Legislature(1993 - 1994)
03/28/1994 08:15 AM House RES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
March 28, 1994
8:15 a.m.
MEMBERS PRESENT
Representative Bill Williams, Chairman
Representative Bill Hudson, Vice Chairman
Representative Con Bunde
Representative Pat Carney
Representative John Davies
Representative David Finkelstein
Representative Joe Green
Representative Jeannette James
Representative Eldon Mulder
MEMBERS ABSENT
None
OTHER LEGISLATORS PRESENT
Representative Al Vezey
COMMITTEE CALENDAR
*HB 286 "An Act relating to certain activities within
rivers, lakes, and streams that are important for
spawning, rearing, or migration of anadromous
fish."
HEARD AND HELD IN COMMITTEE
HB 436 "An Act prohibiting the Department of
Environmental Conservation from adopting or
enforcing a regulation that establishes an ambient
air quality standard or emission standard that is
more stringent than a corresponding federal
standard; and providing for an effective date."
HEARD AND HELD IN COMMITTEE
* (First Public Hearing)
WITNESS REGISTER
REPRESENTATIVE PAT CARNEY
Alaska State Legislature
State Capitol, Room 434
Juneau, Alaska 99801-1182
Phone: 465-2186
POSITION STATEMENT: Prime Sponsor HB 286
FRANK RUE, Director
Division of Habitat and Restoration
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Phone: 465-4105
POSITION STATEMENT: Opposed HB 286
TED SMITH
P.O. Box 1026
Willow, Alaska 99688
Phone: 495-6637
POSITION STATEMENT: Supported HB 286
DAVE CRUZ
P.O. Box 2027
Wasilla, Alaska 99645
Phone: 746-3144
POSITION STATEMENT: Supported HB 286
PAUL HEADLEE, Water Resources Specialist
Tanana Chiefs Conference
122 1st Avenue
Fairbanks, Alaska 99701
Phone: 452-8251
POSITION STATEMENT: Opposed HB 286
DORN HAWXHURST, Representative
Cordova District Fishermen United
P.O. Box 939
Cordova, Alaska 99574
Phone: 424-3447
POSITION STATEMENT: Opposed HB 286
DALE BONDURANT
HC1 Box 1197
Soldotna, Alaska 99669
Phone: 262-1691
POSITION STATEMENT: Opposed HB 286
BEN ELLIS, Executive Director
Kenai River Sport Fishing
Chairman, Habitat Protection Advisory Council
P.O. Box 1228
Soldotna, Alaska 99669
Phone: 262-8588
POSITION STATEMENT: Opposed HB 286
GREG BELL
2048 Esquire Drive
Anchorage, Alaska 99517
Phone: 563-3436
POSITION STATEMENT: Supported HB 286
KATE TROLL, Executive Director
Southeast Alaska Seiners Association
Executive Committee Member, United Fishermen of Alaska
9226 Long Run
Juneau, Alaska 99801
Phone: 789-5117
POSITION STATEMENT: Opposed HB 286
JOHN GEORGE, Representative
Alaska Outdoor Council
9515 Moraine Way
Juneau, Alaska 99801
Phone: 789-0172
POSITION STATEMENT: Opposed HB 286
CARL LONDON
6231 Old Seward Highway
Anchorage, Alaska 99518
Phone: 276-0560
POSITION STATEMENT: Supported HB 286
PAUL MCLAUGHLIN
4916 Castle Court
Anchorage, Alaska 99508
Phone: 333-5485
POSITION STATEMENT: Supported HB 286
JERRY MCCUNE
United Fisherman of Alaska
211 Fourth Street, #211
Juneau, Alaska 99801
Phone: 586-2820
POSITION STATEMENT: Opposed HB 286
TROY REINHART, Executive Director
Alaska Forest Association
111 Stedman, #200
Ketchikan, Alaska 99901
Phone: 225-6114
POSITION STATEMENT: Supported HB 286
JOE WEHRMAN
Konkor Forest Products
3527 Vassar Drive
Anchorage, Alaska 99508
Phone: 276-6852
POSITION STATEMENT: Supported HB 286
JEFF PARKER, Representative
Anchorage Fish and Game Advisory Committee
1207 Hyder
Anchorage, Alaska 99507
Phone: 274-5418
POSITION STATEMENT: Opposed HB 286
JOSEPH EASAW, JR., Aide
Representative Al Vezey
State Capitol, Room 102
Juneau, Alaska 99801-1182
Phone: 465-3719
POSITION STATEMENT: Provided sponsor statement on HB 436
MICHAEL MENGE, Director
Division of Environmental Quality
Department of Environmental Conservation
410 Willoughby Ave., Suite 105
Juneau, Alaska 99801-1795
Phone: 465-5260
POSITION STATEMENT: Opposed HB 436
LEN VERRELLI, Program Manager
Air Quality Management Section
Department of Environmental Conservation
410 Willoughby Ave., Suite 105
Juneau, Alaska 99801-1795
Phone: 465-5100
POSITION STATEMENT: Opposed HB 436
STAN STEPHENS, President
Prince William Sound Regional Citizens Advisory Council
P.O. Box 1297
Valdez, Alaska 99686
Phone: 835-4731
POSITION STATEMENT: Opposed HB 436
MEAD TREADWELL, Deputy Commissioner
Department of Environmental Conservation
410 Willoughby Ave., Suite 105
Juneau, Alaska 99801-1795
Phone: 465-5050
POSITION STATEMENT: Opposed HB 436
RICK LAUBER, Representative
Pacific Seafood Processors Association
321 Highland Drive
Juneau, Alaska 99801
Phone: 586-6366
POSITION STATEMENT: No position on HB 436
PREVIOUS ACTION
BILL: HB 286
SHORT TITLE: ACTIVITIES IN ANADROMOUS FISH STREAMS
SPONSOR(S): REPRESENTATIVE(S) CARNEY
JRN-DATE JRN-PG ACTION
04/20/93 1355 (H) READ THE FIRST TIME/REFERRAL(S)
04/20/93 1355 (H) FISHERIES,RESOURCES,JUDICIARY,
FINANCE
03/21/94 2915 (H) FSH REFERRAL WAIVED
03/21/94 2916 (H) REFERRED TO RESOURCES
03/28/94 (H) RES AT 08:15 AM CAPITOL 124
BILL: HB 436
SHORT TITLE: STRICTNESS OF AIR QUALITY REGS
SPONSOR(S): REPRESENTATIVE(S) VEZEY,Sitton
JRN-DATE JRN-PG ACTION
02/04/94 2255 (H) READ THE FIRST TIME/REFERRAL(S)
02/04/94 2255 (H) STATE AFFAIRS, RESOURCES
02/07/94 2291 (H) COSPONSOR(S): SITTON
02/24/94 2519 (H) STA RPT 2DP 3NR
02/24/94 2519 (H) DP: VEZEY, OLBERG
02/24/94 2519 (H) NR: KOTT, SANDERS, G.DAVIS
02/24/94 2519 (H) -ZERO FISCAL NOTE (DEC) 2/24/94
02/24/94 2519 (H) REFERRED TO RESOURCES
02/24/94 (H) STA AT 08:00 AM CAPITOL 102
02/24/94 (H) MINUTE(STA)
03/05/94 (H) MINUTE(ECO)
03/28/94 (H) RES AT 08:15 AM CAPITOL 124
ACTION NARRATIVE
TAPE 94-43, SIDE A
Number 000
The House Resources Committee was called to order by
Chairman Bill Williams at 8:21 a.m. Members present at the
call to order were Representatives Williams, Hudson, Bunde,
Carney, Davies, Finkelstein and Green. Members absent were
Representatives James and Mulder.
