Legislature(1997 - 1998)
01/30/1997 10:04 AM House O&G
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE SPECIAL COMMITTEE ON OIL AND GAS
January 30, 1997
10:04 a.m.
MEMBERS PRESENT
Representative Mark Hodgins, Chairman
Representative Scott Ogan
Representative Norman Rokeberg
Representative Joe Ryan
Representative Con Bunde
Representative J. Allen Kemplen
MEMBERS ABSENT
Representative Tom Brice
COMMITTEE CALENDAR
HOUSE BILL NO. 51
"An Act relating to the Department of Environmental Conservation."
- MOVED CSHB 51(O&G) OUT OF COMMITTEE
OVERVIEWS: Department of Natural Resources; Department of Revenue
- POSTPONED TO FEBRUARY 6, 1997
PREVIOUS ACTION
BILL: HB 51
SHORT TITLE: REGULATIONS OF DEPT OF ENV. CONSERVATION
SPONSOR(S): REPRESENTATIVE(S) ROKEBERG, KELLY, Foster
JRN-DATE JRN-PG ACTION
01/13/97 41 (H) PREFILE RELEASED 1/10/97
01/13/97 41 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 41 (H) OIL & GAS, FINANCE
01/22/97 125 (H) COSPONSOR(S): FOSTER
01/23/97 (H) O&G AT 10:00 AM CAPITOL 124
01/23/97 (H) MINUTE(O&G)
01/30/97 (H) O&G AT 10:00 AM CAPITOL 124
WITNESS REGISTER
BRUCE CAMPBELL, Legislative Assistant
to Representative Pete Kelly
Alaska State Legislature
Capitol Building, Room 411
Juneau, Alaska 99801
Telephone: (907) 463-2327
POSITION STATEMENT: Explained differences between HB 51 and
CSHB 51, Version K.
MAC MCLEAN, Representative
Division of Habitat and Restoration
Department of Fish and Game
1300 College Road
Fairbanks, Alaska 99701-1557
Telephone: (907) 459-7281
POSITION STATEMENT: Testified in support of Amendment 1 to HB 51.
GERSHON COHEN, Executive Director
Alaska Clean Water Alliance
P.O. Box 1441
Haines, Alaska 99827
Telephone: (907) 766-2296
POSITION STATEMENT: Testified on HB 51.
DWIGHT HALES
P.O. Box 1048
Haines, Alaska 99827
Telephone: (907) 766-2874
POSITION STATEMENT: Testified on HB 51.
SUSAN SCHRADER, Executive Director
Alaska Environmental Lobby
P.O. Box 22151
Juneau, Alaska 99802
Telephone: (907) 463-3366
POSITION STATEMENT: Testified on HB 51.
DOUGLAS MERTZ
Prince William Sound Regional
Citizens Advisory Council
319 Seward Street
Juneau, Alaska 99801
Telephone: (907) 586-4024
POSITION STATEMENT: Testified on HB 51.
MARIE SANSONE, Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99801-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Testified on HB 51.
ACTION NARRATIVE
TAPE 97-3, SIDE A
Number 001
CHAIRMAN MARK HODGINS called the House Special Committee on Oil and
Gas to order at 10:04 a.m. Members present at the call to order
were Representatives Ogan, Rokeberg, Ryan, Kemplen and Hodgins.
Absent was Representative Brice. Chairman Hodgins noted
Representative Bunde was testifying at another meeting.
HB 51 - REGULATIONS OF DEPT OF ENV. CONSERVATION
Number 070
CHAIRMAN HODGINS announced the committee would continue the hearing
on HB 51, "An Act relating to the Department of Environmental
Conservation." He stated his intention to move the bill out of
committee.
Number 100
REPRESENTATIVE NORMAN ROKEBERG, sponsor of HB 51, explained he had
a proposed committee substitute for HB 51, Version K. He moved to
adopt CSHB 51, 0-LS0091\K, Lauterbach, 1/29/97.
CHAIRMAN HODGINS asked if there was an objection to the adoption of
the committee substitute.
Number 243
REPRESENTATIVE SCOTT OGAN objected for the purposes of comparison
and discussion.
Number 260
REPRESENTATIVE ROKEBERG called upon Bruce Campbell from the office
of Representative Pete Kelly, a prime cosponsor of the bill, to
explain the differences between the original HB 51 and Version K.
Number 286
BRUCE CAMPBELL, Legislative Assistant to Representative Pete Kelly,
Alaska State Legislature, had been asked to review comments
provided in the last discussion, particularly those of the
Department of Environmental Conservation (DEC), the Department of
Fish and Game (ADF&G) and the public. He explained differences
between the two bill versions. In Section 2 of the original bill,
there was language about "economically feasible" that required the
DEC to hire several economists. That language had been deleted.
Currently, Section 2, page 1, reads that the department may not
adopt a regulation under this section unless the regulation is
based on science.
MR. CAMPBELL said part (c), defining "background condition," had
also been added in Section 2. This seemed to be a point of concern
for the DEC. A definition had been brought in from the state of
Washington, and this was briefly reviewed by the DEC. Mr. Campbell
believed the definition would help the DEC in their regulation
writing process.
MR. CAMPBELL informed the committee that Section 3 is unchanged.
He referred to the Governor's news release dated January 24, 1997,
included in the committee files. Mr. Campbell said the Governor is
asking for the same thing and is promoting the Minerals Commission
recommendation that the state assume primacy for the National
Pollutant Discharge Elimination System (NPDES) Permit Program. Mr.
