Legislature(1993 - 1994)

04/01/1993 07:00 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
               HOUSE JUDICIARY STANDING COMMITTEE                              
                          April 1, 1993                                        
                            7:00 p.m.                                          
                                                                               
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
  Representative Brian Porter, Chairman                                        
  Representative Jeannette James, Vice-Chair                                   
  Representative Pete Kott                                                     
  Representative Gail Phillips                                                 
  Representative Joe Green                                                     
  Representative Jim Nordlund                                                  
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
  Representative Cliff Davidson                                                
                                                                               
  OTHER MEMBERS PRESENT                                                        
                                                                               
  Representative Mark Hanley                                                   
  Representative Kay Brown                                                     
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
  HB 167    "An Act relating to air quality control and the                    
            prevention, abatement, and control of air                          
            pollution; relating to civil and criminal                          
            penalties, damages, and other remedies for air                     
            quality control violations; clarifying the                         
            definition of `hazardous substance' to include                     
            releases and threatened releases to the                            
            atmosphere; amending the lien provisions relating                  
            to the oil and hazardous substance release                         
            response fund; relating to inspection and                          
            enforcement powers of the Department of                            
            Environmental Conservation; and providing for an                   
            effective date."                                                   
                                                                               
            HEARD AND HELD IN COMMITTEE FOR FURTHER                            
            CONSIDERATION                                                      
                                                                               
  WITNESS REGISTER                                                             
                                                                               
  REPRESENTATIVE MARK HANLEY                                                   
  Alaska State Legislature                                                     
  State Capitol, Room 511                                                      
  Juneau, Alaska 99801-1182                                                    
  Phone:  465-4939                                                             
  Position Statement: Prime sponsor of HB 167                                  
                                                                               
  TOM CHAPPLE                                                                  
  Project Manager                                                              
  Air Quality Management Section                                               
  Division of Environmental Quality                                            
  Department of Environmental Conservation                                     
  410 Willoughby Avenue, Suite 105                                             
  Juneau, Alaska 99801                                                         
  Phone:  465-5102                                                             
  Position Statement: Discussed HB 167                                         
                                                                               
  JEFF OTTESEN                                                                 
  Chief, Right of Way and Environment                                          
  Division of Engineering and Operations                                       
  Department of Transportation and Public Facilities                           
  3132 Channel Drive                                                           
  Juneau, Alaska 99801                                                         
  Phone:  465-2985                                                             
  Position Statement: Discussed HB 167                                         
                                                                               
  CHERYL RICHARDSON                                                            
  Clean Air Coalition                                                          
  1747 Lawrence Court                                                          
  Anchorage, Alaska 99501                                                      
  Phone:  272-0738                                                             
  Position Statement: Voiced concerns related to HB 167                        
                                                                               
  PREVIOUS ACTION                                                              
                                                                               
  BILL:  HB 167                                                                
  SHORT TITLE:  AIR QUALITY CONTROL PROGRAM                                    
  BILL VERSION: SCS CSHB 167(JUD) AM S                                         
  SPONSOR(S):   REPRESENTATIVE(S) HANLEY                                       
                                                                               
  TITLE: "An Act relating to air quality control and the                       
  prevention, abatement, and control of air pollution;                         
  relating to inspection and enforcement powers of the                         
  Department of Environmental Conservation; and providing for                  
  an effective date."                                                          
                                                                               
  JRN-DATE     JRN-PG               ACTION                                     
  02/19/93       390    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  02/19/93       390    (H)   JUDICIARY, FINANCE                               
  03/05/93              (H)   JUD AT 01:00 PM CAPITOL 120                      
  03/05/93              (H)   MINUTE(JUD)                                      
  03/10/93              (H)   JUD AT 01:00 PM CAPITOL 120                      
  03/10/93              (H)   MINUTE(JUD)                                      
  04/01/93              (H)   JUD AT 07:00 PM CAPITOL 120                      
                                                                               
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
  TAPE 93-47, SIDE A                                                           
  Number 000                                                                   
                                                                               
  The House Judiciary Standing Committee meeting was called to                 
  order at 7:23 p.m., on April 1, 1993.  A quorum was present.                 
  Chairman Porter announced that the committee would take up                   
  HB 167.                                                                      
                                                                               
  HB 167:  AIR QUALITY CONTROL PROGRAM                                         
                                                                               
  Number 026                                                                   
                                                                               
  REPRESENTATIVE MARK HANLEY, PRIME SPONSOR of HB 167,                         
  reviewed the items included in the members' bill packets.                    
  He stated that the federal Clean Air Act required that the                   
  state adopt its own air monitoring system which complied                     
  with federal law, unless the state wanted to have federal                    
  officials run the program in the state.  He noted that                       
  federal highway and other funds were at risk if the state                    
  did not implement a program which complied with federal law.                 
  He commented that people were fairly unanimous in their                      
  belief that it would be better to have a state-run air                       
  quality program than to allow the federal government to run                  
  it.                                                                          
                                                                               