CHAIRMAN BILL WILLIAMS announced there is a quorum present.
He stated the meeting is on teleconference with Anchorage,
Cordova, Fairbanks, Mat-Su, Sitka, Kenai/Soldotna and
Valdez.
HB 286 - Activities In Anadromous Fish Streams
REPRESENTATIVE PAT CARNEY, PRIME SPONSOR, stated HB 286
addresses two issues: 1) it authorizes the commissioner of
the Alaska Department of Fish and Game (ADF&G) to exempt
certain portions of anadromous fish streams that are used
for crossings; and 2) it provides a lesser penalty for
violations of current statute (AS 16.05.870 -16.05.895) that
were unintentionally committed, such as a piece of equipment
falling through ice, as long as the violation did not act
recklessly.
REPRESENTATIVE CARNEY said according to Article VIII,
Section 1 of Alaska's Constitution, the state's policy is to
"encourage...the development of its resources by making them
available for maximum use consistent with the public
interest." This legislation attempts to correct an inequity
in current statute. An anadromous stream cannot be crossed
if there is even a possibility of fish production. He
stated this would seem to favor one resource, fish, over
another such as timber, even when it can be shown that
spawning grounds will not be harmed nor fish stocks reduced
as a result of an attempted stream crossing with a piece of
equipment or a vehicle.
REPRESENTATIVE CARNEY stated while it is important to
protect anadromous streams from damage by recreational
vehicles or equipment used for logging, flexibility must be
permitted for the department to allow for unintentional
violations and to exempt certain portions of streams, where
there is no possibility fish stocks will be harmed.
(CHAIRMAN WILLIAMS noted for the record that REPRESENTATIVES
JAMES and MULDER had joined the committee at 8:25 a.m.)
REPRESENTATIVE DAVID FINKELSTEIN asked for an explanation of
the difference between the program which ADF&G currently
uses and what HB 286 provides. He wondered if under HB 286,
a permit will not be required.
REPRESENTATIVE CARNEY responded a major difference is the
penalty for a violation is reduced and HB 286 makes it
possible for the commissioner to create certain crossings.
He felt HB 286 takes a little control away from the
commissioner. He said ADF&G issues permits but only during
a window of opportunity when the department knows there are
no eggs in a stream. He wondered how much damage one piece
of machinery causes when crossing one stream.
REPRESENTATIVE FINKELSTEIN said he is attempting to
understand the difference between Section 1 in HB 286 and
existing law. He stated current law says the department has
the power to provide general permits, etc. He wondered what
power Section 1 gives to the department they do not already
have.
REPRESENTATIVE CARNEY said he cannot answer the question.
REPRESENTATIVE JOHN DAVIES asked if the reduction of penalty
applies to all violations or just inadvertent violations.
REPRESENTATIVE CARNEY replied the reduction applies to all
violations.
REPRESENTATIVE DAVIES stated if HB 286 passes making it
easier to cross streams legally, why is there a need to also
reduce the penalties.
REPRESENTATIVE CARNEY responded HB 286 requires the
department to prove it is a willful crossing.
REPRESENTATIVE DAVIES thought Representative Carney had said
even in the case of a willful crossing, the penalty will be
reduced.
REPRESENTATIVE CARNEY said that is correct.
Number 130
FRANK RUE, DIRECTOR, DIVISION OF HABITAT AND RESTORATION,
(ADF&G), stated the packet in committee member's folders
contains a one page analysis of what HB 286 does and does
not do, a one page excerpt of a review which ADF&G did about
the department's permitting program, a one page permit
summary enabling committee members to see how many permits
are issued, timing, etc., and examples of general permits
from each region. He showed committee members the
anadromous stream atlas and a catalog of anadromous streams.
He stressed that under statute, the department has to, by
regulation, go through a public process identifying those
streams which have anadromous fish in them which then go
into the atlas and catalog, resulting in people being aware
of where the statute does and does not apply.
MR. RUE said under present law, there are two ways a person
can cross an anadromous stream. An individual permit can be
applied for at one of ADF&G's offices and ADF&G then issues
the person an individual permit to cross a stream for
whatever particular project the permit is for. He said the
department issued 1,198 Title 16 permits last year, it took
the department an average of 18 days to issue the permits,
and only three permits were denied. He pointed out those
facts emphasize that the department is trying to work with
people, allowing them to cross the streams, while also
maintaining fish in the streams.
MR. RUE, referring to the review, said people are generally
pleased with the permit process as long as the department
follows three principles: 1) ADF&G knows what is going on
in the streams; 2) ADF&G understands the permittee's
objectives and is clear that the department is trying to
accommodate their interest in going across a stream; and 3)
ADF&G is flexible. He said when ADF&G does those three
things, they are usually successful.
Number 187
MR. RUE explained there are general permits around the state
which are areas where ADF&G can authorize a crossing for
anyone in the public without application. He stated ADF&G
advertises those crossings to make people aware of them.
ADF&G does occasionally condition those permits if there is
a sensitive area involved such as a weight limit. He said
HB 286 will basically end the department's general
permitting process. Instead, ADF&G will have to exempt an
area totally from regulation. He felt the bill is an all or
nothing decision. He added that once an area is exempted,
the department cannot apply conditions such as weight
limits, not cutting the banks, or if the banks are cut,
restoring them, etc. Mr. Rue said HB 286 will also change
the standard of proof and the penalties for different
violations.
MR. RUE said under HB 286, ADF&G will exempt an area from
regulation by petition--an individual can petition ADF&G to
remove a part of a stream to make it a ford. He stated when
ADF&G writes regulations for the catalog every year, the
general public is asked if there are streams or segments of
streams which ought to be removed from the catalog. Every
year, the department does find a few streams not significant
for fish and they are removed from the catalog.
Number 226
MR. RUE felt HB 286 will make it difficult for ADF&G to put
in crossings or fords because the department will not be
able to condition them. He said it will become more
expensive because everything will be done by regulation, as
opposed to having an administrative general permit. Appeals
will be handled by hearing officers costing anywhere from
$5,000 to $15,000. People who are unhappy about ADF&G
denying a petition can appeal it. Likewise, people unhappy
that ADF&G agreed to a petition can appeal it. He explained
there will be a small increase in costs in the requirement
for additional training for enforcing the different
statutory penalty provisions.
MR. RUE stressed ADF&G does not object to the idea of trying
to get fords. He said ADF&G prefers the current process of
establishing fords by general permit where appropriate
conditions can be applied. ADF&G does accept the fact that
if one is going to cross or build a structure, some impact
will be created but they are just trying to keep that impact
at a minimum if possible and still achieve the objectives of
the individual.
Number 271
REPRESENTATIVE JOE GREEN agreed that ADF&G has made great
strides in cooperating with industry while protecting fish
and wildlife. He expressed concern that if legislation such
as HB 286 is not passed, how will ADF&G avoid a situation
like what happened to Mr. Bell, an individual who got the
permit, did what the permit said, fell through the ice and
then got fined $2,000.
MR. RUE stressed ADF&G does not cite someone who
accidentally falls through the ice while following the
department's permit. He said Mr. Bell waited until the end
of a three year timber sale to get a permit. The department
got him a permit in four days, but he was getting toward the
end of the window to get across on the ice. He went across
the ice, broke through, kept going, and even though he had
been told many times not to drive through the area on the
gravel, he went ahead and did that on bad advice from
another agency, contrary to what he had been told by ADF&G.
