Legislature(2007 - 2008)BUTROVICH 205
04/11/2007 03:30 PM Senate RESOURCES
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Conocophillips | |
SB91 | |
SB44 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
*+ | SB 91 | TELECONFERENCED | |
*+ | SB 44 | TELECONFERENCED | |
+ | TELECONFERENCED | ||
+ | TELECONFERENCED |
SB 91-POLLUTANT DISCHARGE PERMITS 4:21:42 PM CHAIR HUGGINS announced SB 91 to be up for consideration. LARRY HARTIG, Commissioner, Department of Environmental Conservation (DEC), introduced the SB 91. He said this issue is important to the Governor because it is essential for the state to gain NPDS primacy - that's the right to issue water discharge permits in the state of Alaska. Currently, EPA does that out of its offices in Seattle. Primacy in this bill is also very important to the public and it is one of the top five issues raised in the transition team's report to the Governor. COMMISSIONER HARTIG said primacy is important to industries in the state that require NPDS permits. A series of workshops has been going on for the last three years in which industry has gone through the issues it sees with the state gaining primacy and they are very supportive of it and are even willing to pay fees just to see it happen. Primacy is not new, he said; it goes back at least to the Knowles Administration and perhaps further than that. In 2005 the Alaska legislature directed the DEC to pursue primacy. Since then a lot of effort has been put into getting it and it the state has spent about $3.7 million so far in hiring people and training them, getting the regulations and statutes drafted and preparing the application to EPA. COMMISSIONER HARTIG emphasized that this is not major legislation, but it is critical. It is part of the state's application for primacy, which also includes the regulations, the statutes, description of program, and a statement from the Attorney general that DEC has the necessary authorities. The EPA looks at that as a whole package as it decides whether to allow the state primacy or not. If a piece is missing, the whole process is stopped. 4:26:53 PM CAMERON LEONARD, Assistant Attorney General, Department of Law, highlighted the three major and the three lesser changes. He began with section 1, which he said should be read in conjunction with section 5 because they both deal with monitoring, sampling and reporting the DEC can require of permitees or of facilities outside of the permit. This is important because conditions that are placed in permits can be enforced by third parties through what are known as citizen suits. So, DEC needs to have the same authority that EPA has to require monitoring either in permits (the part addressed in section 5) or outside of permits (address in section 1). EPA raised the concern that the state's law was not as stringent as the federal law in these sections. So all sections of the bill are designed to align state law with the federal requirements. 4:28:42 PM MR. LEONARD said that section 2 was less substantive and 1 of 3 sections that deal with terminology. The federal law uses somewhat different terminology from state law and speaks of "discharges of pollutants" whereas Alaska law talks about "disposal of waste material". EPA's concern again is that the state's terms be as broad as theirs. So the state's law has been tweaked to borrow federal terminology. 4:29:39 PM SENATOR STEVENS asked him to define what the waters of the United States means in terms of Alaska. MR. LEONARD replied that the definition of "waters of the U.S." is dynamic and controversial and is the subject of recent Supreme Court opinions. He didn't know that there was any significant difference. But in order to get a program approved by EPA the state has to essentially have the same scope of coverage that it has and the easiest way, and maybe the only way, to do that is to use the same terminology. The definition used by the EPA is in federal regulation and goes on for one and a half pages. So, he wouldn't read it at this time. 4:30:56 PM SENATOR WIELECHOWSKI asked what was deleted at the end of section 2. MR. LEONARD replied that redundant language was taken out and it was making it consistent with federal language. He said the reason the change is proposed for section 4 is the DEC cannot exclude activities from the permit requirement any more broadly than federal law does. Under federal law, persons discharging domestic sewage into a publicly-owned treatment work (POTW) don't need a permit. The way it reads now if a person is discharging into a sewerage system, he doesn't need a permit, but that term is defined broadly in state law and would include, for example, conduits that didn't require any treatment at all. So, this is one area where EPA said that state law is not as inclusive as federal law. 4:32:49 PM MR. LEONARD said that section 3 is less substantive and simply clarifies that the department is the one that decides what form of authorization to use for a particular activity - again, responding to an EPA concern. MR. LEONARD said section 4 is substantive with and deals with three issues. They are all exclusions to the requirement that people obtain a permit. He'd talked about the one for domestic sewerage into POTWs where "surface water of the state" was changed to "waters of the United States" to make it align with the federal terminology. The third issue, "(e)(7)", in section 4 has to do with munitions, which are included in the definition of a pollutant under the Clean Water Act. So if one discharges munitions at an active range and that discharges into waters of the Unites States, you need a permit. So, again, the breadth of state exclusion language had to be cut back. CHAIR HUGGINS asked if EPA does the permitting for Eielson Air Force Base and if the state will be taking over permitting on military ranges. MR. LEONARD replied that it's all done through EPA right now, but if this bill passed, the state would take over permitting on the military ranges. 