  REPRESENTATIVE HANLEY said that the state had to have an air                 
  quality program in place by November, or risk being out of                   
  compliance with federal law.  He commented that the year                     
  before, then-Representative Tom Moyer had sponsored an air                   
  quality bill, which ended up not passing the legislature.                    
  After that bill failed to be enacted, he said, the                           
  Department of Environmental Conservation (DEC) convened a                    
  working group, comprised of representatives from various                     
  industries, the environmental community, and the public.                     
                                                                               
  REPRESENTATIVE HANLEY advised that the working group met                     
  during the interim to craft language pertaining to air                       
  quality issues, in an effort to develop the "basics"                         
  required under federal law.  By the beginning of the current                 
  session, he said, the working group had come up with a                       
  fairly extensive draft bill.  He told the committee members                  
  that the bill which he had introduced took provisions                        
  developed by the working group and added in other provisions                 
  which had been discussed the year before, but which were not                 
  included in the working group's draft bill.                                  
                                                                               
  REPRESENTATIVE HANLEY stated that, since his bill had been                   
  introduced, the Senate Resources Committee had formed a                      
  subcommittee, inviting himself and Representative Kay Brown,                 
  who had also sponsored an air quality bill, to participate                   
  in their discussions.  He said that the group had been                       
  meeting twice a week for the past three or four weeks,                       
  trying to incorporate provisions from HB 167, Representative                 
  Brown's bill (HB 39), and the Senate bill pertaining to air                  
  quality (SB 103) into a cohesive whole.  He noted that the                   
  DEC working group had commented on the portions of the new                   
  bill which they themselves had not developed.                                
                                                                               
  REPRESENTATIVE HANLEY stated that the draft House Judiciary                  
  Committee substitute for HB 167 was nearly identical to the                  
  draft substitute bill developed by the Senate Resources                      
  Committee subcommittee.  He summarized by saying that the                    
  bill before the Judiciary Committee had been the subject of                  
  a great deal of work and compromise.  He commented that, out                 
  of 40 pages and 33 sections, there were probably only four                   
  or five sections which were controversial.  One of those was                 
  section .010, he said.  That section set out limitations                     
  regarding the DEC's ability to adopt state standards which                   
  exceed federal clean air standards.                                          
                                                                               
  REPRESENTATIVE HANLEY added that another area which was                      
  subject to debate was the duration of permits.                               
                                                                               
  Number 161                                                                   
                                                                               
  TOM CHAPPLE, PROJECT MANAGER, AIR QUALITY MANAGEMENT                         
  SECTION, DIVISION OF ENVIRONMENTAL QUALITY, DEC, stated that                 
  the Clean Air Act amendments had been signed into law by                     
  President Bush in 1990.  Parts of the Act were already being                 
  implemented, he said; however, the permit program required                   
  that the state enact statutory changes.  He noted that the                   
  1990 law represented the first major overhaul of the Clean                   
  Air Act since 1970.  He said that HB 167 only dealt with                     
  fixed sources of air pollution, not mobile ones.                             
                                                                               
  MR. CHAPPLE said that the state currently issued permits for                 
  approximately 170 entities; when the state comes into                        
  compliance with federal law, that number would rise to                       
  approximately 450.  He noted that because the federal Act                    
  applied to small industries and businesses, Congress created                 
  the Small Business Assistance Program to help small                          
  companies understand and comply with the law.  He stated                     
  that another major feature of the federal Act was the acid                   
  rain reduction program, from which Alaska was exempt.                        
                                                                               
  MR. CHAPPLE said that if the state did not take the lead in                  
  enforcing clean air standards, then the federal                              
  Environmental Protection Agency (EPA) would.  He indicated                   
  the DEC's desire to serve as a "one-stop shopping" entity on                 
  air quality permits.                                                         
                                                                               
  MR. CHAPPLE commented that in the 1990 Act, Congress had                     
  designated 189 hazardous air pollutants.  Before passage of                  
  that Act, he said, there had been only seven designated                      
  hazardous air pollutants.  He mentioned that the current                     
  program pertained to "ambient" air quality standards.                        
  Those, he said, related to air which people breathed.  In                    
  addition, he noted, there were "out-of-stack," or emission                   
  standards.  He stated that the 1990 Act would deal with                      
  emission standards only, and not ambient standards, at least                 
  not for many years.                                                          
                                                                               
  MR. CHAPPLE explained that under current law, if a new                       
  facility produced 250 tons of air pollution per year, that                   
  facility would need a permit.  The 1990 Act would require                    
  any installation, new or existing, which produced over 100                   
  tons of air pollution per year, to get a permit.  He said                    
  that rules for incinerators would remain about the same.  He                 
  mentioned that one of the main categories of facilities that                 
  would need a permit was rural diesel generating equipment.                   
  Under current law, he said, a new generator of about 2350                    
  horsepower would need a permit.                                              
                                                                               