Campbell stated, "So, we have clear support for that, we believe,
from the Administration."
Number 449
MR. CAMPBELL referred to Section 4, number (4), on page 2, line 25,
and said the Resources Defense Council noted, at the previous
committee meeting, that some of the language was confusing. The
Department of Fish and Game also suggested adjusting language in
their written comments. The Minerals Commission Report further
noted there was confusion over the use and construction of the
phrase "receiving water". Mr. Campbell explained that in trying to
produce some carefully crafted language, verbatim comments from the
Minerals Commission had been combined with some of the comments
from the Department of Fish and Game. He pointed out this was
probably the most substantive change from the original bill,
Version B, to the committee substitute, Version K. The latter
clearly states, "may not require water discharged by a user to be
of higher quality than the natural condition of the water receiving
the discharge".
MR. CAMPBELL noted there had been confusion as to whether it was
the water the discharger received to use in a plant or mill, or the
water at the discharge point. Pulp mills in salt water receive
fresh water in their processing but discharge into salt water. The
discharge point is the point of issue and reference here, he
emphasized. That is modified by language from the Minerals
Commission Report. Mr. Campbell said in talking with water quality
experts, he believes this will greatly assist the DEC in
development of regulations.
Number 578
MR. CAMPBELL explained that page 3, lines 29 and 30, Section 4,
adds a new section (f), which refers to the background condition
mentioned in Section 2. He believed the remaining portions of the
bill are unchanged from the version referred to the committee.
Number 614
REPRESENTATIVE ROKEBERG asked when the Alaska Minerals Commission
Report was issued.
MR. CAMPBELL responded it was a 1997 report released within the
last couple of weeks. He believed everyone's office received the
report.
REPRESENTATIVE ROKEBERG asked Mr. Campbell to discuss technical
amendments that Representatives Rokeberg and Kelly were proposing.
He noted there was a series of technical changes from the
recommendations of the ADF&G, which they wished to offer as
Amendment 1.
REPRESENTATIVE OGAN pointed out there was a motion on the table to
accept the committee substitute. He noted that he had objected for
the purpose of discussion.
CHAIRMAN HODGINS advised there was a proposed committee substitute
before the committee.
Number 738
REPRESENTATIVE KEMPLEN stated he received a copy of a letter from
the DEC, dated January 30. He expressed uncertainty as to whether
the committee substitute, as presented, addressed the concerns
raised by the DEC.
Number 780
MR. CAMPBELL responded, "It's not in the letter I've seen. It's my
understanding it was presented to the chairman seconds ago, and so
I'm not aware of the letter. And we may have, in fact, addressed
those concerns, but because it was not in a timely fashion, I
cannot answer that question unless I at least see a copy of the
letter here."
CHAIRMAN HODGINS agreed the letter wasn't delivered in a timely
manner. He himself had not had a chance to review it. He
cautioned the committee to deliberate on what was before them at
that point.
Number 822
REPRESENTATIVE KEMPLEN referred to a survey he conducted in his
district asking questions about issues that would probably be
before the legislature. One question he asked was whether
"Regulations should be changed to reduce water quality standards."
Representative Kemplen said 65 percent of his constituents were
opposed to that statement. He believed uncertainty existed about
the impact of the proposed changes. Representative Kemplen said he
would like to be sure the uncertainties were dealt with before
moving forward with the legislation.
CHAIRMAN HODGINS explained the normal course would be to put the
committee substitute before the committee; they were still in that
stage. He stated it would be appropriate to bring the committee
substitute before the committee and then address the proposed
amendments.
Number 931
REPRESENTATIVE JOE RYAN made a motion to adopt the committee
substitute for the purpose of discussion.
REPRESENTATIVE OGAN objected for the purpose of discussion. He
still had a question he would like answered before the committee
substitute was accepted. Representative Ogan asked for an
explanation, from the DEC and the sponsors, of changes in Section
4. He wanted to know the technical differences between water being
of higher quality than background conditions and the new language
of water receiving the discharge.
MR. CAMPBELL responded that the language was compiled from several
comments. He noted there were no written or substantive specifics
from the department other than a review one or two weeks ago. Mr.
Campbell stated, "I do not believe they changed discharge
standards, but they helped define a logic loop that has become a
problem in -- for the department. First off, it's clear that
they're not requiring discharge by a user to be of a higher quality
than the natural condition of the water receiving the discharge."
For example, if a person were using water on the Mendenhall River
and it was muddy, that provided the background number for the
operation. If operating in salt water, there would be a salt water
discharge number, not a fresh water discharge number. It did not,
however, impact uses within that water body.
MR. CAMPBELL indicated that was fairly well explained by language
following the semicolon on page 2, line 26, "if the available
evidence reasonably demonstrates that the natural condition of a
body of water does not meet the standards contained in the water
quality criteria". He said an example would be where water has
natural conditions that would not allow that natural water to meet
water quality criteria. Mr. Campbell continued reading from the
bill, "under regulations of the department and the natural
condition maintains and protects the existing uses of the water".
He explained, "So, if the water quality does not meet the water
criterion applicable to that water under regulations of the
department, and the natural condition maintains and protects
existing uses in that water body, then the natural conditioning of
the body of water constitutes the criterion and must be met by the
- met by the discharger into that body of water."
MR. CAMPBELL stated the key phrase is that the natural condition
maintains and protects existing uses in the water. Uses in salt
water were different from uses in fresh water. In some cases those
standards are lower, and in some cases those standards are higher.
