Legislature(2011 - 2012)BUTROVICH 205
04/13/2011 03:30 PM Senate RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB185 | |
| HJR21 | |
| HJR23 | |
| HCR9 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 185 | TELECONFERENCED | |
| + | HJR 21 | TELECONFERENCED | |
| + | HJR 23 | TELECONFERENCED | |
| + | HCR 9 | TELECONFERENCED | |
HB 185-EXEMPT DISCHARGES FROM USE OF MUNITIONS
3:38:10 PM
CO-CHAIR PASKVAN announced HB 185 to be up for consideration.
[CSHB 185(RES) 27-LS0506\X was before the committee.]
REPRESENTATIVE TAMMIE WILSON, sponsor of HB 185, highlighted the
important technical changes that House Resources committee
substitute made to the original bill. On page 2, lines 19-20,
the phrase "or service" was added to clarify that the U.S. Coast
Guard is to be included in the provision. Also, the Federal
Water Pollution Control Act was referenced differently, but the
content was unchanged.
REPRESENTATIVE T. WILSON explained that in 2008, the State of
Alaska sought Environmental Protection Agency (EPA) approval of
its Clean Water Act program. The exclusion for active military
ranges under Title 46 was amended so as to exclude the firing or
other use of munitions in training activities conducted on
active ranges, including those operated by the Department of
Defense or military agencies unless it results in a discharge
into U.S. waters. She pointed out that HB 185 was vetted by the
EPA, the Alaska Department of Environmental Conservation (DEC),
the Department of Defense, and the Alaska Department of Military
& Veterans Affairs (DMVA). AS 46.03.100(e)(7) clarifies that
military exercises on ranges are not restricted other than
instances where the Federal Water Pollution Control Act ("Clean
Water Act") would apply. This, she stated, reduces potential
litigation in trying to interpret waters within the U.S.
3:41:16 PM
SENATOR FRENCH asked if the list in AS 46.03.100(e)(1)-(7)
describes instances for which a state water discharge permit is
not needed.
REPRESENTATIVE T. WILSON said that is correct.
SENATOR FRENCH asked if getting a state permit for firing
munitions only became an issue once the state assumed primacy
for water permits.
REPRESENTATIVE T. WILSON said that is correct.
CO-CHAIR PASKVAN clarified that version X was before the
committee.
MAJOR GENERAL THOMAS H. KATKUS, Commissioner, Department of
Military & Veterans Affairs (DMVA) and Adjutant General for the
State of Alaska, stated that HB 185 is another step to show
support for the presence of the military in Alaska. The bill
attempts to clarify and offset potential challenges and double
permitting related to the development of ranges in Alaska. It is
not an effort to reduce constraints or lessen standards that
would in any way adversely affect the Alaska environment. HB 185
would not in any way reduce Alaska's primacy in how it
determines quality.
MCHUGH PIERRE, Deputy Commissioner, Department of Military &
Veterans Affairs (DMVA) added that HB 185 is part of the overall
effort and intent to enhance the open working relationship with
the military and to keep the current military industrial complex
here in Alaska. He offered his understanding that the 2008
legislation changed that intent and potentially added to
bureaucracy associated with growing every sector of the business
world.
CO-CHAIR PASKVAN thanked Commissioner Katkus for meeting earlier
to discuss the issue of state primacy. He noted that according
to the House Journal, the intent of the 2008 amendment was "an
essential component of the state's effort to receive primacy
from the Environmental Protection Agency." He said he wanted to
make sure that HB 185 didn't have unintended consequences that
would lessen the state's ability to regulate as necessary.
3:46:22 PM
SENATOR WIELECHOWSKI observed that the debate in 2008 was that
the state really wanted primacy and this legislation appears to
back away from that and say, in this case, the state really
didn't want primacy. He asked Commissioner Katkus to talk about
levels of munitions and types of chemicals that would be used in
the ordnances.
COMMISSIONER KATKUS replied he couldn't talk to the types of
chemical compounds or the components, but the rounds would be
the current technology employed on the battlefield. This
includes everything from small arms munitions to artillery
rounds for aerial gunnery ranges to bombing ranges.