  MR. CHAPPLE pointed out that under the new law any new or                    
  existing generator of greater than 740 horsepower would                      
  require a permit.  He noted that the new law pertained to                    
  relatively small units.  He commented that there would be                    
  few changes to permitting requirements for oil and gas                       
  related activities.  He added that current law required                      
  permits for industrial processing operations which processed                 
  more than five tons per hour.  Most of those facilities                      
  would need permits in the future, he noted.                                  
                                                                               
  MR. CHAPPLE stated that there were three major criteria for                  
  who would need an air quality permit under the new law:  (1)                 
  any facility that produced 100 tons or more of certain types                 
  of air pollution per year; (2) any facility which produced                   
  ten tons or more of any one hazardous air contaminant; or                    
  (3) any facility which produced 25 tons or more of any                       
  aggregate of the hazardous air contaminants.  He explained                   
  that, in addition, a facility that fell under specific                       
  federal emissions standards would require an air quality                     
  permit.                                                                      
                                                                               
  MR. CHAPPLE said that last year, the DEC had surveyed Alaska                 
  businesses to find out which of them would require a permit                  
  under the 1990 Act.  He said that the largest increase was                   
  for electrical utilities.  He noted that most smaller towns                  
  and larger villages would need permits under the 1990 Act.                   
  He said that smaller villages with populations of 100-200                    
  would probably not need permits under the 1990 Act.                          
                                                                               
  MR. CHAPPLE mentioned that some of the state's larger dry                    
  cleaning operations and gas distribution businesses would                    
  also need permits under the new law.  He stated that passage                 
  of HB 167 would allow the state to have sole jurisdiction                    
  over its air quality programs.  Currently, he said, the                      
  state shared jurisdiction with the federal government.  He                   
  explained that HB 167 contained many checks and balances.                    
  He said that HB 167 would help to ensure the health of the                   
  public, but would require that the state use "good science"                  
  when regulating emissions to protect the public's health.                    
                                                                               
  MR. CHAPPLE noted that under the bill, the permit program                    
  would be sustained through permit fees.  He said that the                    
  fee structure was designed to stimulate efficiency from both                 
  industry and government.  He explained that the 1990 Act                     
  required public participation.  He told the committee                        
  members that one "general permit" would be developed for a                   
  certain type of facility, and used for multiple facilities                   
  of that type.  The public process for those permits, he                      
  added, would be at the time that the general permit was                      
  being created.  After that, he said, these permits would be                  
  issued pretty much "over the counter."                                       
                                                                               
  MR. CHAPPLE expressed an opinion that the state needed to                    
  have a permit system for which everyone knew the rules and                   
  understood the process.  He said that current regulations                    
  were very unclear.  He mentioned that the state needed to                    
  submit its permit program -- statutes and regulations -- to                  
  the federal government by November.  If the state missed                     
  that date, or submitted a plan which was not satisfactory to                 
  the EPA, he said, there was an 18-month period during which                  
  the federal government could choose to invoke sanctions.                     
                                                                               
  MR. CHAPPLE noted that May, 1995 was a final deadline, by                    
  which the EPA was required to impose sanctions, including                    
  the loss of federal highway funds, on states which had not                   
  complied with the new law.  Additionally, at that point, the                 
  EPA would begin implementing air quality permits in Alaska.                  
                                                                               
  Number 439                                                                   
                                                                               
  JEFF OTTESEN, CHIEF, RIGHT OF WAY AND ENVIRONMENT, DIVISION                  
  OF ENGINEERING AND OPERATIONS, DEPARTMENT OF TRANSPORTATION                  
  AND PUBLIC FACILITIES (DOTPF), testified that the state's                    
  failure to do what the EPA would do anyway could result in                   
  the state losing federal highway funds.  He noted that the                   
  sanction for not implementing an approved air quality                        
  program was the loss of 100% of the state's federal highway                  
  funds.  After May, 1995, he said, the federal government                     
  would have no choice but to deny the state those funds.  He                  
  added that airport projects in the state would also be at                    
  risk, if the state failed to adopt its own air quality                       
  program.                                                                     
                                                                               
  Number 452                                                                   
                                                                               
  REPRESENTATIVE JOE GREEN asked Mr. Ottesen if the federal                    
  government had set out specific amounts of air pollutants                    
  that a facility could emit.                                                  
                                                                               
  Number 458                                                                   
                                                                               
  MR. OTTESEN replied that specific pollutant amounts were                     
  published in the federal Clean Air Act.  He said that the                    
  state's non-attainment areas registered somewhere above                      
  those numbers, but were not significantly above them.                        
                                                                               