He stated, "But we're saying it's those uses in the discharge water
that become the uses that determine which standards of criteria are
implemented by DEC. And this helps DEC dramatically in determining
a logic loop they've created in their regulatory definition of
`natural condition,' where they're not allowed to discharge
anything but pristine, crystalline water into areas that are not
pristine, they are muddy or they have natural conditions such as
high arsenic in Fairbanks ...." Mr. Campbell noted it is a bit
complicated, but only because of problems created over the past 10
or 15 years in this field.
Number 1187
REPRESENTATIVE OGAN asked if that language was based on another
model.
MR. CAMPBELL replied yes. He referred to the Minerals Commission
Report, page 2, and explained, "They are recommending in dealing
with water and natural conditions, they insert this language, `If
available evidence reasonably demonstrates that the natural
condition of a water body is of lower quality than a water
(indisc.) criterion,' they -- they list for use classes in [18] AAC
70.020(b). Our drafter said, `Well, yes, this is nice, but you
can't cite a regulation in code, which makes sense to us but not
necessarily to the Minerals Commission. And so we have just simply
said, in lieu of that, `under regulations of the department.'"
MR. CAMPBELL noted that ADF&G's letter also identified this as an
area of concern. The ADF&G proposed modifying the first phrase,
"water receiving a discharge". Mr. Campbell explained, "They used
slightly different words, but in discussions with our drafter, we
thought this was the clearest language to say `water receiving a
discharge.'"
REPRESENTATIVE OGAN stated his belief it was good public policy,
when accepting a committee substitute, to debate it before
acceptance.
CHAIRMAN HODGINS said he concurred with Representative Ogan's
concerns.
Number 1291
REPRESENTATIVE RYAN moved to adopt the committee substitute for
discussion purposes.
REPRESENTATIVE KEMPLEN objected.
A roll call vote was taken. Representatives Hodgins, Ogan,
Rokeberg and Ryan voted in favor of adopting the committee
substitute. Representative Kemplen voted against adopting the
committee substitute. So CSHB 51 was adopted.
REPRESENTATIVE RYAN indicated he would like to speak to a
representative from the DEC regarding their letter.
Number 1339
CHAIRMAN HODGINS called for a brief at-ease at 10:25 p.m. The
meeting was called back to order at 10:26 p.m.
REPRESENTATIVE ROKEBERG indicated Mr. Campbell had amendments for
the committee to review. He asked Mr. Campbell to distribute
Amendment 1, generated from Representative Kelly's office, which
read:
Amendment: from ADF&G written comments.
Before: House Oil & Gas Committee
Page 2, line 21. Following "shall consider"
Insert: "reasonably available information on"
Page 3, line 24. following "(e)"
Delete: "The"
Insert: "Except as otherwise provided in AS 46.03.087,
the"
Page 4, line 14. Following "consider"
Insert: "and prepare a written finding assessing"
Page 4, line 15. Delete: "and prepare written findings"
MR. CAMPBELL explained that an excellent letter had been received
from ADF&G the day before, in time for an amendment but too late to
meet drafting deadlines for the committee substitute. He
emphasized that Representative Kelly wanted to compliment the ADF&G
for providing timely, productive and constructive comments.
Number 1457
REPRESENTATIVE ROKEBERG moved that Amendment 1 be adopted.
MR. CAMPBELL discussed Amendment 1. On page 2, line 21, following
"shall consider", it inserted "reasonably available information
on". Mr. Campbell said this was a good point brought up by the
ADF&G. He stated, "There is only a limited amount of background
data available, and if they have to consider every water body
without information, it doesn't do them much good. And so this
would allow the individual applying to provide them some
information, so it would be readily available to them. It would
allow the department, if they knew of other background data, or if
the Division of Water in the Department of Natural Resources
provided some background data, they would have a reasonably
(indisc.) of information of which to base their discussion on
naturally occurring pollutants."
MR. CAMPBELL continued with Amendment 1. On page 3, line 24,
following "(e)", it deleted "The" and inserted, "Except as
otherwise provided in AS 46.03.087, the". Mr. Campbell believed
this to be a logical addition to the bill because the new language
being created in AS 46.03.087 does not override part (e).
MR. CAMPBELL continued with Amendment 1. On page 4, line 14,
Section 2, following "consider", Amendment 1 added, "and prepare a
written finding assessing the technological feasible of the
proposal". On page 4, line 15, Amendment 1 deleted, "and prepare
written findings". Mr. Campbell explained these improved the
language of the bill.
Number 1607
MAC MCLEAN, Representative, Division of Habitat and Restoration,
Department of Fish and Game (ADF&G), testified via teleconference
from Fairbanks. He noted he was standing in for Geron Bruce. He
said the ADF&G accepts the amendments, which reflect the intent of
ADF&G's letter forwarded to the committee.
Number 1640
CHAIRMAN HODGINS asked if there were questions or discussion on
Amendment 1. He asked if there was any objection. There being no
objection to Amendment 1, it was adopted.
REPRESENTATIVE ROKEBERG offered Amendment 2, which read:
TO: CSHB 50\K DATED 1/29/97
PAGE 2, Line 7 after "shall":
DELETE: "seek and maintain"
INSERT: "continue to investigate the feasibility of securing"
REPRESENTATIVE ROKEBERG noted that Amendment 2, relating to Section
3, was intended to authorize the state of Alaska to continue to
investigate the potentiality of taking over, from the federal
government, the National Pollutant Discharge Elimination System
(NPDES) permitting process. "This gives the department statutory
authority to seek this," he explained. As was pointed out by Mr.