Mr. Rue stated after that, ADF&G then worked with Mr. Bell
to try and get him across in another area using landing
mats to decrease the pressure.
MR. RUE pointed out there is an emergency provision in
present statute which allows people to proceed with a
project if there is an emergency involved and inform ADF&G
about it later. ADF&G also issues verbal permits on the
telephone if there is a problem. He said if the department
is frivolous about citing people, that is why there are
courts and the courts will determine the department is
frivolous.
Number 316
REPRESENTATIVE GREEN clarified if a person is acting in good
faith in what ADF&G has permitted him to do and has an
inadvertent problem, the person will not be cited.
MR. RUE said the person will not be cited by ADF&G. He
added Fish and Wildlife Protection could try and get the
attorney general's office to take a case without asking
ADF&G.
REPRESENTATIVE CON BUNDE observed that this is another
example which gives strength to moving protection back into
the department.
REPRESENTATIVE CARNEY felt it was significant that Mr. Bell
was required to get an attorney, go to court and was given
probation, yet the error in judgment which Mr. Bell made was
to turn around and go back through the stream. He wondered
what other options Mr. Bell had.
REPRESENTATIVE JEANNETTE JAMES asked if a person has a
permit to cross a stream, is doing so according to the rules
and falls through, what are that person's options.
MR. RUE stated he should rescue his life and equipment and
then contact ADF&G about what he should do next.
Number 350
REPRESENTATIVE JAMES asked if in Section 1, language could
be added saying it is a defense if the violation was
innocent and the person responded in a reasonable way to get
his equipment out of the stream. If a person finds
themselves in a stream, how do they get out with existing
law and what is the penalty.
MR. RUE responded if a person has a permit from ADF&G to go
through a stream, the person is complying with the permit
and an accident happens, it is not a citable offense. He
said ADF&G does not have many violations each year.
Number 403
REPRESENTATIVE FINKELSTEIN asked what the existing penalties
are for violations.
MR. RUE replied currently, the maximum penalty a person can
receive is a Class A misdemeanor which is different for
individuals and corporations. He said the penalty for a
corporation is up to $200,000 and for an individual it is up
to $5,000 or one year in jail. He emphasized the court has
never imposed that level of penalty.
REPRESENTATIVE FINKELSTEIN recalled Mr. Rue had said of the
1,200 permits given out, approximately three were denied.
MR. RUE said that is correct.
REPRESENTATIVE FINKELSTEIN asked of the others, how many of
them received modification.
MR. RUE replied ADF&G's favorite kind of permit is one the
department approves as designed or proposed. He said ADF&G
does condition permits, most often during construction
seasons. He explained there is usually a six weeks or two
month window when the juvenile fish have left the gravel,
before the adults return and begin to spawn and people can
get into the stream and construct things not causing major
problems. He said not every contractor knows all of the
details of any particular system or what its sensitivities
are, so ADF&G tries to work with the person on those types
of things.
REPRESENTATIVE FINKELSTEIN asked of those 1,200 permits in
an average year, how many result in going to court for
enforcement.
MR. RUE replied maybe three.
Number 464
REPRESENTATIVE BILL HUDSON asked how many of the permits are
small.
MR. RUE said he is not sure but thought the small permits
are not a big percentage.
REPRESENTATIVE HUDSON asked if he wanted a permit, what
process would he follow.
MR. RUE responded it would depend on where he lives. A
person living in the Fairbanks area would go to the
Fairbanks ADF&G office and get a Title 16 application form.
If a person lives in the coastal zone, that person will also
complete a coastal project questionnaire which has the Title
16 form attached.
REPRESENTATIVE HUDSON asked if a person has a piece of
property, would that person be able to call an ADF&G office
and get verbal approval to make a crossing for a temporary
operation.
MR. RUE said it would depend on the situation. If the
situation was an emergency, ADF&G will give a verbal
approval. He stressed ADF&G prefers not to give verbal
permits, especially if the department has time to look at
the actual plan.
REPRESENTATIVE JAMES said in considering the permit
application for crossing streams, is the amount of usage
which the crossing might have ever considered in determining
the possibility of a permanent crossing.
MR. RUE said the department does. For example, in
Fairbanks, ADF&G works with the Department of Transportation
(DOT) and people in the Nome area to identify those places
people generally use and a general permit is issued. He
gave other examples.
Number 543
REPRESENTATIVE JAMES felt a permanent crossing is the wisest
decision because if there is danger to fish, a permanent
structure will be less damaging than if individuals get
permits to cross time after time.
MR. RUE agreed, but said many times the department faces the
problem of financing. ADF&G likes to work with local
governments to determine capital projects to build permanent
structures and/or DOT where there is enough crossing going
on.
REPRESENTATIVE CARNEY asked Mr. Rue to comment on how many
potential salmon eggs will be damaged by a 40 foot ford.
MR. RUE replied it would depend on how much spawning was
occurring in the area. He said if intense spawning has been
occurring, thousands and thousands of eggs will be killed,
possibly up to 100,000 eggs.
REPRESENTATIVE CARNEY asked how many salmon eggs it takes to
produce one salmon.
MR. RUE responded it depends on the species but he estimated
100 to 1,000.
REPRESENTATIVE CARNEY asked what the penalty is if a person
crosses a salmon stream with a four wheeler or a farm
tractor without a permit.
MR. RUE stated the penalty can be up to a full Class A
misdemeanor which is $5,000 and up to one year in jail. He
stressed he has never seen that type of penalty imposed.
Number 620
CHAIRMAN WILLIAMS asked Mr. Rue to explain the fiscal note.
MR. RUE stated it is difficult to estimate, but ADF&G is
assuming they will have five petitions and three appeals
annually to remove sections of stream from regulation. The
department's experience with hearing officers, which will be
required to deal with the petitions, will cost from $5,000
to $15,000 each. He said most of the costs will come from
any appeals of petitions which ADF&G denies or approves
which someone is unhappy with. He noted there will also be
some increase costs in training.
CHAIRMAN WILLIAMS said he did not understand where the
increases will come from.
MR. RUE stated the process to create a ford is now one of
exempting a chunk of stream formally, by regulation from the
statute. With HB 286, a section of stream is no longer
subject to statute and because of that, ADF&G will need to
use the Administrative Procedures Act to establish that
regulation. That decision can be appealed through the
Administrative Procedures Act which means a hearing officer
must be used costing between $5,000 to $15,000 each,
depending on how significant the appeal is. It is a very
formal way to exempt sections of streams for fords as
opposed to the present process of general permits. It is a
regulatory exemption.
TAPE 94-43, SIDE B
Number 000
REPRESENTATIVE JAMES referring to the Bell case, asked if
Mr. Bell would have come to ADF&G after falling through the
ice and bringing his vehicle back, what would have been his
chances of getting a permit to continue to cross where he
was, assuming the ice was not going to refreeze.
MR. RUE responded ADF&G told him they would be willing to
work with him to either move upstream or downstream where
the ice was firm or use something like landing mats which
spreads the pressure from the vehicle. He said there was a
case in Haines where a logging company had to cross the
Chilkat River when the coho were spawning, as the company
would have had to leave their equipment on the other side
for an entire year if they were going to use the ice. ADF&G
determined that was not reasonable. In exchange, the
company gave ADF&G two days of backhoe time to work on
rearing ponds near the Haines airport.
REPRESENTATIVE CARNEY asked how deep the water was where Mr.
Bell fell through.
MR. RUE said he would have to look at the records to answer
the question.
REPRESENTATIVE CARNEY wondered if there were salmon eggs
present when Mr. Bell fell through.