  Number 474                                                                   
                                                                               
  CHERYL RICHARDSON, from the CLEAN AIR COALITION, testified                   
  via teleconference from Anchorage.  She noted that Ms. Aimee                 
  Boulanger had been representing her organization's interests                 
  on the DEC working group.  She expressed concern about the                   
  bill's provisions regarding setting standards more stringent                 
  than those of the federal government.  She stated that the                   
  Anchorage Assembly had taken a position that it wanted the                   
  right to set standards more stringent than those of the                      
  state.  She did not see the Assembly's desire expressed in                   
  HB 167's language.                                                           
                                                                               
  MS. RICHARDSON expressed an opinion that a community ought                   
  to be able to set standards as they saw fit.  She also                       
  expressed concern about the general permits described in                     
  HB 167.  She mentioned a dirt burning operation which had                    
  been permitted to operate in Fairbanks, and had relocated to                 
  Anchorage, yet did not have to go through public notice                      
  requirements.  She said that the bill did not provide                        
  sufficient protection to communities.  She expressed concern                 
  that HB 167's general permits would be misunderstood by the                  
  public, who would lose their opportunity to comment.                         
                                                                               
  MS. RICHARDSON noted her organization's concern regarding                    
  HB 167's provision regarding permit duration.  She mentioned                 
  a permitted operator in Anchorage, who had been violating                    
  his permit for years.  She commented that writing a permit                   
  for five years, for a known violator, was not acceptable.                    
  She stated that people counted on the law, the Clean Air                     
  Act, and the legislature to protect them.  She urged the                     
  committee to look out for their constituents' interests.                     
                                                                               
  Number 529                                                                   
                                                                               
  CHAIRMAN BRIAN PORTER mentioned that Ms. Richardson had been                 
  active in air quality issues in Anchorage for many years.                    
                                                                               
  Number 531                                                                   
                                                                               
  REPRESENTATIVE JIM NORDLUND asked Mr. Chapple if the general                 
  permit sections in HB 167 were included due to federal                       
  requirements.                                                                
                                                                               
  Number 533                                                                   
                                                                               
  MR. CHAPPLE responded that the general permit provisions                     
  were an elective for the state.  He said that the DEC felt                   
  general permits were an important feature in reducing the                    
  implementation effort for the air quality program.  He noted                 
  that if the EPA was to implement the 1990 law, they would                    
  not use the tool of general permits.                                         
                                                                               
  Number 539                                                                   
                                                                               
  CHAIRMAN PORTER asked Mr. Chapple to explain the difference                  
  between a general permit and a "specific" permit.                            
                                                                               
  Number 540                                                                   
                                                                               
  MR. CHAPPLE replied that general permits would be                            
  constructed to serve a broad number of similar                               
  installations.  They would be developed and put out for                      
  public review at one time, and issued without additional                     
  public review to any facility which fit the description                      
  within the permit.                                                           
                                                                               
  Number 554                                                                   
                                                                               
  CHAIRMAN PORTER asked if there were differing climatic                       
  conditions around the state which would have a bearing on                    
  the suitability of a general permit for certain areas.                       
                                                                               
  Number 556                                                                   
                                                                               
  MR. CHAPPLE commented that such factors needed to be                         
  considered.  He stated that certain types of general permits                 
  might be able to be applied statewide, while others might                    
  need to be location-specific.  Some facilities, he said,                     
  while theoretically included in a general permit, might                      
  require a specific permit, as climatic conditions would                      
  prohibit the wise use of a general permit.                                   
                                                                               
  Number 565                                                                   
                                                                               
  CHAIRMAN PORTER asked Mr. Chapple if HB 167 would give the                   
  DEC the regulatory ability to make those types of decisions.                 
                                                                               
  Number 566                                                                   
                                                                               
  MR. CHAPPLE replied in the affirmative.                                      
                                                                               
  TAPE 93-47, SIDE B                                                           
  Number 000                                                                   
                                                                               
  REPRESENTATIVE HANLEY commented that HB 167 would impact not                 
  just large oil refineries, but also small, "mom-and-pop"                     
  businesses which might be able to use a general permit.  He                  
  stated that the DEC had the authority, through compliance                    
  orders, to force permit-holders to meet the conditions of                    
  their permits or be shut down.  He asked Mr. Chapple to                      
  explain what would happen in the event that a facility                       
  received a five-year permit, but did not comply with the                     
  terms of that permit.                                                        
                                                                               
  Number 022                                                                   
                                                                               
  MR. CHAPPLE stated that HB 167 contained specific provisions                 
  allowing the DEC to take action when a permit-holder was not                 
  in compliance with a permit.  He said that typically, when a                 
  facility was out-of-compliance, the DEC and the regulated                    
  entity hammered out a compliance order, which set forth what                 
  the regulated entity would do and when, to come back into                    
  compliance.  He said that usually, there were penalties                      
  within the compliance order for not complying with the terms                 
  of the order.  He concluded by saying that, although HB 167                  
  provided for five-year permits, the DEC had the authority to                 
  step in and correct a permittee's course of action during                    
  the term of the permit.                                                      
                                                                               