Campbell, the committee had page 2 of the Governor's press release.
Representative Rokeberg read from the press release, "Commerce
Commissioner Hensley, whose staff provided the administrative and
professional support for the Alaska Minerals Commission, says it is
recommending that the state should take control of the federal
National Pollutant Discharge Elimination System program to simplify
the permit process. At present, a federal agency based in Seattle
runs the program. The commission believes the process would be
more efficient if it were operated by Alaskans. The water quality
standards would remain subject to federal approval."
REPRESENTATIVE ROKEBERG believed this should be a great help to the
DEC and the state in providing statutory authority. He added,
"Maintaining this particular section of the bill, Mr. Chairman,
should not have a fiscal note responsibility under the nature of
it's draftsmanship and intent. However, I don't believe it is
really under the purview of this body, as a committee, to review
that particular amount of money which is contained in the attached
fiscal note, because the bill has further referral, including the
Finance Committee, which will deal with those particular issues.
In my opinion, there is no requirement under the way this bill is
drafted to have that approximately $3.2 million fiscal note.
That's not the intent of this particular language. But I believe
the Amendment 2, as offered, helps clarify that somewhat, so I
would ask for committee approval."
Number 1819
CHAIRMAN HODGINS noted the motion to accept Amendment 2 and asked
if there were questions.
Number 1825
REPRESENTATIVE OGAN inquired what the ramifications are. He asked
whether the federal government currently has primacy over this
issue.
REPRESENTATIVE ROKEBERG indicated they do presently.
REPRESENTATIVE OGAN indicated he was not sure what the language
does.
REPRESENTATIVE ROKEBERG pointed out the language allows the
department to continue investigating the feasibility of securing
federal approval, under the federal Clean Water Act, of the state's
permitting program to provide these permits. Representative
Rokeberg read from line 11, "If, at any time, the department
determines that statutory or (conjunctively) budgetary changes are
necessary to obtain or maintain federal approval of the state's
program under this subsection, the department shall notify the
legislature through the governor."
REPRESENTATIVE ROKEBERG explained, "In other words, we're giving
them a free hand to implement what is the Governor's policy to
pursue this. Now, if it's going to require substantial monies to
do this, then they need to come to the legislature and ask for
budgetary authority." This language in and of itself only gives
them authority, he said. It does not mandate that they go forward.
Therefore, there should be no fiscal note. But it does give them
clearance to seek this approval, which is optional under the Clean
Water Act.
Number 1920
REPRESENTATIVE KEMPLEN said he believed Representative Rokeberg did
a good job with Amendment 2 and that it is a step forward.
Number 1942
CHAIRMAN HODGINS noted Amendment 2, as proposed by Representative
Rokeberg, was before the committee. He asked if there was an
objection. Hearing none, he advised that Amendment 2 was adopted.
CHAIRMAN HODGINS opened the meeting up for public comment.
Number 2000
GERSHON COHEN, Executive Director, Alaska Clean Water Alliance,
testified via teleconference from Haines. He referred to Section
1 and said it creates a new mission for the DEC. He cited AS
46.03.010(a), relating to the Declaration of Policy, and read it to
the committee members: "It is the policy of the state to conserve,
improve and protect its natural resources and environment, to
enhance the health, safety and welfare of the people of the state
and their overall economic and social well-being."
MR. COHEN also read AS.03.010(b): "It is the policy of the state
to improve and coordinate the environmental plans, functions,
powers and programs of the state to the end that the state may
fulfill its responsibility as trustee of the environment for the
present and future generations." Mr. Cohen explained that in
contrast, HB 51 would mandate the degradation of Alaska's water
quality by weakening the standards that control pollution, just
because a member of the private sector wants to reduce the cost of
treatment for the waste they discharge into waters that belong to
all Alaskans.
MR. COHEN referred to Section 2 and said he supports the removal of
(2)(b)(1). He said Section 087(b)(2) would seem to have a similar
affect on state law. Alaska's Water Quality standards are, by
definition, statewide in their application, and they should not be
modified because of the impact that they have on an individual
discharger. He said individual issues would be more properly
addressed by the state's existing site-specific criteria
regulation, 70.035. Mr. Cohen said the Clean Water Act already
takes economic factors into consideration, but does so in the
context of the attainable uses of the water body, the adoption of
industry-wide performance standards based on specific water quality
criteria and technically achievable treatment methods. These
standards are not intended to have zero impact on all members of an
industry. They were adopted after a thorough analysis of the
technical and economic potential of the industry to reduce
pollution, and they reflect the ability of a majority of players in
an industry to meet the standards. Mr. Cohen said to require that
the regulations are so economically feasible for a person (indisc.)
governed undercuts the primary purpose of the standards and the
department's mission to prohibit pollution that could adversely
impact the public's health and welfare and protect natural
resources of the state.
MR. COHEN referred to Section 2(c). He said substituting the term
"background condition" for the existing term "natural condition"
must be opposed. He stated, "Current water quality standards, as
I said above, already addresses the issue of natural background in
the site-specific criteria section, 70.035. And it is, by the
quote in the definition, of the conditions existing in a water body
prior to any human-caused influence. There is no definition for
`background condition' in the state's regulations. As described in
2(c), water quality lowered as a result of human action, either by
a previously permitted mixing zone or an unpermitted discharge,
would then constitute lower background conditions, granting a new
discharger permission to release more pollution because a previous
discharger lowered natural water quality. It would essentially
authorize a mixing zone for the new discharger without any review
of the appropriateness of further increasing the pollutant loading
in the water body. In addition to inappropriately increasing the
volume of polluted water, this provision would violate the intent
of the mixing zone regulation, 70.240, the provisions requiring an
evaluation prior to the authorization of multiple mixing zones.
