Legislature(1995 - 1996)
03/11/1996 03:37 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
Number 192 SJR 39 EPA'S NPDES PERMIT FOR PLACER MINING STEVE BORELL, Executive Director, Alaska Miners Association, supported SJR 39. He suggested two potential changes. He said the resolution references dredge and recreational mining; however, the issue goes far beyond just dredge and recreational mining and it affects any commercial mining operation. The resolution should address how it affects commercial operators and should give full due deference to the folks that have caused the problem by litigants being included in addition to their attorneys. SENATOR LEMAN noted that they had two proposed amendments from the Alaska Miners and he thought they were friendly amendments and would improve the resolution. SENATOR TAYLOR moved to adopt amendment number one. There were no objections and it was so ordered. SENATOR TAYLOR moved to adopt amendment number two. There were no objections and it was so ordered. Number 219 SENATOR TAYLOR moved to pass SJR 39 from committee as amended. SENATOR LEMAN asked him to hold the motion as there were people who wanted to testify. DAVID CHAMBERS, Mining Analyst, Sierra Club Legal Defense Fund, said he is a geophysicist by training, not an attorney. He was one of the people involved in the settlement agreement that is at issue with this resolution. He wanted to clear up some of the misleading statements in SJR 39. The first "Whereas" requires all dredges to have a NPDES permit despite the fact that EPA does not have the personnel to process all of the newly required permits. While the settlement agreement requires small suction dredgers to send their names and addresses to EPA and in turn they receive a one page sheet listing specific practices to follow. He did not think that was an onerous requirement. The second concern was the arsenic level of .18 parts per billion. While that is factually correct and is a requirement of state and federal law, during the course of the year and a half of negotiations they never once discussed the arsenic level at its numeric limits. This is just a number EPA is putting in the permit; it's required to do so by law. Should EPA change its standard as is referred to in the next line, to 50 parts per billion, he assumed that would become a part of this permit as it would all other permits. He said there were numerous compromises in the agreement and at the end of the discussions, the miners were invited to comment and they chose not to do so. MR. CHAMBERS said he thought EPA entered into this settlement agreement because its position under their legal challenge was weak. He said the settlement agreement was in the best interests of the State. If the terms of the settlement agreement aren't complied with and we end up in court, they would go back to their original negotiating position and he did not think it best to have a court imposed solution. He said if there are perceived weaknesses in the settlement agreement the door is open to miners or anyone else. SENATOR LEMAN noted that there are some things the legislature doesn't agree with and asked why the arsenic level was set a .18 parts per billion which is considerably lower than the requirement for drinking water. MR. CHAMBERS explained .18 is just a reflection of what the State and federal standard is. It is not an element of the settlement. SENATOR TAYLOR asked if the Sierra Club Legal Defense Fund had filed a suit against EPA. MR. CHAMBERS answered that they challenged the EPA permit on behalf of their clients, American Rivers and the Northern Alaskan Environmental Center. Number 318 MARK WHEELER, Alaska Environmental Lobby, said the recent draft NPDA permit for placer mining in Alaska is a result of one and a half years of settlement negotiations between the EPA, the State of Alaska, and the Sierra Club Legal Defense Fund. It is a good compromise agreement which seeks to protect water quality in Alaska. He encouraged the legislature to support this compromise agreement by rejecting the proposed resolution. SENATOR TAYLOR asked if .18 parts per billion is a lower standard than the current standard for drinking water. MR. CHAMBERS replied the current standard is 50 parts per billion, so .18 is quite lower. It is based on a human carcinogenic health risk. SENATOR TAYLOR asked if the 50 parts per billion which municipal water systems use was based on a health standard. MR. CHAMBERS replied that it was not based on risk of arsenic as a carcinogen; that is what the .18 per billion is based on. He elaborated that the .18 applies to all discharges in the State of Alaska, not just to placer miners. SENATOR TAYLOR remarked that normal water running off a hillside would be higher than what the number would be. He asked if someone wanted to extract gravel would they have to set up a filtration system that would take out the normal background levels of arsenic. SENATOR LEMAN answered that he doubted that a filtration system would do that. Number 388 SENATOR PEARCE asked if the administration had a position on this resolution. SENATOR HALFORD asked if the administration agreed to this settlement? MR. CHAMBERS replied that yes, they did. MR. BORELL disagreed and said the administration, in a letter for Deputy Commissioner Michelle Brown, said if a series of things were met they would look kindly on it, but the details of the letter were not met and they haven't heard if they have withdrawn their support. SENATOR PEARCE asked how the State became involved. MR. BORELL replied that the State was questioned during various points during the negotiations and involved by the EPA. SENATOR PEARCE asked if the Miners Association was asked what they thought of the new regulations. MR. BORELL replied that they were asked. COMMISSIONER BURDEN specifically called on a couple of different occasions asking for comments. There may have been one occasion when the EPA attorney called, but they did not see a copy of the draft permit until it was put out for public notice. They were not aware of the multitude of details in that general permit that had never been discussed with EPA, DEC, or with them. SENATOR PEARCE asked why the Miners did not actually try to inject themselves into the suit? MR. BORELL said there were two reasons: there was a group of miners at the time who felt they had an agreement between themselves and EPA that the existing general permit was going to be satisfactory. With that promise they were not interested in pursuing it. The other reason is that the industry was just burned out on being in court. SENATOR TAYLOR asked if the settlement decision had been given back to the judge, yet, for approval. MR. BORELL replied that it hadn't been approved by the court. It depends on this draft of the general permit going forward and EPA meeting several other criteria. SENATOR TAYLOR asked if they would be involved at that point. MR. BORELL replied that they would like to, but they don't have access at this point because they were not involved at any earlier stage. Number 480 SENATOR TAYLOR commented that this seems to be a pattern that the environmental community files a suit against a federal monitoring agency and by filing that suit they are able to go into a back room with the attorneys on behalf of the federal government who talk with their friends about what kind of a settlement should be achieved on their litigation. The settlements that come down, then, establish through court order new standards and new requirements without any of the effected people being in the room or being allowed to participate. SENATOR PEARCE moved to pass SJR 39 am with a $0 fiscal note and individual recommendations. There were no objections and it was so ordered.