  Number 061                                                                   
                                                                               
  MS. RICHARDSON said that she had asked the DEC officials if                  
  they knew of any air quality permit applicants who had been                  
  denied a permit.  She was told that they did not know of any                 
  such applicants.  She asked them if any operator had been                    
  shut down or had lost his or her permit.  The answer to that                 
  question was also no, she said.  She mentioned that she had                  
  looked into compliance orders given to a particular operator                 
  in Anchorage, and had found that they had not been followed.                 
  She stated that Anchorage neighborhoods continued to be                      
  concerned about the DEC's enforcement capabilities.                          
                                                                               
  Number 078                                                                   
                                                                               
  REPRESENTATIVE JEANNETTE JAMES asked if general permits                      
  would contain any provisions for seasonal operations.                        
  Additionally, she asked if a municipality would be able to                   
  impose more stringent standards than those imposed by the                    
  state.                                                                       
                                                                               
  Number 090                                                                   
                                                                               
  REPRESENTATIVE HANLEY called Representative James' attention                 
  to section 2 of HB 167.  He said that the philosophy behind                  
  the proposed AS 46.14.010 on page 2 was that the state                       
  should not go beyond federal standards unless just cause was                 
  shown.  He noted that this was one of the controversial                      
  areas of the bill.  He stated that HB 167 allowed local                      
  communities to adopt their own air emissions programs, by                    
  going through the same process that the state would go                       
  through to show cause for adopting standards more stringent                  
  than the federal standards.                                                  
                                                                               
  REPRESENTATIVE HANLEY commented that the state or a local                    
  government had to go through a public hearing process and                    
  demonstrate many things to show why they needed to impose                    
  more stringent standards, including that exposure profiles                   
  or meteorological conditions were significantly different in                 
  the area that wanted to impose the more stringent standards,                 
  that the more stringent standards were necessary for                         
  protecting human health and welfare, and the environment,                    
  and that the proposed standards were technologically and                     
  economically feasible.                                                       
                                                                               
  REPRESENTATIVE HANLEY explained the "peer review" process                    
  required for the state or local government, in the event                     
  that it wanted to impose more stringent air quality                          
  standards.  He noted that it was not impossible for the                      
  state or a local government to adopt more stringent                          
  standards, but said that checks and balances on this power                   
  were part of the system.                                                     
                                                                               
  Number 158                                                                   
                                                                               
  CHAIRMAN PORTER asked Representative Hanley if local                         
  governments would go through the same process as the state,                  
  if either wanted to adopt standards more stringent than                      
  those imposed by the federal government.                                     
                                                                               
  Number 159                                                                   
                                                                               
  REPRESENTATIVE HANLEY replied in the affirmative.  He noted                  
  that this section of HB 167 was one of the controversial                     
  sections.                                                                    
                                                                               
  Number 166                                                                   
                                                                               
  REPRESENTATIVE JAMES commented that it made sense to require                 
  the state to go though a certain process if it wanted to                     
  impose standards more stringent than the federal standards.                  
  However, she said that if she was part of a local                            
  government, she would not want to be tied to the same                        
  process.                                                                     
                                                                               
  Number 178                                                                   
                                                                               
  REPRESENTATIVE HANLEY stated that the federal government                     
  required the state to create a dedicated fund in which the                   
  cost of implementing the permitting program would be covered                 
  by the regulated entities.  Because regulated industries                     
  would have to pay their own way, he said, the state and                      
  local governments had to show cause for implementing                         
  standards more stringent than the federal standards.                         
                                                                               
  Number 199                                                                   
                                                                               
  REPRESENTATIVE JAMES asked if local communities had any                      
  input in the DEC permitting process.                                         
                                                                               
  Number 205                                                                   
                                                                               
  MR. CHAPPLE replied that HB 167 was structured to bring                      
  local governments in as "partners" with the state in                         
  implementing the permit program at the local level.  He said                 
  that the Clean Air Act was developed to employ a single                      
  entity in running the permit program.  However, he said,                     
  local governments could either act as "stand alone"                          
  entities, or work as partners with the entity administering                  
  the permit program.  Due to the complexity of the law, he                    
  said, it would not be beneficial for local governments to                    
  operate a "stand alone" program.                                             
                                                                               
  MR. CHAPPLE advised that the DEC would take on local                         
  governments as partners, and permit fees would go to the                     
  state, which would then in turn provide financial assistance                 
  to the local governments.  He commented that Anchorage and                   
  Fairbanks already employed programs which controlled mobile                  
  source air pollution.  House Bill 167 would not affect those                 
  programs, he said.  He added that the DEC working group had                  
  included a representative from the Alaska Municipal League.                  
                                                                               
  Number 250                                                                   
                                                                               
  REPRESENTATIVE GREEN asked Mr. Chapple to comment on                         
  Alaska's exemption from the acid rain provisions of the 1990                 
  Act.                                                                         
                                                                               
