Legislature(1995 - 1996)
03/22/1996 08:16 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 22, 1996
8:16 a.m.
MEMBERS PRESENT
Representative Joe Green, Co-Chairman
Representative William K. "Bill" Williams, Co-Chairman
Representative Scott Ogan, Vice Chairman
Representative Alan Austerman
Representative John Davies
Representative Pete Kott
Representative Don Long
Representative Irene Nicholia
MEMBERS ABSENT
Representative Ramona Barnes
COMMITTEE CALENDAR
CS FOR SENATE JOINT RESOLUTION NO. 39(RES)
Relating to the U.S. Environmental Protection Agency draft National
Pollutant Discharge Elimination System general permit for placer
mining in Alaska.
- HEARD AND HELD
HOUSE BILL NO. 542
"An Act relating to participation in matters before the Board of
Fisheries by members of the board."
- PASSED CSHB 542(FSH) OUT OF COMMITTEE
(* First Public Hearing)
PREVIOUS ACTION
BILL: SJR 39
SHORT TITLE: EPA'S NPDES PERMIT FOR PLACER MINING
SPONSOR(S): RESOURCES
JRN-DATE JRN-PG ACTION
03/11/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205
03/11/96 (S) MINUTE(RES)
03/11/96 2686 (S) READ THE FIRST TIME - REFERRAL(S)
03/11/96 2686 (S) RESOURCES
03/11/96 2690 (S) RES WAIVED 5 DAY & PUB HRG NTC,
RULE 23
03/12/96 2705 (S) RES RPT CS 4DP 1NR SAME TITLE
03/12/96 2705 (S) ZERO FISCAL NOTE TO SJR & CS (S.RES)
03/13/96 (S) RLS AT 11:00 AM FAHRENKAMP RM 203
03/13/96 (S) MINUTE(RLS)
03/14/96 2737 (S) RULES TO CALENDAR 3/14/96
03/14/96 2744 (S) READ THE SECOND TIME
03/14/96 2744 (S) RES CS ADOPTED UNAN CONSENT
03/14/96 2744 (S) ADVANCE TO THIRD READING FLD Y11 N7 E2
03/14/96 2745 (S) THIRD READING 3/18 CALENDAR
03/18/96 2784 (S) READ THE THIRD TIME CSSJR 39(RES)
03/18/96 2784 (S) PASSED Y16 N2 E2
03/18/96 2785 (S) Duncan NOTICE OF RECONSIDERATION
03/20/96 (H) RES AT 8:00 AM CAPITOL 124
03/20/96 (H) MINUTE(RES)
03/20/96 2816 (S) RECONSIDERATION NOT TAKEN UP
03/20/96 2816 (S) TRANSMITTED TO (H)
03/21/96 3233 (H) READ THE FIRST TIME - REFERRAL(S)
03/21/96 3233 (H) RESOURCES
03/22/96 (H) RES AT 8:00 AM CAPITOL 124
BILL: HB 542
SHORT TITLE: BOARD OF FISH VOTING ETHICS
SPONSOR(S): COMMUNITY AND REGIONAL AFFAIRS
JRN-DATE JRN-PG ACTION
03/13/96 3114 (H) READ THE FIRST TIME - REFERRAL(S)
03/13/96 3114 (H) FISHERIES, RESOURCES
03/20/96 (H) FSH AT 5:00 PM CAPITOL 124
03/20/96 (H) MINUTE(FSH)
03/21/96 3240 (H) FSH RPT CS(FSH) 1DP 3NR
03/21/96 3240 (H) DP: AUSTERMAN
03/21/96 3241 (H) NR: OGAN, ELTON, G.DAVIS
03/21/96 3241 (H) ZERO FISCAL NOTE (H.FSH)
03/22/96 (H) RES AT 8:00 AM CAPITOL 124
WITNESS REGISTER
ANNETTE KREITZER, Legislative Assistant
to Senator Loren Leman
Alaska State Legislature
Capitol Building, Room 115
Juneau, Alaska 99801
Telephone: (907) 465-2095
POSITION STATEMENT: Gave sponsor statement for CSSJR 39(RES).
STEVE BORELL, Executive Director
Alaska Miners Association
501 West Northern Lights, Suite 203
Anchorage, Alaska 99503
Telephone: (907) 276-0347
POSITION STATEMENT: Testified in support of CSSJR 39(RES).
JAMES H. JOHNSON, Vice President
Northern Testing Laboratories
3330 Industrial Avenue
Fairbanks, Alaska 99701
Telephone: (907) 456-3116
POSITION STATEMENT: Testified in support of CSSJR 39(RES).
MICHAEL CONWAY, Chief
Industrial Operations, Water Programs
Division of Air and Water Quality
Department of Environmental Conservation
410 Willoughby Avenue, Suite 105
Juneau, Alaska 99801-1795
Telephone: (907) 465-5298
POSITION STATEMENT: Answered questions regarding water quality
relating to CSSJR 39(RES).
CLARKE MILNE, Civil Engineer
3540 Industrial Way
Fairbanks, Alaska 99701
Telephone: (907) 456-7892
POSITION STATEMENT: Testified in support of CSSJR 39(RES).