4:34:41 PM SENATOR WIELECHOWSKI asked what if the munitions were discharged into a salmon stream, not waters of the United States. MR. LEONARD replied if this change were to be made, the exemption would only apply if it wasn't into waters of the United States. SENATOR WIELECHOWSKI asked what kind of pollutants are in munitions. MR. LEONARD replied white phosphorus, but he wasn't an expert. SENATOR WIELECHOWSKI asked if pollutants from munitions were significant. MR. LEONARD replied that he couldn't speak to that. It's included in the definition of pollutant so it has to be covered. CHAIR HUGGINS added that there is lots of pollution from munitions. 4:36:13 PM MR. LEONARD said that section 5 was tied to monitoring requirements and he characterized sections 6 and 7 as clarification of terminology that "waste materials" includes "pollutants" which is what federal law uses. 4:36:46 PM He said section 8 deals with a substantive issue. He explained that under the Clean Water Act, negligent violations of the NPDS can subject the violator to criminal enforcement. Under state law in contract, DOL could only pursue criminal enforcement if the violations were done with gross negligence and those are defined differently in the law - gross negligence being a higher level of negligence. EPA pointed out the DEC was requiring a higher state of culpability to support criminal enforcement than was required under the federal law. So, the bar needed to be lowered. Section 8 changes current state law that provides for criminal penalties for violations of DEC statutes and says for this program only mere negligence would support criminal sanctions. 4:37:58 PM CHAIR HUGGINS asked where the provision is that requires sampling. MR. LEONARD replied section 1 deals with it outside of the context of a permit; section 5 deals with the same subject, but within the discharge permits. 4:38:17 PM SENATOR WIELECHOWSKI asked how many additional state employees will be needed to assume primacy. 4:38:39 PM LYNN KENT, Director, Division of Water, Department of Environmental Conservation (DEC), answered that the legislature passed SB 110 in 2005 that directed her to proceed with primacy and it had a fiscal note. So, implementing this program is already in DEC's base budget. Hence, this bill has a zero fiscal note. She clarified that the resources came with SB 110 and the number of positions that include both the existing program and the new positions that will implement the program when it's approved by EPA total 43 positions. SENATOR WIELECHOWSKI asked how much assuming primacy would cost the state. MS. KENT replied that the existing program requires that the state review all of the EPA permits and certify that they comply with the state's water quality standards. It is kind of a parallel program in terms of permitting with EPA. The incremental cost to get from the program to the NPDS program is about $1.5 million. That was the amount that was in the SB 110 fiscal note. 4:40:16 PM SENATOR STEVENS said he understood that industry would pick up a major share of the cost. He asked if the state assumes primacy, would industry still pick up a major share of the costs or is the state assuming more. MS. KENT replied that the program is designed to rely upon the existing state policy for the fee it charges for direct services. So, under SB 361 a number of years ago, DEC charged for its direct services, which they do for state certifications of the federal permits today. With NPDS primacy, that same fee structure will apply, but it will go up a little bit to reflect the state's additional work load. The fiscal note for SB 110 estimated that at full implementation of primacy, about $300,000 of the $1.5 million would be replaced with fees as opposed to general funds. SENATOR STEVENS asked if industry would pick up about 70 percent. MS. KENT couldn't recall the actual percentage, but it was somewhat less than 70 percent. 4:41:48 PM SENATOR STEDMAN asked how many states have primacy and how many don't. MS. KENT replied that 45 states already have primacy; Alaska will make the 46th. She said the Clean Water Act actually envisioned that states would run the program rather than EPA. CHAIR HUGGINS asked what the state has learned to date in terms of industry support. 4:42:56 PM COMMISSIONER HARTIG replied that more people in industry support this than ever before. Timing is everything and if you have a real large project, no matter what the industry is, even one month's delay is extremely expensive. He said one of the other primary drivers is getting modifications to permits. He explained that the permits have a five-year life under the Clean Water Act. So, any time there is any minor change to a discharge even the frequency, a modification is required. Under EPA regulations, you have to go through the same public process as getting the original permit. So, they are very reluctant to issue modifications, which holds up businesses, too. COMMISSIONER HARTIG said the DEC is getting a lot of cooperation from EPA in turning this program over to the state. During all the discussions, an awareness has developed about the benefits of having local people be responsive to the local businesses and government in writing these permits. So, there has been more of a consensus and people are becoming more comfortable with the state's level of competence. 