  Number 255                                                                   
                                                                               
  MR. CHAPPLE mentioned that the state still needed to be                      
  concerned with nitrogen oxide emissions.  The acid rain                      
  program, he noted, would, over time, "ratchet down"                          
  emissions of nitrogen oxides and sulphur oxides from power                   
  plants.                                                                      
                                                                               
  Number 270                                                                   
                                                                               
  REPRESENTATIVE GREEN asked Mr. Chapple if he was the DEC                     
  official who would make determinations about oxygenated                      
  fuels.                                                                       
                                                                               
  Number 274                                                                   
                                                                               
  MR. CHAPPLE responded in the negative.                                       
                                                                               
  Number 277                                                                   
                                                                               
  MS. RICHARDSON stated that it appeared that the language                     
  included in the draft committee substitute for HB 167                        
  regarding the state and local governments imposing standards                 
  more stringent than the federal standards was different from                 
  the language produced by the DEC working group.  She said                    
  that the two instances in which she had watched the state                    
  attempt to set standards more stringent than federal                         
  standards were for ammonia standards at the Nikiski Unocal                   
  urea plant and for benzene control at the Alyeska terminal                   
  in Valdez.  In both cases, she said, industry had led the                    
  state on a "merry chase."  Industry had simply "outgunned"                   
  state officials, she said.                                                   
                                                                               
  Number 293                                                                   
                                                                               
  CHAIRMAN PORTER noted that the committee had before it a                     
  work draft dated April 1, 1993.                                              
                                                                               
  Number 297                                                                   
                                                                               
  REPRESENTATIVE NORDLUND asked Mr. Chapple what the DEC                       
  working group's consensus had been on the state setting                      
  standards more stringent than the federal standards.                         
                                                                               
  Number 301                                                                   
                                                                               
  MR. CHAPPLE commented that the DEC working group had made it                 
  a priority to address those provisions which were essential                  
  features of HB 167.  He said that the working group had made                 
  a policy decision to say that it should be appropriate for                   
  the DEC to go beyond federal law if that decision was made                   
  in an effort to protect public health and the environment,                   
  and if that decision was based on sound science.  He said                    
  that when the working group had created its finished                         
  product, before the legislative session began, the group had                 
  not specifically taken up the language which now appeared as                 
  proposed AS 46.10.010 and .015                                               
                                                                               
  MR. CHAPPLE noted, however, that the group did craft the                     
  concept that the state should have the ability to go beyond                  
  federal law.  Since the session started, he noted, many                      
  people had expressed interest in language in last year's                     
  bill which prescribed in great detail the requirements for                   
  allowing the state to impose standards more stringent than                   
  federal standards.  He stated that the DEC working group had                 
  prepared an alternative to the language in last year's bill.                 
                                                                               
  MR. CHAPPLE added that the Senate Resources subcommittee,                    
  had reviewed that language and decided to create a                           
  compromise taking some features from the previous year's                     
  bill and some features from the DEC working group's                          
  language.                                                                    
                                                                               
  Number 336                                                                   
                                                                               
  REPRESENTATIVE NORDLUND asked if either the Senate Resources                 
  subcommittee or the DEC working group had discussed reasons                  
  why the normal regulation writing process was not adequate                   
  for ensuring that sound science was the basis for deciding                   
  to impose standards stricter than federal standards.                         
                                                                               
  Number 345                                                                   
                                                                               
  REPRESENTATIVE HANLEY responded that, during the regulation                  
  writing process, the administration often wrote what it                      
  wanted to write, without considering what was prescribed in                  
  statute.                                                                     
                                                                               
  Number 364                                                                   
                                                                               
  MR. CHAPPLE commented that it would be a relatively                          
  infrequent event in which the state decided to go beyond                     
  what was required by federal law.  He mentioned two cases in                 
  the recent past, in which the state had gone beyond federal                  
  law.  One case involved public health standards for ammonia,                 
  which principally applied to the Unocal plant in the north                   
  Kenai Peninsula.  Another case involved benzene emissions in                 
  the Government Hill area of Anchorage.  He noted that there                  
  were a few pollution sources which needed permits under                      
  current law, but which would, under the new law, not meet                    
  the 100-ton criterion for requiring a permit.                                
                                                                               
  MR. CHAPPLE pointed out that some of those were small- to                    
  moderate-sized municipal incinerators, which did not produce                 
  a great deal of air pollution, but were still of concern to                  
  the public.  He said that the state would need to assess                     
  whether permits should still be required for such                            
  facilities.                                                                  
                                                                               
  Number 394                                                                   
                                                                               
  REPRESENTATIVE HANLEY stated that if the DEC found that a                    
  polluter posed a significant threat to public health, and a                  
  peer review team supported those findings, it would make for                 
  a stronger case for the state to impose standards more                       
  stringent than the federal standards.  Conversely, if the                    
  DEC's findings were not upheld by a peer review, then the                    
  case for imposing more stringent standards would be                          
  difficult to justify.  He said that the peer review could be                 
  beneficial to either industry or the state.                                  
                                                                               