SENATOR WIELECHOWSKI noted that over the years there have been
situations at Fort Richardson and Eagle River Flats in
particular where thousands of waterfowl died, and the probable
cause was chemicals from explosive ordnances. He said he
therefore wanted to make sure that this legislation in no way
lowers standards and increases the ability to put dangerous
substances into the water or air.
COMMISSIONER KATKUS replied the military has become a better
steward of the environment every year and is now almost a
renowned gold standard for environmental protection. He offered
his understanding that the white phosphorus issue on the Eagle
River Flats was a long-term problem that was not recognized
until waterfowl numbers began to drop. But once the problem was
identified, the military was quick to address and fix the
problem. He reiterated that HB 185 is not an effort to reduce
[water or air quality] standards. It's in everyone's best
interest to maintain and continue to meet those high standards.
He suggested that the DEC representative could specifically
address the white phosphorus issue on the impact area for Fort
Richardson.
3:49:15 PM
LYNN KENT, Director, Water Division, Department of Environmental
Conservation (DEC), said she couldn't speak to the remediation
efforts at Eagle River Flats, but she could say that the bill
does not represent DEC backing off on primacy for its Clean
Water Act permitting program. What the bill does is ensure that
the state program implemented under the Clean Water Act remains
consistent with the Act over time.
SENATOR WIELECHOWSKI asked if Alaska law was similar to the
federal Clean Water Act and if she could describe any
differences.
MS. KENT explained that in order for a state to have primacy to
implement a permitting program under the federal Clean Water
Act, the state program has to be as stringent as the federal
program. Thus, the Alaska program virtually mirrors the federal
Clean Water Act program, she said.
SENATOR WIELECHOWSKI noted that when the debate on primacy took
place several years ago, one big concern was that the federal
government wasn't hearing cases quick enough. He asked if DEC
continued to have that concern.
MS. KENT replied there certainly has been delay in EPA review
and approval of water quality standards upon which DEC bases
permits, but that problem is nationwide and not specific to
Alaska.
SENATOR FRENCH asked who will be issuing permits to the U.S.
military for firing ranges under the bill.
MS. KENT replied the permitting authority has been delegated to
DEC if the use of the firing range requires a permit under the
Clean Water Act.
SENATOR FRENCH asked if the federal Clean Water Act will require
a permit for the ranges that are under consideration here. He
understands the range outside of Fairbanks is the primary
consideration.
MS. KENT explained that DEC is taking on the permitting
authority in phases and taking on munitions permitting is
scheduled for October 2011. She wasn't familiar with the range
he referenced, but DEC will be responsible for issuing a permit
for any facility that requires one under the Clean Water Act.
CO-CHAIR PASKVAN asked if DEC will be enforcing federal law,
which set the minimum standards.
MS. KENT answered yes.
CO-CHAIR PASKVAN asked what process the state will follow if
this law passes and the state's interests weren't parallel with
the federal minimum standards.
MS. KENT replied this law, as proposed, will not interfere with
DEC meeting the minimum requirements under the Clean Water Act.
The bill will make sure that the state is consistent with the
Clean Water Act.
CO-CHAIR PASKVAN asked how DEC would engage in the process under
the proposed law if the State of Alaska were to advance
standards that were higher than the federal minimum.
3:54:58 PM
MS. KENT said the Clean Water Act requires state programs to be
at least as stringent as the federal program and the provision
under consideration in HB 185 is neither more nor less stringent
than the Clean Water Act requires.
CO-CHAIR PASKVAN asked if the State of Alaska can determine that
its interests are such that greater protection would be
warranted.
MS. KENT replied the state can have a more stringent program
than is required by the federal Clean Water Act, but the bill
doesn't propose that at present.
CO-CHAIR PASKVAN asked if the state could impose more stringent
requirements than the federal requirements if this bill were to
pass.
MS. KENT replied HB 185 would not prevent the Legislature from
imposing more stringent requirements in the future.
CO-CHAIR PASKVAN asked if DEC could issue a permit if it wasn't
allowed under the federal government system.
MS. KENT answered no and added that the state already regulates
discharges that are not covered by the Clean Water Act. For
example, DEC has a program that regulates discharges to the land
surface and to ground water, neither of which is required by the
Clean Water Act.