MR. RUE replied he would have to check with the staff who
dealt with that issue.
Number 045
REPRESENTATIVE GREEN noted there are many different accounts
of the Greg Bell case and asked how many such cases does
ADF&G have where people are trying to comply with their
permit but for some reason, usually nature, result in a
problem.
MR. RUE stated there are very few situations where there is
a violation. Usually ADF&G issues a notice of violation and
asks that the problem be fixed. As mentioned earlier, an
accident is not a citable offense. He estimated there are
less than five citations a year which go to court.
REPRESENTATIVE JAMES asked how the violations are
determined.
MR. RUE replied usually the general public complains to
ADF&G.
REPRESENTATIVE JAMES clarified it is possible there are more
violations which the department is unaware of.
MR. RUE said that is correct.
TED SMITH, WILLOW, testified via teleconference and stated
there are two points which need to be mentioned. He said
ADF&G does not use the permit system very often and stressed
HB 286 would not be before the committee if the permit
system had worked correctly. Mr. Bell went through the
individual permit process, but a more rational approach
would have been for ADF&G and the Department of Natural
Resources (DNR) to work together and get a general permit in
advance. He said this particular location is on a slough
and had been used for prior logging. He felt it was
irrational to believe that every inch of every anadromous
water is equally valuable.
MR. SMITH stated HB 286 will provide an element of intent.
He said AS 16.05.900 presently says a person who violates AS
16.05.870 - 16.05.895 is guilty of a class A misdemeanor.
This bill will provide an element of intent and provide for
a lesser citation in situations where there is no willful
violation of the law.
Number 157
DAVE CRUZ, WASILLA, testified via teleconference and stated
his logging company has had similar problems of ice breaking
and being caught in precarious conditions with equipment.
He pointed out that one pound per square inch exerted by a
bulldozer, if it is just graveling across a ford, is less
than that of a person walking along the edge of a river. He
felt Mr. Rue's assessment of the damage of heavy equipment
is incorrect. He said many of these crossings date back to
the gold rush days and added there are not many roads but
there are many trails. He stated these crossings serve as a
highway in the winter and there is a need to keep them open
for the benefit of the public. He felt changes are needed.
PAUL HEADLEE, WATER RESOURCES SPECIALIST, TANANA CHIEFS
CONFERENCE (TCC), testified via teleconference and stated
TCC needs clarification why upland resource utilization,
which is not very well defined, will be exempt from
subsections (b) -(d). He said these subsections are the
heart and soul of the statute and that heart and soul is
(indiscernible) in anadromous streams (indiscernible)
salmon. He pointed out that subsections (b) - (d) include a
notification process, as well as a plan for specifications
for the activity.
MR. HEADLEE felt this process works very well currently. If
the department determines that plans are insufficient, the
applicant is notified and can either submit additional plans
or request a hearing. TCC is not asking that any activity
be restricted but rather, just allow the activity to go
through the necessary process and be looked at objectively,
so irreparable mistakes are not made. He felt the state
cannot afford any mistakes at a time when it is trying to
rebuild a very depressed chum salmon stock. He said TCC is
opposed to HB 286.
Number 223
DORN HAWXHURST, REPRESENTATIVE, CORDOVA DISTRICT FISHERMEN
UNITED (CDFU) testified via teleconference and expressed
opposition to HB 286 on behalf of CDFU. CDFU is opposed to
activities which adversely affect spawning, rearing, or
migration of anadromous fish. She said this proposed
legislation dilutes existing law and makes it easier for
individuals and government agencies to interfere with
rivers, lakes and streams. The proposed legislation seems
to penalize only those who willfully violate the law instead
of the current law, which penalizes those who cause harm to
these areas whether intentionally, knowingly, recklessly, or
otherwise. She stated HB 286 makes ignorance an acceptable
excuse.
MS. HAWXHURST stated in regard to Section 1, the
commissioner already does have the power to provide permits
and this permitting process adequately serves the public.
She felt there is no reason for any additional blanket
exemptions. She stressed existing law is not an example of
resource favoritism--it is an example of responsible
resource management. She urged members to reject HB 286 and
leave the existing law alone.
Number 247
DALE BONDURANT, SOLDOTNA, testified via teleconference and
expressed opposition to HB 286. He felt the intent of the
bill is to lower the responsibility and liability for
damages to the state's fishery habitat. He stated either
ADF&G must be given a strong tool to protect the habitat or
it should be admitted that the state has no more concern
shown in other states, where there are declines and in some
instances, a complete loss of fish protection. In regard to
multiple use of the state's resources, he thought there is a
need to expand the control of potential damage practices and
more strictly scrutinizing any exemptions of that control.
In addition to the concern about how many salmon eggs which
can be potentially damaged, he felt turbidity is an
important factor in the protection of the raising of salmon.
MR. BONDURANT stated anyone can say they did not believe any
damage could be done and use it as an excuse. He felt
people need to be responsible for their mistakes, whether
they are intently or accidental. He thought protection of
fish and habitat remain the full responsibility of ADF&G.
He strongly supports ADF&G's position on HB 286.
Number 290
BEN ELLIS, EXECUTIVE DIRECTOR, KENAI RIVER SPORT FISHING,
AND CHAIRMAN, HABITAT PROTECTION ADVISORY COUNCIL, testified
via teleconference and stated his comments are also
supported by the Alaska Sport Fishing Association. He
expressed opposition of HB 286. He said while it seems
Representative Carney's intent is to streamline the state's
regulatory process without putting anadromous fish habitat
at risk, he believes that passage of HB 286 will lead to the
harm of critical fish habitat. HB 286 will reduce the
protection of anadromous fish and will allow anyone who
wants to ford an anadromous spring without restrictions, to
submit a petition to do so, regardless of how important the
area is for the protection of anadromous fish. He said the
department can deny petitions but department costs will
likely increase substantially because administrative actions
(indiscernible) that will be possible under this change.
MR. ELLIS felt the petition amendment is unnecessary because
the department issues hundreds of permits to cross
anadromous streams, including fords, annually. He stated in
1993, more than 99 percent of all persons who applied for
permits received their permit within an average of 17 days.
The department has also issued a number of general permits
to the public for (indiscernible) for a large number of
streams and portions of state game refuges and critical
habitat areas using recreational vehicles and highway
vehicles. He pointed out there is an existing process
whereby citizens can petition the commissioner to remove a
water body from the anadromous water catalog. The
department receives petitions from the public and if the
water body or a portion is determined not to be important
for anadromous fish, the department removes it from the
catalog. ADF&G annually removes a number of these water
bodies. He stressed there is no real problem in attaining a
permit to cross a specific anadromous water body.
MR. ELLIS stated the reduction of penalties and the
increased burden of prosecution will make the Anadromous
Fish Act less of a deterrent to violators, who under the
current law, can face a potential $5,000 fine and up to one
year in jail for working in an anadromous stream without an
ADF&G approval. He said though the possible intent of this
change may be to provide more assurances that the rights of
a violator be protected, the net effect will likely be to
increase the costs of investigations, decrease the deterrent
effect of the law, and even further reduce the small number
of cases prosecuted.
Number 338
GREG BELL, ANCHORAGE, testified via teleconference and
pointed out in regard to his case, a permit had already been
issued on the Susitna Crossing to the Division of Forestry.
He said it was his first process and he had told ADF&G at
the time, he (indiscernible) in the Title 16 permitting
process. He noted he had been in business for 15 years and
had never had a violation. He got a permit and then
determined another permit was required. He said Mr. Rue had
indicated that he had waited until the last minute to get
his permit. He explained the snow was seven feet deep for
two years and that is why he could not get into the sale.