Although language has been inserted regarding discharges into
already disturbed watersheds, the term `disturbed watershed' is
undefined."
Number 2197
MR. COHEN referred to Section 4 and said he wasn't clear on it
after hearing Mr. Campbell's comments. "It seems like we're going
back and forth here now between natural and background conditions,"
he explained. "The section, as it's written, violates the most
fundamental tenet of the Clean Water Act. It calls for an end to
(indisc.) toxic discharges into waters of the United States. As
stated above, waters that either were legally or illegally polluted
in the past by human activity should not become the standards of
the future discharge of toxic materials."
CHAIRMAN HODGINS said he would grant Mr. Cohen another minute to
finish up.
MR. COHEN referred to Section 4 and said HB 51 establishes the
requirement that implementation of water quality standards be based
on scientific and technical evidence. "But this direction is
directly undermined by the requirement that ADEC complete their
technical findings, economic evaluation and drafting of regulatory
language within 90 days," he stated. "It would be unlikely that
the ADEC could complete the mandated review for any single
regulation in a 90-day time period. It takes multiple
applications. This language would render ADEC's review process
meaningless."
MR. COHEN referred to Section 46.030.087(a)(2) and said the federal
government has adopted very few water quality standards and
particulars with regard to aquatic life. As a result of these
procedures, it would be very difficult for the state to adopt or to
maintain regulations where no federal standards for criteria exist,
since the adoption could be interpreted as the taking of a more
stringent position than the federal standards. As a result, the
state's water and all who depend upon them will be extremely
vulnerable to the impacts of toxic discharges."
MR. COHEN explained (a)(3) arbitrarily authorizes the power to the
state that belongs to the federal government, such as the right to
approve the testing methods used for compliance of permit
limitations. "Alternative testing methods proposed by the state
must be approved by the EPA," he said. "In conclusion, rather than
simplifying the permitting process, this legislation will lead to
greater and confusion and litigation. Water quality standards are
statewide regulations. How will ADEC choose the specific
conditions to apply to standards, (indisc.), when approached by an
individual discharger, when conditions vary dramatically across
Alaska? Does the legislature intend to lower the statewide
(indisc.) to the lowest condition that occurs for a given parameter
anywhere within the state's waters?"
Number 2276
CHAIRMAN HODGINS called for an at-ease at 10:45 a.m. The meeting
was called back to order at 10:46 a.m.
CHAIRMAN HODGINS noted Representative Rokeberg had questions for
Mr. Cohen, and he asked that responses be brief. He advised Mr.
Cohen that he could submit written comments that would be included
in the bill packet.
Number 2292
REPRESENTATIVE ROKEBERG asked Mr. Cohen how many members are part
of the Alaska Clean Water Alliance.
MR. COHEN stated their membership comes from all over the state.
He indicated he couldn't give an exact number. Mr. Cohen noted the
alliance is supported by organizations and individuals that
represent conservation, public health, fishing, Native rights and
subsistence interests.
REPRESENTATIVE ROKEBERG asked if there were more than three members
or less than six.
MR. COHEN said it was considerably more than six.
REPRESENTATIVE ROKEBERG asked Mr. Cohen if the state of Alaska has
ever issued a site-specific permit.
MR. COHEN responded that he believes they have.
REPRESENTATIVE ROKEBERG replied, "I don't think they have, as a
matter of fact. I think Red Dog's still looking for theirs. Also,
you should be aware that your comments about not being able to
adopt more stringent requirements was in HB 342, which was vetoed
by the Governor, and that was one reason he vetoed the bill, 'cause
it allowed the DEC to adopt more -- less stringent requirements,
you might be interested to note. Plus, your testimony is incorrect
about having to adopt things within 90 days. There's a lot of
misinformation and misunderstanding about what the bill's intent
is. It only indicates that when a petitioner comes forward that
the department must take action within 90 days, either to adopt the
federal standard and/or start the process through the
Administrative Procedures Act, which could take as long as a year,
and allow public comment to adopt a regulation."
Number 2381
DWIGHT HALES was next to testify via teleconference from Haines on
behalf of himself. He asked the committee to consider the issue of
"background conditions." In his view, the definition of
"background conditions" is critical. He asked the committee to be
cautious in what they allow, saying, "for of course you don't want
to craft a dirty-water loophole into a bill intended to protect the
children and adults of Alaska who might be taking (indisc.) toxins
into their bodies. For example, a pre-existing mixing zone
shouldn't become the basis for justifying additional discharges,
which then can be used to justify still more discharges, and so
on." Mr. Hales believed economic considerations should always
remain secondary to health, fish and game considerations,
particularly with so much statewide dependence on subsistence.
"And these health, fish and game considerations are typically based
upon sound scientific evaluation, whereas economic considerations
often have other reasons for their being," he explained. Mr. Hales
concluded by saying, "With the desire to encourage the state in the
interest of efficiency to assume the administrative burden of
NPDES, I would question whether the state can assume this
additional administrative burden in the light of recent and serious
budget cuts. It is the very department responsible for undertaking
such a burden." Mr. Hales said the apparent desire was to so
weaken the department that it would be ineffectual.