CO-CHAIR PASKVAN asked if she was comfortable that the state
would remain primary with respect to the standards that will be
applied in the state.
MS. KENT answered yes.
SENATOR WIELECHOWSKI expressed confusion; his understanding of
the reason for the bill was so the military could bypass DEC and
instead go directly to the federal government for these permits.
He asked if this was incorrect.
MS. KENT replied she could understand the confusion if the bill
is considered by itself, but other statutes give DEC the
authority (and it has received approval) to implement the
federal program. HB 185 does not change the fact that the
military will have to both seek the application and get the
permit from DEC.
SENATOR WIELECHOWSKI questioned the need for the bill.
MS. KENT responded DEC's perspective is that the proposed
language change makes the state's program consistent with the
Clean Water Act right now and as it may change in the future.
SENATOR FRENCH asked if she had learned anything that might
cause her to change her statement since she wrote to
Representative Paul Seaton and Representative Eric Feige on
March 21, 2011 stating:
CSHB 185 would only require the state to issue a
permit if it is required to do so under the CWA. It is
a subtle, but important change that will retain the
state policy to exempt ranges from permitting
requirements for munitions discharges to the land and
for discharges to waters that are not required to have
a permit under the CWA.
MS. KENT replied that's still accurate; the language in
subsection (e) has exemptions for a number of operations that do
not need a state permit. In 2008 DEC asked for an amendment to
AS 46.03.100 to make the statute consistent with the Clean Water
Act, which requires a permit for certain munitions discharges.
It was necessary for DEC to have the authority to issue those
permits under the terms of the Clean Water Act in order to have
primacy for the state program. It's been long-standing state
policy that munitions use and a few other things are exempt from
state permitting requirements and it was necessary to rectify
that in order to receive primacy to implement the permitting
program. HB 185 basically clarifies the language.
4:01:22 PM
SENATOR FRENCH said he too labored under a misconception, but he
now understands that the purpose of the bill is to retain
primacy and maintain the long-standing exemption for munitions
ranges. He added that it is his belief that if the bill were to
pass the military would not need a permit in order to conduct
training exercises in many areas of Alaska ranges.
MS. KENT reiterated that DEC has the permitting authority even
though the Clean Water Act is referenced.
CO-CHAIR PASKVAN asked what DEC's original concerns were with
the law that was passed in 2008.
MS. KENT replied the changes were proposed by the Department of
Defense to clarify that when a permit is required under the
federal Clean Water Act, one will also be required under the
state permitting program.
4:03:25 PM
ALPHEUS BULLARD, Attorney, Legislative Legal Services,
Legislative Affairs Agency, speaking via teleconference,
introduced himself and said he was available to answer
questions.
CO-CHAIR PASKVAN asked if he followed the discussion on state
primacy and the state's ability to issue a standard that is
different than the federal minimum standard.
MR. BULLARD said yes.
CO-CHAIR PASKVAN asked him to offer his thoughts.
MR. BULLARD said he didn't have thoughts on the primacy issue,
but was available to answer specific questions.
SENATOR FRENCH reviewed the proposed new language and asked if
he had reviewed 33 U.S.C. 1251-1376 of the Clean Water Act.
MR. BULLARD answered yes.
SENATOR FRENCH asked if anything in those federal statutes will
require issuance of a permit before firing or use of munitions
in training activities conducted on active ranges.
MR. BULLARD said the definition of "waters of the U.S." found in
regulation in 18 AAC 83.990(77) is the same as the definition
under the Clean Water Act. He offered his belief that changing
the language to read, "the discharge into waters regulated under
33 U.S.C." would clarify that the waters and the discharge into
the waters is the concern, not the firing or other use of
munitions. As the law stands now, his understanding is that what
would be regulated would be the same.
SENATOR FRENCH asked if he means without the passage of HB 185.
MR. BULLARD explained that the definition of the term "waters of
the U.S." is the same right now under both the Clean Water Act
and state regulations. However, it's very possible that the two
definitions will differ in the future.
