves that transferring  NPDES primacy to the                                                               
state is an  act of cultural destruction in  violation of federal                                                               
statutory and trust obligation.  Until the state has demonstrated                                                               
a  record of  government-to-government  consultation with  tribal                                                               
governments. All the tribes that  have been consulted are opposed                                                               
to the  state taking primacy. It  would be a mistake  to say that                                                               
the  state would  manage discharge  permits as  well as  EPA. The                                                               
federal government is  obligated to include tribes  and the state                                                               
hasn't  even recognized  the legitimacy  of long-standing  tribal                                                               
governments  that  existed  before  the United  States  became  a                                                               
country.                                                                                                                        
                                                                                                                                
2:11:13 PM                                                                                                                    
MR. PASTOS said  there is a consensus among tribes  that water is                                                               
sacred; it's  vital to  the well  being of  the people  and their                                                               
traditional food. He doesn't  understand why foreign corporations                                                               
have more  priority than  people who have  lived in  Alaska since                                                               
time  immemorial.  There are  flaws  in  the way  the  permitting                                                               
process would  be streamlined for large  mining industry, foreign                                                               
fishing fleets,  and outside timber interests.  The Alaska Inter-                                                               
Tribal  Council is  opposed to  HB 149  and to  the state  taking                                                               
primacy.                                                                                                                        
                                                                                                                                
2:12:43 PM                                                                                                                    
CHAIR FRENCH asked  for a copy of the resolution  to make it part                                                               
of the record.                                                                                                                  
                                                                                                                                
CARL   WASSILIE,   Yupik   Alaskan  and   member   of   Resisting                                                               
Environmental Destruction  on Indigenous Lands (REDOIL),  said he                                                               
is  speaking  on  behalf  of  Alaska  Action  Center  (AAC).  AAC                                                               
supports communities that are impacted  by outside interests that                                                               
threaten the well-being and health  of future generations. REDOIL                                                               
is  a   group  of  Alaska   Natives  that  addresses   human  and                                                               
environmental impacts of the fossil  fuel industry in Alaska, and                                                               
supports   sustainable  development   on  indigenous   lands.  He                                                               
supports tribal  self-determination and the recognition  that the                                                               
state has  failed to recognize  the tribes of Alaska.  That needs                                                               
to be addressed  before the issues about the  permitting system ,                                                               
he said.  The relationship between  the state and the  tribes and                                                               
the  communities   in  Alaska  need   to  be  well   defined  and                                                               
established.                                                                                                                    
                                                                                                                                
MR.  WASSILIE said  he  and REDOIL  are opposed  to  HB 149.  It'                                                               
important  to  know  the  history  of  the  Clean  Water  Act  to                                                               
understand its relation with human  health impacts. The fact that                                                               
that  has  been forgotten  can  be  seen  in  Cook Inlet  in  the                                                               
streamlined process of waiving permits  for more pollution. These                                                               
issues need to  be addressed before permitting is  turned over to                                                               
the  state, he  said. At  this time  the state  doesn't have  the                                                               
personnel  capacity  or  the  relationship  with  communities  to                                                               
recognize tribes  even though  most industry  is operating  in or                                                               
around tribal waters.                                                                                                           
                                                                                                                                
2:17:00 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked DEC  to respond  to the  testimony on                                                               
the   loss   of  tribal   sovereignty,   government-to-government                                                               
interaction,  and whether  DEC has  a plan  to consult  sovereign                                                               
tribes as EPA does now.                                                                                                         
                                                                                                                                
2:18:31 PM                                                                                                                    
LARRY  HARTIG, Commissioner,  Alaska Department  of Environmental                                                               
Conservation,  explained that  tribal  consultation  does not  go                                                               
away  with  state  primacy.  EPA  still  has  its  government-to-                                                               
government  obligations to  the tribe  and its  oversight of  all                                                               
permits  that  DEC would  issue.  Tribes  would not  have  direct                                                               
consultation with DEC,  but they could consult with  EPA and have                                                               
all the  rights they  have now.  If EPA  thought that  DEC wasn't                                                               
listening to the  tribe it would say so. The  other point is that                                                               
DEC is making  a concerted effort to have in  place an equivalent                                                               
government-to-government consultation for  the APDES program. DEC                                                               
developed a  guidance document  to get  tribes interested  and is                                                               
sending  copies to  tribes  that have  expressed  a concern.  The                                                               
document  is  still   in  draft  form  and   comments  are  being                                                               
accepting. That will  be part of the application  package to EPA,                                                               
which  is scheduled  to be  presented on  May 1.  As part  of the                                                               
application  package,  it  will   become  part  of  the  program.                                                               
However, if better ways of  doing the consultation are found that                                                               
could  be modified.  DEC is  attuned to  the issue  and ready  to                                                               
provide the  functional equivalent of  what tribes have  now with                                                               
the  federal government.  Because the  State of  Alaska is  not a                                                               
nation there can only be  a state-to-tribe relationship, which by                                                               
its very  nature will be  different than  the government-to-tribe                                                               
relationship. It will  have to be different, but  it doesn't mean                                                               
the DEC won't listen to their concerns.                                                                                         
                                                                                                                                
2:21:21 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked about  DEC recruitment  and retention                                                               
and the  statement that it may  not be able handle  the increased                                                               
workload associated with primacy.                                                                                               
                                                                                                                                