TAPE 97-3, SIDE B
Number 017
CHAIRMAN HODGINS noted that any written testimony provided would be
included in the bill packet. He asked if anyone else on
teleconference wished to testify. He then asked Susan Schrader to
come forward and give her testimony.
SUSAN SCHRADER, Executive Director, Alaska Environmental Lobby,
came before the committee to testify. She indicated the Alaska
Environmental Lobby is a coalition of 22 environmental groups and
represents over 10,000 Alaskans who have concerns with conservation
issues. She read her statement into the record:
"Once again, Alaskans are having to come forward to defend our
basic right - our right to access clean water for our families to
drink, to recreate in, and to use for our economic benefits.
"I do need to mention that the public process has been made a bit
more difficult today by the fact that the new version of the bill
was not available until just moments ago, and we also did not have
the benefits of any prior warning of amendments. And I think once
again, this points out to the public that the legislative process
is not always particularly friendly to the public process.
"I grew up in Cleveland, Ohio, back in the days before the Clean
Water Act. My father did not allow myself and my brothers to swim
in Lake Erie. We didn't eat the fish from Lake Erie that we
caught. I was there in Cleveland when the Cuyahoga River, the butt
of many jokes, caught fire.
"But I'm not joking when I state that industry will not, without
strong governmental oversight, necessarily do `the right thing'
when it comes to protecting water quality. It happened in Ohio.
It's going to happen here in Alaska. It has already happened here
in Alaska. Each industry along the banks of the Cuyahoga surely
would have maintained that they could not `afford' the cost to
clean up their discharges, that it may not have been economically
feasible. Each industry along the banks of that Cuyahoga River
that caught fire would probably see no reason why they should
attempt to clean up their discharges, to bring their discharges up
to standard, since the water they were getting from upstream was
already badly polluted. Each industry along the banks of the
Cuyahoga probably would really have loved the language that this
bill presents for natural background and as it's been redefined for
background conditions.
"But Alaska is not Ohio in 1969, so why are we attempting to weaken
the ability of DEC's mandate to protect, conserve and improve our
water quality in this state? Industry will be able to deal with
water quality standards in Alaska that might be higher than federal
standards. They'll be able to handle that. DEC has bent over
backwards to work with industry, and we heard a lot about this last
week. A simple example would have been Mr. Conway's description of
how they work with placer mining to come to grips with the problem
of the high background arsenic levels. This is workable. We don't
need this legislation to interfere. By continuing the yearly deep
budget cuts that are directed at DEC, and by attempting to continue
to pass legislation such as this, the legislature is really trying
to hamstring our resource agencies from fulfilling their missions.
And obviously the public is getting the impression that the short-
term economic gains for industry, the friends of the legislators,
is of much more importance to this body than is the productive,
healthy water of our state that can be used by families of Alaska
now and in the future."
Number 162
REPRESENTATIVE OGAN asked whether the Cuyahoga River borders any
other state boundaries or goes exclusively through Ohio.
MS. SCHRADER indicated it runs exclusively through Ohio.
REPRESENTATIVE OGAN said, "You know, you were talking about your
comment about the background water. So if this law was in place,
if the water was pure at the head waters, that the first plant down
water -- downstream would be getting pure water and they would
required to -- that background water -- you could discharge water
equivalent to that background water. Is that correct? So as you
work your way down the stream, as long as the guys upstream are
abiding by the law, then the water shouldn't be any dirtier
downstream. Is that correct?"
MS. SCHRADER replied, "Yes, and in a perfect world, that is exactly
how my understanding is of the process, how it would work. I guess
the concern comes from many factors that, since I am not a water
quality expert, I don't know. But certainly one big one would be
non-point pollution sources, where those headwaters, as they flow
down, would be being polluted from many small, cumulative sources
that no one could go in and particularly say, `You need a permit or
you need a permit.' And that's what happens, is the water when it
is received by the first big industry is not particularly pure."
REPRESENTATIVE OGAN commented that as long as everyone abided by
the law, the water would not be made dirtier by people who had
these permits and abided by the law.
Number 234
REPRESENTATIVE ROKEBERG said the Federal Clean Water Act and its
various permutations were really the reason the Cuyahoga River and
many other rivers had been cleaned up in this country. He asked
Ms. Schrader, "But are you aware that the nature of this bill, the
thrust of this bill, is to make sure that we are no less than
federal requirements and then, obviously because of the primacy of
federal law, we have to meet those at any rate? And that that is
the thrust of this legislation?"
MS. SCHRADER indicated she was aware of that.
Number 263
REPRESENTATIVE RYAN asked whether Ms. Schrader was familiar with
Lakewood, Ohio, and noted he grew up there.
MS. SCHRADER indicated her father had a medical practice there.
REPRESENTATIVE RYAN said if you go thirty miles up the Cuyahoga,
you can catch some of the nicest fish in the world. He explained
that a large chemical company there used to "dump stuff" in the
river. He asked, "That chemical company, taking in water from the
upstream source and discharging it back into the river in the same
condition they got it from the upstream source, would that not be
an ideal, using the water for whatever purposes, putting it back
the way it was when they got it?"
MS. SCHRADER agreed that would certainly be the ideal.