  Number 412                                                                   
                                                                               
  REPRESENTATIVE NORDLUND expressed concerns about the                         
  composition of the peer review panels.  He asked if there                    
  was an opportunity for an expert, not affiliated with                        
  industry, but who had public health concerns in mind, to                     
  participate on a peer review panel.                                          
                                                                               
  Number 415                                                                   
                                                                               
  MR. CHAPPLE replied that a peer review group would serve not                 
  as a collective body, but as independent reviewers.  He said                 
  that a minimum of three experts would be chosen to review a                  
  situation.  All of the experts would work independently to                   
  critique the DEC's findings.                                                 
                                                                               
  Number 440                                                                   
                                                                               
  REPRESENTATIVE HANLEY pointed out that the DEC would choose                  
  technically-qualified persons to serve as peer reviewers.                    
                                                                               
  Number 452                                                                   
                                                                               
  CHAIRMAN PORTER presumed that the sections being discussed                   
  were not among those sections which had unanimous support.                   
  He asked for a summary of other parts of HB 167 which did                    
  not have unanimous support.                                                  
                                                                               
  Number 455                                                                   
                                                                               
  REPRESENTATIVE HANLEY stated that another section of HB 167                  
  which did not enjoy unanimous support was the one pertaining                 
  to durations of permits.  He noted that regulated industries                 
  were concerned about the expensive process they had to go                    
  through in order to get a permit.  Permits which were good                   
  for five years, instead of three years, would cut down costs                 
  to industry, he said.  He added that if a regulated entity                   
  was not complying with a permit, the DEC had the authority                   
  to modify or terminate the permit.                                           
                                                                               
  REPRESENTATIVE GREEN commented that it was not only very                     
  expensive to get a permit now, but that it also involved a                   
  very time-consuming process.  He asked if HB 167 would                       
  result in a shorter process.                                                 
                                                                               
  Number 477                                                                   
                                                                               
  MR. CHAPPLE stated that some permits for certain larger                      
  facilities would still require time-consuming federal                        
  review, even after HB 167 was enacted.  He said that the DEC                 
  intended to streamline its permit program, to ensure that                    
  applicants knew exactly what materials they needed to                        
  submit.  He noted that the DEC had focused its efforts to                    
  shorten the permit process on smaller, similar facilities                    
  which could use general permits.  The general permits would                  
  result in an expedited process, he stated.  Additionally,                    
  costs would be shared when general permits were employed.                    
                                                                               
  MR. CHAPPLE added that HB 167 contained provisions for                       
  temporary facilities, or those which were periodically moved                 
  from location to location, including oil production                          
  equipment.                                                                   
                                                                               
  Number 505                                                                   
                                                                               
  REPRESENTATIVE GREEN asked how costs could be shared by                      
  several entities operating under the same general permit,                    
  given that facilities would acquire permits at different                     
  times.                                                                       
                                                                               
  Number 510                                                                   
                                                                               
  MR. CHAPPLE replied that all applicants for general permits                  
  would pay the same amount.                                                   
                                                                               
  Number 511                                                                   
                                                                               
  REPRESENTATIVE GREEN asked how long it would take to get                     
  regulations in place, once HB 167 was enacted.                               
                                                                               
  Number 512                                                                   
                                                                               
  MR. CHAPPLE stated that the federal government required the                  
  state to have its statutes and regulations in place by                       
  November 15, 1993.  He said that in reality, that would not                  
  happen, due to the complexity of the regulations and the                     
  need for the DEC to receive a lot of input from the                          
  regulated community on them.  He noted that the 40-page                      
  HB 167 would probably produce 140 pages of regulations.  He                  
  commented that he did not expect to have the regulations in                  
  place until the following spring.                                            
                                                                               
  TAPE 93-48, SIDE A                                                           
  Number 000                                                                   
                                                                               
  REPRESENTATIVE NORDLUND understood that federal law provided                 
  that permits could be issued for a maximum of five years.                    
  But he perceived that HB 167 was allowing permits to be                      
  issued for a minimum of five years.                                          
                                                                               
  Number 017                                                                   
                                                                               
  MR. CHAPPLE stated that federal law specified that permits                   
  could be issued for up to five years.                                        
                                                                               
  Number 021                                                                   
                                                                               
  REPRESENTATIVE NORDLUND mentioned that HB 167 also referred                  
  to permits containing a compliance schedule.  He asked if a                  
  compliance schedule indicated that a permit-holder had                       
  violated the permit at some point.                                           
                                                                               
  Number 027                                                                   
                                                                               
  MR. CHAPPLE replied that any facility which had a compliance                 
  problem would also receive a five-year permit.                               
                                                                               
  Number 032                                                                   
                                                                               
  REPRESENTATIVE NORDLUND asked if, under HB 167's provisions,                 
  the state did not have the option of shortening the term of                  
  a permit, in the event that a facility was out of                            
  compliance.                                                                  
                                                                               