Nature is a big factor and that is why there is a need to
have as big of a window as possible.
MR. BELL stated the permitting process is cumbersome. He
said when he went to court, he received a bigger fine than
drug dealers or driving while intoxicated offenders receive.
He explained a month after he fell through the ice there was
no water in that spot. He said he did receive an open water
crossing permit. When that permit became valid, the water
had risen eight feet. He went out with ADF&G the next day
along with a fish biologist and they looked at the area
upstream and downstream. There was a place to cross but one
of the persons said no, so they left. He stressed the
process is not easy and added that most people do not have
as much energy as he does in determining how to change the
process.
Number 390
MR. BELL said he had asked a fish biologist what damage a
fish stream crossing does to the fish stock and that
biologist replied very little, if any. He felt what
happened to him was unjust and that is why this legislation
is before the committee. He stated HB 286 gives more
control to the commissioner. He thought ADF&G has something
against the timber industry.
Number 410
KATE TROLL, EXECUTIVE DIRECTOR, SOUTHEAST ALASKA SEINERS
ASSOCIATION, AND EXECUTIVE COMMITTEE MEMBER, UNITED
FISHERMEN OF ALASKA, said she is one of few people still
around who was involved in the negotiations of the state
Forest Practices Act which passed the legislature in 1991.
In that process, the fishing industry recognized there were
other uses of the forest and there would be a loss of
habitat but also there was a need to make accommodations for
the economic interests of the timber industry. That was
accomplished in various ways and it was a process which
recognized the give and take, and cooperation of both
industries.
MS. TROLL stated in going through that process, those
involved looked at what was established and how ADF&G
currently reviews their anadromous catalog and how they
exempt streams from that process. The key point accepted
throughout the process was that Title 16, as it relates to
stream crossings, works. She expressed opposition to HB 286
because it begins to erode that process and begins to back
away all the give and take agreements which were recognized.
The bill also says the process is broken and earlier
testimony says just the opposite. The process is working.
MS. TROLL told committee members they not only need to
recognize that the permit process is working, but to also
recognize there is a need for the process of the entire
Forest Practices Act and the agreement to continue to work.
She expressed opposition to HB 286 also based on the fact
that Title 16 is used to defend the state's position on
PACFISH and other federal rules coming into play. She felt
it was prudent and incumbent upon the legislature to
maintain those laws which are working for the state as a
defense against other federal initiatives. She felt it is
important to be consistent.
MS. TROLL pointed out in many other arenas of the
legislature currently, there is a desire to get tougher on
violations and crime including the fishing industry. She
felt it is unfair to make exceptions for another industry--
an industry which could potentially harm another economic
interest. She stated HB 286 addresses a law which is not
broken and to act on it, will undermine all the good put
forward in protecting Title 16 and making it work
reasonably, and standing behind the Forest Practices Act in
protecting the state's rights to manage for the balance of
the state's resources. She urged committee members to
reject HB 286.
Number 532
JOHN GEORGE, REPRESENTATIVE, ALASKA OUTDOOR COUNCIL (AOC),
expressed opposition to HB 286. He said although AOC
fights for access to areas for hunting and fishing, crossing
anadromous streams with four wheel drive vehicles or
bulldozers adversely impacts AOC's interests. He stated
testimony has verified that permits are issued on a regular
basis, in a timely manner. There has been no indication
that the permits are complicated or expensive to get. He
noted other testimony indicated the fines can be relatively
substantial. He felt there is a need for substantial
penalties to apply in the most egregious cases.
MR. GEORGE said the system does work--it allows substantial
penalties where they are appropriate and allows minor or no
penalties where appropriate and people get permits. He
asked what better system is there.
Number 575
CARL LONDON, ANCHORAGE, testified teleconference and stated
the public owns fish yet there is no value put on the fish.
He felt the state should begin putting a value on the fish
harvested and let the harvester pay for the fish taken away
from the public. He said the timber industry has to pay for
its harvest, so the fishermen should pay likewise. In
regard to the government having less revenue from the oil
tax which will require a cut in the state's budget, he
suggested the state should cut agencies' budgets that
proliferate with unnecessary regulations such as
(indiscernible). He suggested cutting their budgets and
letting them reorganize under another agency, requiring them
to become more responsive to the constitutional rights of
the individual.
MR. LONDON stated the average of 17 days to get a permit
means 17 working days, which is almost a month. He said the
constitutional right of resources being equal is
(indiscernible) of the fishing industry at this time and
totally ignores the rights of access to crossings and to
resources such as timber or mineral rights. He encouraged
scrutiny of ADF&G which has gone amok with a power grab
(indiscernible) the individuals who support that system.
Number 631
PAUL MCLAUGHLIN, ANCHORAGE, testified via teleconference and
expressed support of HB 286. He said the bill will give
more leniency for business people. He stated it has become
more and more difficult to remain in business over the
years, especially small businesses, because of rules and
regulations. He noted there are several examples of people
crossing the stream, referred to in the Bell case, over a
number of years and ADF&G did not do anything about it. He
pointed out there are hunters, fishers and homesteaders who
probably cross these streams 100 times more than business
people do for a small timber sale. He felt people trying to
do business in Alaska should be given a fair shake. He
wondered if anyone had evaluated how much damage is done by
a track of a vehicle crossing a stream eight feet wide as
compared to a stream several miles long.
TAPE 94-44, SIDE A
Number 000
JERRY MCCUNE, PRESIDENT, UNITED FISHERMEN OF ALASKA (UFA),
stated UFA opposes HB 286 and does not feel anything is
wrong with Title 16 as written. UFA does not agree with the
opinion that the state should accept some temporary loss of
fish habitat for the benefit of other users. He said there
has to be other compromises for putting equipment in streams
as determined by the commissioner of ADF&G. He gave
personal testimony of using the permitting process himself.
He stated the salmon eggs in streams are the fisher's bank
in the future and are the state's bank for the future. He
stressed it is difficult to put a value on salmon eggs. The
value of those eggs is the future of that stream to be able
to produce salmon. In the Prince William Sound area, there
are 926 numbered streams and working together, those streams
produce 25 million fish. He said there is room for growth
in all industries. He felt Title 16 is fine as is.
Number 040
TROY REINHART, EXECUTIVE DIRECTOR, ALASKA FOREST ASSOCIATION
(AFA), stated AFA supports HB 286 to authorize the
commissioner to designate stream crossings. He pointed out
the first line of the bill says the commissioner "may by
regulation" which does not mean he will. AFA looks at HB
286 from the standpoint of wanting to protect fish as well
as the forest products industry. He said AFA views HB 286
as an opportunity for the commissioner to designate areas
which will minimize the impacts on fish or cause no impacts
on fish, while allowing for crossings in general areas
excluded for fording. AFA also believes HB 286 will help in
enforcement actions because people will know crossings were
done through regulation. He stated the bill will not take
away ADF&G's power to issue general or specific permits nor
will the bill stop ADF&G from putting conditions on those
permits through the regulation process.
Number 058
MR. REINHART said AFA believes HB 286 is a streamline of the
present process which will continue to protect fish and
continue to make Title 16 work. He stated in regard to the
criminal penalty section, there is some question as to how
much leniency or discretion the department has once a
violation occurs. AFA believes that question can be cleared
up through negligence and wrongdoing. He said currently
there is an administrative agency going forward with
criminal prosecution and there needs to be some sort of
standard rather than just an incident occurring before a
person will go through a Class A or Class B misdemeanor.