REPRESENTATIVE RYAN explained he used to have a air service in the
Interior, flying in miners. "And they were required to take water
in that was glacial silt and mud and so forth and turn out drinking
water standards," he said. "So pretty soon, they quit mining. And
of course I went out of business, and now I'm down here." He
speculated perhaps the environmental community should have thought
about that and left him flying in the Interior.
REPRESENTATIVE RYAN said Ms. Schrader feels HB 51 is weakening
standards. He asked, "What portion do you see that's setting a
standard, and saying this is a criteria you have to meet, rather
than leaving an arbitrary and capricious standard that DEC can
apply to anyone, under any circumstance, anytime they feel, with
whatever time limit they would like to use? What is so wrong with
setting something and saying, `Here is the time you have to
operate, here is the condition you have meet, and then we'll go on,
rather than the way it is now?"
MR. SCHRADER believed the key is flexibility. She much preferred
to see that the trained scientist and experts at the DEC have the
flexibility to consider an individual permit, a site-specific
criteria, et cetera, rather than the legislature coming in with
broad and perhaps ambiguous legislation, which she believed
deprives the DEC of the flexibility to work out the best possible
solution with individual permittees.
Number 372
REPRESENTATIVE KEMPLEN referred to a point made by Mr. Hales from
Haines regarding a background condition, where Mr. Hales mentioned
the possibility of a pre-existing mixing zone used to justify more
pollution. Representative Kemplen asked if that was something Ms.
Schrader saw as possible under this proposed legislation.
MS. SCHRADER said she shares Mr. Hales concerns with respect to the
mixing zones. "That's a very large concern of my member groups,"
she added.
Number 444
DOUGLAS MERTZ, Prince William Sound Regional Citizens Advisory
Council (PWSRCAC), came before the committee to give his testimony.
The PWSRCAC is an organization composed of municipalities,
environmental citizens and business organizations within the area
affected by the Exxon Valdez oil spill. Mr. Mertz explained, "The
Prince William Sound RCAC has some real concerns about the bill,
but its problem is that it has not been able to determine how it
fits in with its bottom line, which is, quite simply, the on-the-
ground affect of this legislation on water quality and other
concerns in Prince William Sound and the other affected areas."
MR. MERTZ noted that people had not had time to review the
committee substitute or the amendments adopted that day. He urged
that the bill be held over to allow time to analyze the bottom-line
effect. He also asked that an additional referral be requested,
either to the House Resources Committee or another committee with
a broad purview.
Number 512
MARIE SANSONE, Assistant Attorney General, Natural Resources
Section, Civil Division, Department of Law, came before the
committee to remark on the technical drafting of the bill. She
noted the department's substantive concerns were reflected in the
letter from the DEC. She explained the title of the bill says it
is an act relating to the DEC, which is a very broad title and may
not give adequate notice of the contents of the bill, in that the
contents refer mostly to regulations and permitting. "This could
be a constitutional problem and an issue that should be discussed
with the drafting attorney," Ms. Sansone advised. "When a title is
not adequate, or does not give adequate notice, it's possible that
the entire bill can be later invalidated by a court. So even
though it's a technical issue, it is very important."
MS. SANSONE stated, "Another concern we noted in the way the bill
was drafted was that the background condition section, which is
very contentious, or has a number of issues that would need to be
evaluated, that was placed into Alaska Statute 46.03.020, which
concerns the DEC's powers as a department. This material, however,
goes more to water quality regulations, so it seems to be out of
place ...." Ms. Sansone suggested the drafter of the bill might
give some attention to whether that was in the right section.
MS. SANSONE also noted concern with the term, "state bodies of
water." She referred to page 3, lines 1 and 2, of the current
committee substitute. She explained, "The issue of (indisc.)
waters for purposes of permitting or regulation can be very
contentious and subject to a great deal of litigation because the
Federal Clean Water Act covers navigable waters or waters of the
United States. Our state regulations apply to waters of the state.
So to have a proper definition is important. There is a definition
in state law, at [AS] 46.03.900(35), of waters that are state
waters. And that's something that would want to be looked at."
MS. SANSONE said another concern involved use of the terms
"hydrologic conditions" and "discharge characteristics," which
appear now on page 4, lines 17 and 22. Ms. Sansone explained, "The
phrase `hydrologic conditions' is not used in the water quality
laws all that much. The Clean Water Act, all of the federal
regulations that implement the Act, all the state regulations are
concerned with what are the physical, the chemical and the
biological characteristics of the water. Hydrologic
characteristics are only one aspect of physical characteristics.
That term normally refers to the water cycle of precipitation and
then infiltration into the ground stream flow and then evaporation.
It would not cover all the physical characteristics of the water,
and it would not cover all the characteristics that the regulatory
agencies would look to in preparing a water quality standard or
implementing it. So that we see that term as problematic."
Number 760
CHAIRMAN HODGINS noted the arrival of Representative Con Bunde, who
arrived at 11:08 a.m.
MS. SANSONE continued, "The other problem in those lines is the
term `discharge characteristics.' The discharge characteristics
could mean the wastewater discharge that's coming out of the pipe
or -- discharge is also used in the field of water regulation to
refer to stream flow. The stream flow is the discharge in the
stream. So that term could also mean, for example, the volume of
the water, the rate of flow, the characteristics of the stream, but
not the wastewater. So we felt that the term was susceptible to
two different meanings and could cause a lot of problems in
implementation." Ms. Sansone added that seemed to be a drafting
problem. She emphasized she was addressing technical and drafting
considerations rather than substantive merits.