4:46:37 PM CHAIR HUGGINS asked, assuming this bill passes this session, when would the state actually take primacy. COMMISSIONER HARTIG replied that the plan right now is to go back to the EPA with revisions to the draft application this fall and they will turn it around and the state will have primacy by this time next year. There will be a three-year phase-in. CHAIR HUGGINS asked if EPA would retain oversight. COMMISSIONER HARTIG replied yes EPA retains the authority and duty to review permits. EPA can veto permits. 4:49:15 PM CHAIR HUGGINS asked if he had concerns about operating in the military environment in the state. COMMISSIONER HARTIG replied no; his own experience with DEC is that the military has worked with them if something comes up. 4:49:53 PM SENATOR GREEN asked if any changes that are made to the U.S. code would automatically be picked up by the state. MR. LEONARD replied yes. SENATOR GREEN asked if the term "waters of the United States" has any reference in SB 91 that would lead someone to the definition in U.S. Code. MR. LEONARD replied that actually that term is not defined in the U.S. code; it is defined in the federal regulations and it is also not defined in this bill; it is defined in the state regulations that implement this bill. He offered to get those for her. SENATOR WIELECHOWSKI asked if all little creeks in Alaska, like Chester Creek, are considered waters of the United States. MR. LEONARD replied that generally they are all considered waters of the U.S., but it is an area of ongoing litigation. Chester Creek is definitely waters of the U.S. - as long as it is a tributary. 4:51:44 PM VICKI PORTWOOD, Executive Officer, Alaska State Homebuilder's Association, supported SB 91. She explained that right now her members struggle with having any kind of a relationship with EPA personnel who come up and get off the plane, inspect the job sites, fine the company and then get back on the plane and go back to the Lower 48. There is no one to talk things over with - to help mitigate their problems and to learn what it is that they are doing incorrectly. 4:54:17 PM CHAIR HUGGINS asked if the EPA scenario Ms. Portwood talked about was common. COMMISSIONER HARTIG replied that his impression is that it is fairly common. EPA has one permit writer in the state of Alaska and he didn't know how many in Seattle, but a majority of the permits are written out of Seattle and a majority of the enforcement is out of Seattle as well. CHAIR HUGGINS asked if Alaska had this authority, what would its presence look like to industry. MS. KENT replied that DEC intends to have a compliance and enforcement that is as stringent and as expansive as EPA's program. So their goals would mirror EPA's and that is to inspect every major facility once a year and to inspect the minor facilities once every five years - so they would definitely have a field presence. She intends to have staff located in Anchorage, Fairbanks and Juneau. 4:55:18 PM SENATOR GREEN moved Amendment 1 as follows: On page 4, line 4, to delete "listed" and insert "as defined" following "pollutants" and on page 4, line 10 insert "and(d)" following "(a)". MR. LEONARD said that both changes are minor tweaks and really just reflect the fact that they were running out of time between concluding their discussions with EPA and getting this bill introduced. EPA made these suggestions a few days after discussions were finished. 4:56:37 PM On the first change the EPA didn't want it to be implied that only the list was incorporated. The second one only makes sense if you look at AS 46.03.790 to see what it says now, but the basic concern underlying this change was section 790(d) that deals with oil spills. The EPA was concerned that because oil spills are in violation of the act when there's no permit for someone to discharge oil into the water, that they have the same state of mind of negligence to enforce criminal enforcement for oil spills. Their concerns were addressed by adding "and (d)" after "a". SENATOR WIELECHOWSKI asked if this means that an organization that negligently spilled oil would still potentially be guilty of a Class A misdemeanor. MR. LEONARD replied yes. Basically, it means there is a choice of which enforcement tool to use. You can only get up to a Class A misdemeanor under new section 790(i). If the spill is big enough, you can go under the existing 790(d) and pursue felony charges, but then you would have to meet the higher standard of criminal negligence or alternatively, you could do civil enforcement and seek penalties. So, the state would have that choice if this bill were to be amended and passed. 4:59:40 PM Amendment 1 was adopted without objection. 4:59:55 PM SENATOR STEDMAN moved to pass from committee SB 91, as amended, with individual recommendations. There were no objections, and CSSB 91(RES) moved from committee.
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