MR. REINHART stated AFA feels HB 286 can protect fish and
will facilitate the ability of people like Mr. Bell to
harvest timber sales in a timely fashion and an
environmentally sound manner, doing so for the benefit of
their communities and their employees.
Number 078
JOE WEHRMAN, REPRESENTATIVE, KONKOR FOREST PRODUCTS,
testified via teleconference and expressed support of HB
286. He said HB 286 will allow ADF&G to focus their efforts
on protecting streams where significant numbers of fish
actively spawn, rather than worry over every inch of an
anadromous stream, which might possibly be used by a single
fish. Regulations resulting from HB 286 should effectively
eliminate the need for hearings for individual exemptions
which Mr. Rue alluded to, thereby making the fiscal note
unnecessary. He noted much has been said about the 1,200
permits every year and pointed out that in total, the
permits only represent a total of less than ten acres being
subjected to any risk of habitat disturbance. He stated
Konkor Forest Products believes that more damage is done to
fish habitat by fishermen wading, than what is allowed in
the permitting process.
MR. WEHRMAN stated anybody in the state can propose a stream
to be in the anadromous stream catalog yet it is very
difficult to get the stream out of the catalog once it is in
there. He pointed out there is no requirement for ADF&G to
let landowners or land managers know that they are adding
streams to the catalog. He suggested that in AS
16.05.870(e), page 1, line 5, the word "may" be changed to
"shall". He stressed if the word remains "may", everyone
can be assured there will not be any changes resulting from
HB 286. He has been told by ADF&G employees that the
department's long-term goal is to completely prohibit both
fords and culverts as legal methods of crossing any stream,
whether anadromous or not. He pointed out that goal will
make small development areas infeasible statewide.
MR. WEHRMAN said the present law is a zero tolerance. He
stressed Alaska needs to get back to allowing rational
resource development and HB 286 is one step in that
direction.
Number 115
JEFF PARKER, REPRESENTATIVE, ANCHORAGE FISH AND GAME
ADVISORY COMMITTEE, testified via teleconference and
expressed opposition to HB 286 because it reduces penalties,
makes convictions more difficult, (indiscernible) value of
the Anadromous Fish Act. He said from the economic
perspective, the present law is good law. The present law
tries to assure (indiscernible) resource development,
whether it is commercial fishing, recreation, or timber
harvest--all are allowed to operate in a manner which is
compatible with each other and assures that each of those
resource uses continues as an economic venture.
MR. PARKER said to weaken the present law puts one resource
development ahead of others. He felt the characterization
that the present law puts fish ahead of timber is a
mischaracterization. He expressed hope that the legislature
is sensitive to what HB 286 will do from an outside or non-
Alaskan perspective. Alaska is frequently criticized
unjustly for not caring about the protection of its fish and
wildlife resources. The present statute is a good example
of the state legislature caring about protection of fish and
wildlife resources. To weaken it, appeals and reenforces
outside interests to criticize this state unjustly. He gave
an example.
MR. PARKER stated the issue is not about the harvest of one
resource over another, it is about the mutual harvest of
both types of resources--fish and timber. The issue is not
about favoring one resource over the other, it is allowing
both to continue. The issue is not a question of keeping
access open, because the permit system does that and it
works. It is not a question about philosophy. He stressed
the legislature should be careful about requiring the
substantial violation being a willful violation. That is
not required in speeding, drunk driving, or of legislators
themselves in their compliance with financial disclosure or
campaign financing. He felt it is much better to mitigate
the circumstances of any particular violation--that is, its
willfulness in the context of sentencing rather than in the
context of the classification of the crime itself.
Number 172
MR. PARKER said there has been testimony about how other
resource users, such as fishermen, should pay for their
resource use. He agrees with that concept. However, the
implication that recreational fishermen do not pay is
inaccurate. He pointed out that recreational fishermen not
only pay for their license fees but also pay through the
(indiscernible) federal excise taxes which pay every cent
going into the sport fishing division. That division is the
only agency within the state government not funded by
general revenue, but solely by user fees.
Number 185
MR. PARKER stated with respect to constitutional rights to
use natural resources, there needs to be a clarification of
a prior statement made. Constitutional rights of common use
relate to fish, wildlife, and water, not timber or other
natural resources. He said the timber industry expressing
concern about the extent of the impact on the fisheries is
highly analogous to the timber industry saying they would
express concern or be opposed to fishermen expressing
concern over reforestation requirements. He pointed out
what protecting fish habitat does is essentially
reforestation of a fishery. One never hears the timber
industry opposing reforestation or (indiscernible) because
that is very reasonable, sensible, natural resource
management. That is the same thing as what is before the
committee except this is concerning fish.
CHAIRMAN WILLIAMS announced HB 286 will be held in committee
for further consideration.
Number 223
HB 436 - Strictness of Air Quality Regs.
JOSEPH EASAW, AIDE, REPRESENTATIVE AL VEZEY, stated HB 436
is designed to preclude the Department of Environmental
Conservation (DEC) from adopting by regulation, any ambient
air quality or emission standard that is more stringent than
the federal standards in the Clean Air Act. This bill will
limit that authority to the legislature which can adopt by
statute any standard deemed in the state's best interest.
Number 235
REPRESENTATIVE FINKELSTEIN wondered how this bill will work
if there is a new industry with a new pollutant being put
out and there is a health hazard. He said there are areas
presently where DEC has the authority to regulate that
activity, something not addressed at the federal level. He
asked if that authority is being taken away in HB 436.
Number 249
MR. EASAW responded that authority is not being taken away.
He said HB 436 limits the authority of DEC to not set forth
any regulation which is more stringent than those of the
federal regulations. The bill does allow DEC to set
regulations where no federal regulations are addressed.
REPRESENTATIVE FINKELSTEIN asked if subsections (b) (3) and
Section 2 address that issue.
MR. EASAW said that is correct.
Number 265
CHAIRMAN WILLIAMS pointed out the legislature went through
HB 167 last year and there was a lot of discussion and
debate on the bill, with many compromises made to arrive at
an agreement. He wondered how HB 436 will affect HB 167.
MR. EASAW stated he does not dispute the time which DEC may
have put into HB 167 and the compromises made. He said the
intent of HB 436 does not negate any of the work done on HB
167. The bill simply says DEC cannot set forth regulation
standards which are greater than the federal regulations.
CHAIRMAN WILLIAMS clarified HB 436 will not affect anything
in HB 167.
MR. EASAW stated HB 436 does not necessarily impact the work
of HB 167. Section 5 of HB 436 adds a definition of
regulated air contaminant and does say any regulation
adopted under AS 46.14.010(b)(2), meaning those regulations
adopted which were greater than the federal standards could
be affected.
REPRESENTATIVE FINKELSTEIN asked what is the reason for HB
436.
MR. EASAW responded there are two prominent reasons. First,
there is a feeling that anything that is in the state's best
interest which is beyond the guidelines of the federal
regulations should be left to the legislature. Second, when
guidelines are set forth which are greater than those of the
federal regulations, years of permitting processing is
required for certain industries and the economy is affected.
Number 322
MICHAEL MENGE, DIRECTOR, DIVISION OF ENVIRONMENTAL QUALITY,
DEC, stated HB 436 is not good for Alaska's business
community or the state's citizens. DEC feels under
appropriate conditions and circumstances it does make sense
for DEC to proceed beyond where the federal government sets
a standard. He noted the situations which develop in the
state are principally in the area of ambient air standards,
where DEC is looking at an air shed and the ability to step
into that air shed and restrict emission values
(indiscernible) than the federal government would authorize
where it makes sense to do so. He agreed that could be
accomplished through the legislative process but noted how
slow that process can be. He pointed out, with the
flexibility DEC currently has, DEC can accomplish this with
one-on-one negotiations with the permittee or those seeking
permits and do it fairly quickly.