Number 769
REPRESENTATIVE ROKEBERG said the term "hydrologic" was inserted in
the previous session's Senate bill by Senator Loren Leman, a
hydrologic engineer. Representative Rokeberg said, "I'd like to
point out that I'm pleased that the Department of Law has taken an
interest in this legislation, and I would promise you that we will
address some concerns that we're able to as the bill moves along
...."
REPRESENTATIVE ROKEBERG referred to the NPDES Permitting Program
and stated his understanding that the department is currently
pursuing that program and studying it. He noted in testimony the
committee received from the department the previous Tuesday, it was
stated that they had issued a contract for $25,000 to look at
administrative changes that would be necessary to take over the
NPDES Program.
Number 857
REPRESENTATIVE ROKEBERG stated there were concerns raised about
public input and the ability to speak to this bill. He said
basically, with very few changes, the bill was the same as HB 342,
which passed the legislature last session. He expressed pleasure
that on its reintroduction, the bill had generated statewide
interest from all segments of industry, the public and the
environmental community. He believed this was an important issue.
Neither he nor Representative Kelly, as sponsors, wanted to
jeopardize the quality of Alaska's water. He stated, "The
intention of this bill, Mr. Chairman, is to bring the balance to
the application of federal and state standards to both the public
and businesses in the state that are endeavoring to do business.
We need more a level of certainty in what we do up here, and there
seems to be an ongoing level of confusion and inability on the part
of our paid-for and hardworking bureaucracy, but they just don't
seem to be getting their act together." Representative Rokeberg
said the legislature is the policy-making body of the state and
represented the people. He believed ad hoc small groups and legal
defense funds should not be making public policy in this state.
Number 945
REPRESENTATIVE ROKEBERG made a motion to move the committee
substitute for HB 51.
REPRESENTATIVE KEMPLEN objected and said there were a couple of
fiscal notes.
REPRESENTATIVE ROKEBERG modified his motion by adding the two
fiscal notes as they were. He believed the House Finance Committee
would be an adequate forum, although that day's testimony warranted
the removal of some $3.2 million as far as the NPDES permit was
concerned. "I'll leave that to the will of the committee," he
stated, indicating he did not mind moving it as-is.
Number 987
REPRESENTATIVE KEMPLEN referred to that day's testimony, which had
produced serious concerns in his mind that the committee was
perhaps moving forward too quickly. People had not had an adequate
opportunity to review the amendments or the committee substitute.
Representative Kemplen indicated concern that the people of Alaska
were not getting adequate notice of the proposed changes.
REPRESENTATIVE KEMPLEN believed the issues being raised are
significant. He stated, "In particular, the one about the
background condition still produces uncertainty as to whether or
not that it is an appropriate public policy. The item of the 90-
days' review certainly appears to add more paperwork to the
bureaucracy ...." Representative Kemplen believed the intent of
the proposed legislation was admirable. "We do need to Alaskanize
our water quality regulations," he said. "It doesn't make sense to
me, when we have glacial silt, to be, you know, producing
absolutely clean water at the end of some sort of production or
manufacturing or mining process." Representative Kemplen referred
to the Red Dog Mine and said he saw no reason why that particular
industry needs to clean up that water, when the natural condition
is, to a great extent, already polluted. He stated his hope that
the committee would hold the bill for further discussion so those
concerns could be met.
Number 1143
REPRESENTATIVE ROKEBERG pointed out that the committee process, in
large part, should overcome some of the concerns suggested by
Representative Kemplen. "There will be more than adequate
opportunity for the public to testify," he said. He noted there
was more than 45 minutes left in that meeting and that there had
been previous hearings. He said there was no intention to shut the
public out.
REPRESENTATIVE ROKEBERG thanked the DEC for responding in writing
to the committee's requests. Unfortunately, the committee had not
received the department's response in adequate time to be able to
integrate it in the testimony that day.
Number 1247
REPRESENTATIVE RYAN said he had an objection to the fiscal note
from the Habitat Division of the Department of Fish and Game. If
he recalled correctly, in the last two budget cycles that
particular division had "almost been put away, but it seemed to
have more lives than a cat." He did not see any justification for
the amount of money they were asking for a biologist, $188,000.
Representative Ryan said he would like to move that the committee
make a zero fiscal note and send that forward with the bill.
REPRESENTATIVE BUNDE pointed out there was already a motion on the
floor.
REPRESENTATIVE RYAN said he would amend the motion to make the
fiscal note from the Habitat Division a zero fiscal note.
REPRESENTATIVE OGAN said he believed the mover of the first motion
would have withdraw his motion in order to take up Representative
Ryan's motion.
CHAIRMAN HODGINS said the committee had to deal with the first
motion. If it was defeated, then Representative Ryan could make
his motion. He noted that Representative Rokeberg had said there
would be close scrutiny of the fiscal notes in the House Finance
Committee.
REPRESENTATIVE RYAN withdrew his motion for a zero fiscal note.
CHAIRMAN HODGINS noted the motion before the committee to move CSHB
51, as amended, out of committee. He asked if there were any
objections.
REPRESENTATIVE KEMPLEN objected.
Number 1317
A roll call vote was taken. Representatives Hodgins, Bunde,
Rokeberg, Ryan and Ogan voted in favor of moving the bill.
Representative Kemplen voted against moving the bill. So CSHB
51(L&C) moved out of the House Special Committee on Oil and Gas.
ADJOURNMENT
Number 1362
CHAIRMAN HODGINS adjourned the House Special Committee on Oil and
Gas meeting at 11:24 a.m.
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