  MR. CHAPPLE replied in the affirmative.                                      
                                                                               
  Number 039                                                                   
                                                                               
  REPRESENTATIVE HANLEY called the members' attention to page                  
  37 of the bill, which included the penalties' section.  He                   
  said that current penalties for violating air or water                       
  pollution standards had been modified to comply with federal                 
  law.  He said that under HB 167, violations were                             
  misdemeanors.  He noted that the DEC working group had                       
  suggested making certain violations felonies.  He mentioned                  
  that certain oil discharge violations were classified as                     
  felonies under existing law.                                                 
                                                                               
  Number 072                                                                   
                                                                               
  MR. CHAPPLE mentioned that the working group had decided                     
  that certain actions would be classified as felonies, and                    
  others would be classified as misdemeanors.  He added that                   
  the working group had discussed an idea in which permit-                     
  holders would have to educate their equipment operators                      
  about the potential criminal consequences of their actions.                  
                                                                               
  Number 123                                                                   
                                                                               
  REPRESENTATIVE HANLEY stated that he and Mr. Chapple had now                 
  reviewed the main controversial areas of HB 167 for the                      
  committee.                                                                   
                                                                               
  Number 128                                                                   
                                                                               
  MR. CHAPPLE said that the issue of timely public notice                      
  pertained to both general permits and permits for temporary                  
  operations.  He said that in the case of a facility which                    
  moved around from location to location, the public notice                    
  period would occur before the permit was initially issued.                   
  However, he said, if the facility was not going to move to a                 
  particular location until three years later, the public                      
  might be unaware of or unconcerned about the permit at the                   
  time that the public comment period was scheduled.  He                       
  mentioned concerns that, in the case of temporary                            
  facilities, DEC ought to require more timely notice                          
  provisions in HB 167.                                                        
                                                                               
  Number 154                                                                   
                                                                               
  REPRESENTATIVE GAIL PHILLIPS asked how many other states had                 
  already come into compliance with the 1990 Act.                              
                                                                               
  MR. CHAPPLE replied that, as of last fall, about six or                      
  eight states had yet to enact statutes complying with the                    
  federal law.  Also by that time, he said, approximately 20                   
  states had statutes in place, but were working on                            
  regulations.  He said that the vast majority of the states                   
  had enacted statutes last year, and were currently working                   
  on regulations.  He noted that while Alaska was not alone,                   
  it was "behind the pack."                                                    
                                                                               
  Number 172                                                                   
                                                                               
  REPRESENTATIVE GREEN asked what would happen if a local                      
  government received authority to adopt standards more                        
  stringent than the state or the federal government.  "Who                    
  would enforce those standards?" he asked.                                    
                                                                               
  Number 180                                                                   
                                                                               
  MR. CHAPPLE responded that it would depend on whether the                    
  local government had adopted a "stand alone" program, or                     
  whether the local government was in partnership with the                     
  state.  If the local government was in partnership with the                  
  state, he said, then they would make an agreement as to                      
  which entity would perform which actions.  Local governments                 
  adopting a "stand alone" program would have enforcement                      
  authority, he added.                                                         
                                                                               
  Number 192                                                                   
                                                                               
  CHAIRMAN PORTER asked if HB 167 was in need of certain                       
  technical amendments.                                                        
                                                                               
  Number 193                                                                   
                                                                               
  REPRESENTATIVE HANLEY said that it was possible, but that he                 
  was not yet certain.                                                         
                                                                               
  Number 200                                                                   
                                                                               
  CHAIRMAN PORTER commented that representatives from the                      
  Alaska Environmental Lobby would be present at the next                      
  hearing on HB 167, on Saturday, April 3, 1993.                               
                                                                               
  Number 202                                                                   
                                                                               
  REPRESENTATIVE NORDLUND said that the committee might want                   
  to discuss the issue of aggrieved individuals and who had                    
  standing in terms of civil litigation.  He stated that the                   
  original HB 167 provided that a person who participated in                   
  the public comment process or a person who had a private,                    
  substantive, or legally-protected interest under state law                   
  could bring an action.  He asked if that provision was                       
  included in the draft committee substitute.                                  
                                                                               
  REPRESENTATIVE HANLEY replied that it was.                                   
                                                                               
  Number 218                                                                   
                                                                               
  MR. CHAPPLE commented that the issue was who could receive                   
  judicial review.  He said that HB 167 held that a person had                 
  to have a private, substantive, or legally-protected                         
  interest if he or she had not participated in the public                     
  comment process.  He called the members' attention to page                   
  12, lines 21-22.  He noted that there was some confusion                     
  regarding this section of the bill.  He stated that Mr.                      
  Robert Reges, from the Department of Law, had researched                     
  this issue and could provide the committee with additional                   
  information.                                                                 
                                                                               
  ADJOURNMENT                                                                  
                                                                               
  CHAIRMAN PORTER adjourned the meeting at 9:01 p.m.                           

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