MR. MENGE stated another key component is the two year
process it has taken to get to the current point. He said
although HB 167 is just one component within a very large
statutory package, it is a balanced equation. DEC worked
for two years to strike a balance, which represents
protection for the environment plus allows an environment in
which business can also work. He stressed there was
unanimous support across all the environmental and business
communities for HB 167. Therefore, DEC does not feel it is
a good time to step in and tinker with that equation
especially since DEC is currently in the process of writing
the regulations for the statute.
REPRESENTATIVE JAMES noted the last sentence of the sponsor
statement says, "This bill will limit that authority to the
legislature which can adopt by statute any standard deemed
in the state's best interest." She thought the Air Quality
Act passed last year contained provisions making the rules
more restrictive than the federal standards, which she does
not believe HB 436 affects. She stated HB 436 affects the
authority of the regulators to regulate past what is
contained in HB 167 and/or other federal regulations not
necessarily addressed in that bill. HB 436 takes the
ability to make those determinations and puts it in the lap
of the legislature, as opposed to the regulators. She asked
why that is not a good idea.
LEN VERRELLI, PROGRAM MANAGER, AIR QUALITY MANAGEMENT
SECTION, DEC, responded there are two points to look at
regarding the authority to regulate. One is a situation
like Unicol which has an ammonia standard currently which
they did not have before. The federal government does not
have an ammonia standard. Therefore, through a four year
intense process, a regulation was established, resulting in
an agreement between the community and the industry to
establish that standard. He said in the new statute, if DEC
decides to do something like that again, it will come before
the legislature, a committee is formed of the peers of that
particular pollutant and a resolution is found.
MR. VERRELLI stated the other point is what DEC does at a
request of the permittee. He mentioned the Healy Clean Coal
Project, as an example. He said the only reason that permit
was able to be issued by DEC is that the source came to DEC,
saying they wanted more stringent emission standards,
enabling them to keep emissions lower and get the National
Park Service to agree the project will not impact Denali
National Park. He stressed HB 436 will require going
through a more stringent permit process.
Number 444
STAN STEPHENS, PRESIDENT, PRINCE WILLIAM SOUND REGIONAL
CITIZENS' ADVISORY COUNCIL (RCAC), testified via
teleconference and stated HB 436 will prohibit DEC from
adopting or enforcing a regulation which establishes an
ambient air quality or emission standard more stringent than
federal standards. With the considerable time devoted by
numerous Alaskans over the past two years on HB 167, RCAC
was extremely surprised to see HB 436 proposed. RCAC was
even more surprised to see HB 436 scheduled for a hearing.
He stated the effort devoted to HB 167 was a multi-year
endeavor by representatives of many diverse interests in the
state. The result of this effort is Alaska's current air
quality statutes, regulations and public policies. These
results also represent a compromise among those different
perspectives. He noted those who represented the public
interest dedicated a significant amount of time and
resources to develop the compromise. Those same people
largely accepted the compromise, despite that industry
clearly fared better than the public.
Number 464
MR. STEPHENS stressed it is extremely disheartening after
this process and good faith effort to see HB 436. In the
past, DEC has not been overbearing in adopting regulations
more stringent than federal law requires. For example, in
the air pollution area, DEC has adopted only two additional
ambient air quality standards which were for ammonia and
reduced sulphur compos and both were for special industrial
pollution problems in Alaska. DEC has adopted smoke
capacity rules particularly important for vessel traffic in
Juneau, Seward, and Valdez. DEC has a program to control
ice fog, hardly a concern to the Environmental Protection
Agency (EPA) or the rest of the country. DEC has adopted
special rules applicable to the port of Anchorage allowing
liquid loading racks and delivery tanks to come to the
Government Hill neighborhood. Mr. Stephens said few will
argue those regulations are necessary to protect public
health and welfare and natural resources, even though they
were not forced by federal law and are more stringent than
federal law.
Number 484
MR. STEPHENS stated it is also not clear that HB 436 will
accomplish anything. Specifically, the state will give up
considerable flexibility if this legislation passes. For
example, the Golden Valley Electric Association recently
agreed to alter air emissions to make room for the Healy
Coal facility emissions (indiscernible) Denali Park. He
said in the port of Valdez, the EPA is setting emission
standards for organic vapor emissions due to tanker
operations at Alyeska's Valdez Marine Terminal. Valdez is
the largest single source of organic vapor emissions.
Number 504
MR. STEPHENS stressed state involvement and flexibility is
not in the best interest of the public or industry. RCAC
strongly opposes HB 436. The ability to set air quality
emission standards to protect the health of Alaskans is an
important state's rights issue which should not be casually
given away.
Number 515
REPRESENTATIVE JAMES asked why the state should have
regulations which are more stringent than federal standards.
She added that she does not consider permitting the same as
establishing regulations.
MR. VERRELLI responded it is. When an emission standard is
put in a permit, it becomes law for that particular permit
and that particular source.
Number 525
REPRESENTATIVE JAMES asked if that permit requirement and
regulation is at the request of the permittee, will HB 436
disallow DEC from doing that.
MR. VERRELLI replied yes.
REPRESENTATIVE JAMES asked what the time frame is for
establishing regulations relating to ambient air quality
standards.
MR. VERRELLI estimated it takes approximately one year to go
through the entire process.
REPRESENTATIVE JAMES wondered since HB 436 will still allow
the legislature to make rules and regulations more strict
than existing federal regulations, if it would be wise in
instances where there should be more strict regulations for
DEC to bring that situation to the legislature to make that
decision.
MR. MENGE stated timing is a very crucial issue. DEC
oftentimes enters into an air permit situation where there
is a fairly polarized community with a variety of industrial
interests. DEC negotiates the numbers which all of the
constituents can live with, by incorporating them into the
permit and then running the permit through the permit
approval process. That then becomes a part of the public
record and public acceptance, thus affecting the overall
permit. If DEC was to bring that process before the
legislature, it will be more difficult to arrive at an
agreement. He said the process tends to attract additional
concerns and policy issues, so the narrow focus, in a
specific geographic area, with a very narrow constituency,
oftentimes provides an opportunity to resolve a problem
before it begins to grow out of proportion. He felt it is a
question of timing.
Number 585
REPRESENTATIVE JAMES clarified that when someone applies for
a permit where state and federal laws apply, because the
public wants something even bigger, DEC, in issuing the
permit, should be able to do what the public asks. She
asked where does the public's right come into play in
getting something which is more than what state and federal
laws require.
MR. MENGE responded if the permittee is within the air
increment of a region, the public is entitled to that. He
said the public interest is represented through the permit
process. He noted the Healy project is a good example.
There is one emitting source well within permit limitations
and a second emitting source is coming in there. The
affected community was unprepared and unwilling to accept an
increase above the ambience standard. The public had a
vested interest and became fairly vocal through the permit
process. The permittee recognized a difficult situation, so
it made sense for the permittee to request a lower standard,
which had to be done in conjunction with the existing
source. Therefore, there were three groups along with the
state, together determining what the appropriate limitations
for all the permits should be, which allowed both to proceed
forward while still allowing the public to accept the
decisions made since they were a part of the process.
REPRESENTATIVE JAMES stated it appears the legislative
process is being circumvented.