4:07:06 PM
SENATOR WIELECHOWSKI asked, when he refers to the Clean Water
Act, if he is referring to the federal Water Pollution Control
Act.
MR. BULLARD answered yes.
SENATOR WIELECHOWSKI asked Mr. Bullard to explain what the bill
does.
MR. BULLARD replied the effects and purpose of the legislation
were not clear to him.
4:08:31 PM
KEVIN WARD, Counsel, U.S. Army, Northern Regional Environmental
Office, stated support for HB 185 and advised that the
legislation was a collaborative effort between DEC, DMVA, the
Alaska Military Force Advocacy and Structure Team (AMFAST), and
the Office of the Attorney General. He said the bottom line is
that the proposed amendment provides that the Alaska Clean Water
Act would apply to military ranges only if otherwise required by
the federal Clean Water Act. The military believes this is
necessary. He explained that when DEC sought U.S. EPA approval
of its Clean Water Act program, EPA said the blanket exemption
needed to be changed and in 2008 the Legislature changed the
statute to its current form.
As previously noted, he said, the current statute provides an
exemption for military and other ranges unless there is a
discharge into waters of the U.S. The difficulty for the
military is that the phrase "waters of the United States" is the
subject of numerous ongoing debates and discussions as to its
meaning and scope, including a recent U.S. Supreme Court
decision. In addition, there may be an inconsistency between the
state Act and the federal Act if the federal law changes and the
state law continues to use the phrase "discharge into waters of
the United States" for purposes of determining whether a permit
is required for a military range.
MR. WARD stated that the question of whether or not a permit
would be required of a military or other range is not determined
by HB 185. What the bill does is provide comfort to the
Department of Defense that the issue will be decided pursuant to
and in accordance with the federal Clean Water Act. This will
give the military consistency in Alaska and other states as to
whether or not it needs to have permits for its ranges. He
emphasized that the bill does not affect primacy or EPA approval
of the state program, it does not decide whether a permit is or
is not required and if a permit is required it will not affect
what standards Alaska could impose pursuant to its Clean Water
Act program. The only thing the bill does is to say that whether
a permit is or is not required will be determined in accordance
with the federal Clean Water Act.
CO-CHAIR PASKVAN asked if the State of Alaska could require a
permit for a higher standard than under the current federal
process.
MR. WARD answered the state could ask the military to ask for
such a permit under existing law or pursuant to HB 185. Whether
or not that permit would be required under current statute would
be whether waters were discharged into U.S. waters.
4:14:22 PM
CO-CHAIR PASKVAN asked if Alaska's laws will be primary if there
is inconsistency between the state and federal acts.
MR. WARD replied, under HB 185, the question of whether or not a
permit is required would be determined in accordance with an
interpretation of the federal act.
CO-CHAIR PASKVAN asked what the interpretation of the federal
law would be if there was an inconsistency and the state wanted
to require a permit.
MR. WARD replied that issue has been discussed and remains
unresolved with regard to military ranges.
4:16:03 PM
CO-CHAIR PASKVAN asked if the ultimate conclusion could be that
the state's voice in that process could potentially be
eliminated.
MR. WARD said no; Alaska's voice cannot be eliminated because it
retains primacy and would still be the permitting authority. He
offered the opinion that Alaska could assert whatever position
it deemed appropriate under the circumstances and seek to
require a permit.
CO-CHAIR PASKVAN asked if he was using the word "primacy" in the
sense of the issuing agency being a state agency as opposed to a
federal agency.
MR. WARD replied he was using the term in the manner the Chair
summarized.
SENATOR WIELECHOWSKI asked how current Alaska law and the
federal Clean Water Act differ with respect to "discharge into
waters of the United States.
MR. WARD explained that the phrase "waters of the United States"
is used in the federal Clean Water Act and the interpretations
of that phrase are not always consistent. The U.S. Supreme Court
examined the issue and came up with three different opinions.
The debate often involves whether or not a particular water body
is a water of the United States. The fact that there's an
ongoing debate as to what the phrase means is one reason the
military supports removing the phrase from the statute and
replacing it with the "Federal Water Pollution Control Act."
CO-CHAIR PASKVAN announced he would hold HB 185 in committee.