COMMISSIONER  HARTIG  said that  Mr.  Shavelson  brought up  good                                                               
points, but  they also  apply to federal  and state  agencies and                                                               
private industry.  Everyone is faced with  those demographics. It                                                               
comes down to  whether the state will be  a competitive employer.                                                               
He is  a member of the  Governor's task force on  recruitment and                                                               
retention and  she is  acting on  recommendations that  have been                                                               
made, he  said. DEC has  an internal  advisory group, and  it has                                                               
also contracted for  a private survey to  improve recruitment and                                                               
retention. DEC probably compares with  EPA or any other agency on                                                               
this issue, he said.                                                                                                            
                                                                                                                                
2:23:53 PM                                                                                                                    
COMMISSIONER  HARTIG  said the  other  point  that Mr.  Shavelson                                                               
raised about DEC having fewer people  to work on primacy than EPA                                                               
doesn't take into  account the current DEC  permitting staff. His                                                               
recollection is  that the combination  of the  current permitting                                                               
staff and  the NPDES staff  will be  larger than the  current EPA                                                               
permitting staff.                                                                                                               
                                                                                                                                
LYNN  TOMICH KENT,  Director, Division  of  Water, Department  of                                                               
Environmental  Conservation, explained  that  to implement  NPDES                                                               
primacy  DEC will  have 43  positions dedicated  to the  program.                                                               
That includes  compliance, permitting,  record keeping,  and data                                                               
management.                                                                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI asked if 43 new positions will be created.                                                                 
                                                                                                                                
MS.  KENT  replied  that  includes  existing  staff  and  the  13                                                               
additional  positions that  were  allotted under  SB  110; 12  of                                                               
those positions have been filled.                                                                                               
                                                                                                                                
2:25:35 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked what percentage  of the fees  will be                                                               
paid by industry.                                                                                                               
                                                                                                                                
COMMISSIONER HARTIG  explained that  it varies among  states, but                                                               
there  is a  misassumption  here that  only  industry gets  NPDES                                                               
permits. Everybody that  has a discharge of  pollutants to waters                                                               
of  the United  States needs  a  permit so  , municipalities  and                                                               
small villages  would carry  the ball too.  Few states  cover 100                                                               
percent  of the  program.  In the  last year  or  so the  General                                                               
Accounting Office  (GAO) tried  to get EPA  to require  states to                                                               
fully  fund  NPDES  programs  by  providing  a  disincentive  for                                                               
federal grant  dollars. There  was pushback  from the  states and                                                               
GAO backed  off. The states  said they  shouldn't be told  how to                                                               
spend   their  general   fund  dollars.   He  believes   Alaska's                                                               
percentage is  about the same  as other  states, and the  oil and                                                               
gas  industry already  supports a  large portion  of the  program                                                               
through  general  fund  contributions.  He  added  that  the  fee                                                               
structure is up to the legislature and not DEC.                                                                                 
                                                                                                                                
2:27:48 PM                                                                                                                    
CHAIR FRENCH clarified that he  is commenting tangentially on Mr.                                                               
Shavelson's point  that some  states get  from 57-100  percent of                                                               
their fees paid  by industry, and he is saying  that is something                                                               
the legislature has the authority to institute.                                                                                 
                                                                                                                                
COMMISSIONER HARTIG  replied that is  up to the  state. Currently                                                               
Alaska permittees  pay 16  percent of the  program fees  and more                                                               
municipalities than industry folks have permits.                                                                                
                                                                                                                                
SENATOR  WIELECHOWSKI recalled  that there  was a  question about                                                               
DEC writing  letters to  EPA on  behalf of  industry dischargers,                                                               
and  asked if  DEC  would  continue that  practice  if the  state                                                               
assumes primacy.                                                                                                                
                                                                                                                                
COMMISSIONER HARTIG replied it's not a policy.                                                                                  
                                                                                                                                
SENATOR WIELECHOWSKI asked  if DEC would do that  anymore if this                                                               
bill is enacted.                                                                                                                
                                                                                                                                
COMMISSIONER HARTIG said no.                                                                                                    
                                                                                                                                
2:29:09 PM                                                                                                                    
SENATOR THERRIAULT asked  if the dynamic before was  that DEC was                                                               
encouraging  the EPA  to issue  a  permit. If  the state  assumes                                                               
primacy it  would be the  issuing entity  so it wouldn't  write a                                                               
letter to itself.                                                                                                               
                                                                                                                                
COMMISSIONER  HARTIG   explained  that   DEC  will   regulate  by                                                               
following  the  law, the  science,  the  facts, and  good  public                                                               
policy.                                                                                                                         
                                                                                                                                
CHAIR FRENCH asked if DEC  has contacted the Inter Tribal Council                                                               
to discuss sovereign-to-sovereign relations.                                                                                    
                                                                                                                                
COMMISSIONER HARTIG  said he welcomes  that conversation;  he has                                                               
an  open  door. "We're  serious  about  wanting  to have  a  good                                                               
relationship with the tribes." Good input  is part of that and he                                                               
looks  forward  to  any  comments  or  discussion  on  the  draft                                                               
guidance.                                                                                                                       
                                                                                                                                
2:31:07 PM                                                                                                                    
SENATOR MCGUIRE motioned  to report CSHB 149  from committee with                                                               
individual recommendations and attached fiscal note(s).                                                                         
                                                                                                                                
CHAIR FRENCH  announced that without objection,  CSHB 149(RES) is                                                               
moved from the Senate Judiciary Committee.                                                                                      
                                                                                                                                

Document Name Date/Time Subjects