MR. MENGE responded the public does not have a voice beyond
the existing air limitations standards. The public's voice
comes into play when a permit is being written and the
permittee is requesting to pull back. Once the permit is
reviewed and sent out for public comment, the public has an
opportunity to comment. He said if the standard is to be
strictly adhered to and the law does not allow going beyond
a certain limitation, then the permittee is not going to be
able to submit their permit because there will not be room
for the permittee within that air shed. The permittee will
have to stand back and wait until the older industrial
entity goes away or a process is developed allowing them to
fit into the remaining air increment.
MR. VERRELLI stated all regulations proposed by the
department and the permits go to a legislative committee, so
that interest does come to the legislature. There is a
committee that reviews these permits and regulations while
DEC is developing them.
MEAD TREADWELL, DEPUTY COMMISSIONER, DEC, stated the
legislature has given the department authority to protect
public health. The legislature has not looked at that
authority in terms of what the federal government has
determined what public health is. Rather, the legislature
says DEC has the capability to look at Alaska's needs, to
protect Alaskans. Therefore, there is a state's rights
issue as well. He said DEC was also given strong binders
last year in the compromise reached through HB 167. The
compromise requires if DEC does something different than the
federal requirements, DEC must commission a peer review
panel and go through an extensive risk assessment process
which is somewhat expensive. He felt there already is a
strong bind on DEC if the department decides to move forward
and do something the federal government is not doing.
MR. TREADWELL said many times, DEC can see down the road and
determine the federal government is going some place which
DEC does not want to go. If DEC has a regulatory process in
place, the federal government is likely to defer to DEC's
process in some cases, rather than adopt their own. He
pointed out that is what is happening in relation to Valdez.
The federal government is setting air standards for organic
contaminants for marine terminals around the country--
terminals one hundredth the size of the Valdez terminal. He
added the technology the federal government is requiring is
one Alyeska may not be able to meet. DEC can meet the needs
of Alaskans by having a standard in place ahead of the
federal government, which is stronger than what the federal
government has presently. He felt in the end, DEC will be
deferred to and a different, more flexible standard than the
federal standard will be put in place. He said industry is
working with DEC on this issue.
TAPE 94-44, SIDE B
Number 000
MR. TREADWELL stated DEC has been told if they do not have
certain things adopted in the National Toxic
(indiscernible), they will have to defer to a tougher
federal standard. Therefore, DEC went ahead and adopted
some things. At the time DEC adopted them, they would have
been illegal had HB 436 been applied to the water. He
stressed the flexibility has been very helpful.
REPRESENTATIVE JAMES asked if the situation in Valdez should
have been dealt with by the legislature this year.
MR. TREADWELL said that process is one where scientists were
paid hundreds of thousands of dollars by each side, doing
extensive studies making a very difficult determination of
scientific health risk. If the process was tied to a
legislative session, the 120 day rule and delayed for
another year, there may have been further losses of state
flexibility versus the federal government. He felt the
legislature probably does not want to get into that level of
detail. He pointed out that the legislature has passed laws
authorizing a public process to go forward to review health
risks and he added that public process works very well. He
said the legislature has authority to tell DEC to get out of
that business in Valdez and make a determination. He felt
to do it with a law which says the legislature always wants
to be doing that will be very difficult. He gave examples.
He stressed DEC has not abused the flexibility. DEC asked
the sponsor of HB 436 if there were any particular examples
where DEC may have made mistakes and the sponsor could not
give any examples.
Number 055
REPRESENTATIVE GREEN clarified the Lieutenant Governor
signed the air quality bill last week.
MR. VERRELLI stated it was the state implementation plan,
which is not the Title 5 process coming from HB 167.
REPRESENTATIVE GREEN asked if that plan would be affected if
HB 436 became law.
MR. VERRELLI said the one thing which falls under the
transportation control regulation package is the
nonattainment areas of Anchorage and Fairbanks. If there is
construction in that area, HB 436 will affect the plan
because DEC will have to set limits lower than federal
standards since it is a nonattainment area for carbon
monoxide.
REPRESENTATIVE GREEN clarified there are three pollutants
very closely watched in nonattainment areas and asked what
the risk is.
MR. VERRELLI responded there have been seasonal changes in
Anchorage and a haze has built up over the Seward Highway.
He said that haze is (indiscernible) chemical smog. The
smog usually occurs twice a year and gives an indication
that the state is on the threshold because DEC does not
control hydrocarbons, which is part of the ozone package.
REPRESENTATIVE GREEN wondered if the state is working under
the agreement from last year, would the state be more or
less likely to not come under federal regulation with HB
436.
MR. VERRELLI said that is a difficult question to answer
because of the different considerations. He stated as an
overall policy, the federal government likes to see a state
taking the initiative to protect its citizens and is always
supportive because sometimes federal laws are lagging. He
noted the wood stove standards are a good example.
Number 110
REPRESENTATIVE GREEN asked if HB 436 will have any adverse
impact on getting available federal funding.
MR. TREADWELL responded the Clean and Mitigate Air Quality
funds are federal highway funds which have to be committed
to mitigation of air quality problems. When DOT spends that
money, they have to spend it in conjunction with a plan to
improve air quality. DEC is in a bureaucratic never-never
land currently with oxyfuels. The law says oxyfuels should
be used yet they are not being used. DEC may have to defend
that decision in court.
MR. TREADWELL said just because DEC cannot be as stringent
as the federal government does not mean DEC has to be as
stupid as the federal government. Many times the federal
government gives DEC dumb things to do. DEC oftentimes goes
to the federal government and asks them to let the
department manage for the desired result, rather than
managing the way the federal government tells them to. He
continued to discuss the issue. He cannot say the state
will be limited from using federal funds. DEC has thought
about using those funds in conjunction with local
governments. However, asking DEC to work on a standard more
stringent than the federal government will require a long
and unnecessary delay for DEC if the HB 436 process is used.
Number 159
RICK LAUBER, REPRESENTATIVE, PACIFIC SEAFOOD PROCESSORS
ASSOCIATION (PSPA), stated PSPA has not taken a position on
HB 436. He said PSPA participated, as an industry, on the
task force which worked on HB 167. He pointed out that all
major industries were invited to participate on that task
force and most of them did. Out of that work came HB 167
which passed largely intact. He said the concept in HB 436
was discussed extensively by the committee but the majority
of the committee felt this type of legislation was not
needed. The task force felt there were times when there
should be more strict regulations.
Number 200
MR. LAUBER noted the task force realized that before DEC
could impose more stringent regulations, there would be a
review by industry, public, etc. HB 167 resulted from many
compromises. He cautioned committee members that before
they make any significant adjustments, they have the same
type of process and review which was used to put HB 167
together.
Number 221
CHAIRMAN WILLIAMS asked the sponsor if he had been asked by
industry to sponsor HB 436.
REPRESENTATIVE VEZEY stated the impetus of the bill came
from a recommendation from the Governor's Task Force on
Regulatory Reform. He said the general statement that state
regulations should not exceed federal standards is very
generic and broad based. He explained given the time
restraints, this was the only area he had time to address
because the subject matter of the clean air bill was still
fresh in people's minds. He said there was no push by any
individual nor was there any specific problem which
instigated HB 436, but rather a general concern of many
people in very broad terms.
CHAIRMAN WILLIAMS stated since the House Resources Committee
is the last committee to hear HB 436, it will be held for
further consideration.
ANNOUNCEMENTS
CHAIRMAN WILLIAMS announced the committee will meet on
Wednesday, March 30 at 8:15 a.m. to hear HB 515.
ADJOURNMENT
There being no further business to come before the House
Resources Committee, Chairman Williams adjourned the meeting
at 11:00 a.m.
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