GEORGE LOUNSBURY
P.O. Box 70983
Fairbanks, Alaska 99707
Telephone: (907) 479-3058
POSITION STATEMENT: Testified in support of CSSJR 39(RES).
FRED HEFLINGER
P.O. Box 82390
Fairbanks, Alaska 99709
Telephone: (907) 479-3213
POSITION STATEMENT: Testified in support of CSSJR 39(RES).
ROGER BURGGRAF
830 Sheep Creek Road
Fairbanks, Alaska 99709
Telephone: (907) 479-2596
POSITION STATEMENT: Testified in support of CSSJR 39(RES).
KATHALEEN "MIKE" DALTON
P.O. Box 70681
Fairbanks, Alaska 99707
Telephone: (907) 479-6733
POSITION STATEMENT: Testified in support of CSSJR 39(RES).
HARRY JENKINS
210 Tenth Avenue
Fairbanks, Alaska 99701
Telephone: (907) 456-4905
POSITION STATEMENT: Testified in support of CSSJR 39(RES).DON MAY
4545 Woodriver Drive
Fairbanks, Alaska 99709
Telephone: (907) 479-8219
POSITION STATEMENT: Testified in support of CSSJR 39(RES).
EDDIE GRASSER
Alaska Outdoor Council
4506 Robbie Road
Juneau, Alaska 99801
Telephone: (907) 463-3830
POSITION STATEMENT: Testified in support of CSSJR 39(RES).
SARA HANNAN, Executive Director
Alaska Environmental Lobby
419 Sixth Street
Juneau, Alaska 99801
Telephone: (907) 586-3366
POSITION STATEMENT: Testified on CSSJR 39(RES).
CHERYL SUTTON, Legislative Assistant
to Representative Bill Williams
Alaska State Legislature
Capitol Building, Room 128
Juneau, Alaska 99801
Telephone: (907) 465-3424
POSITION STATEMENT: Testified on CSHB 542(FSH).
BUD HODSON, Past Chairman
Board of Fisheries
4852 Hunter Drive
Anchorage, Alaska 99502
Telephone: (907) 243-8450
POSITION STATEMENT: Testified in support of CSHB 542(FSH).
TOM ELIAS, Past Chairman
Board of Fisheries
6800 East Tenth Avenue
Anchorage, Alaska
Telephone: (907) 333-9159
POSITION STATEMENT: Testified in support of CSHB 542(FSH).
NICK SZABO
P.O. Box 1633
Kodiak, Alaska 99615
Telephone: (907) 486-3835
POSITION STATEMENT: Testified in support of CSHB 542(FSH).
JEFF STEPHAN
United Fishermen's Marketing Association
P.O. Box 1035
Kodiak, Alaska 99615
Telephone: (907) 486-3453
POSITION STATEMENT: Testified in support of CSHB 542(FSH).
ACTION NARRATIVE
TAPE 96-39, SIDE A
Number 000
CO-CHAIRMAN JOE GREEN called the House Resources Standing Committee
meeting to order at 8:16 a.m. Members present at the call to order
were Representatives Williams, Ogan, Austerman, Davies, Kott and
Long. Members absent at the call to order were Barnes and
Nicholai.
CSSJR 39(RES) - EPA'S NPDES PERMIT FOR PLACER MINING
CO-CHAIRMAN GREEN announced the first order of business would be
CSSJR 39(RES), "Relating to the U.S. Environmental Protection
Agency draft National Pollutant Discharge Elimination System
general permit for placer mining in Alaska." He explained the bill
has to do with the mixing zone, the dilution and discharge of
fluids from mining operations. It is a federal discharge permit -
the national discharge elimination system."
Number 119
ANNETTE KREITZER, Legislative Assistant to Senator Loren Leman
Alaska State Legislature, came forward to give the sponsor
statement for CSSJR 39(RES). She indicated the Senate Resources
Committee is the sponsor of the resolution.
MS. KREITZER explained the resolution was introduced by the Senate
Resources Committee partly because the committee was concerned
about what they see as a trend. The national level of the
Environmental Protection Agency (EPA) is settling law suits
involving parties who are directly impacted by regulations
promulgated by the agency. She said in this instance, what has
happened is the EPA has issued a new draft National Pollutant
Discharge Elimination System (NPDES) general permit as a result of
the settlement of a lawsuit filed by the Sierra Club Legal Defence
Fund. One of the elements of that settlement requires all
dredgers, for the first time ever, to have a NPDES permit, despite
the fact that the EPA doesn't have the personnel to process all
these newly required permits. This causes great concern to the
Senate Resources Committee.
MS. KREITZER stated Alaska has a long solid history of mineral
production. As other regions of the United States have perhaps
lost touch with the bounty of their natural resources, the EPA
should not subject Alaska to unscientific burdensome reporting and
permitting requirements at the whim of somebody who has never had
dirt under their fingernails. The committee members are very
concerned about this trend at the national level. This resolution
was introduced to try to heighten the awareness of the EPA to the
concern of at least the Senate and, hopefully, the House to this
situation. She noted Steve Borell was on line to answer any
questions.
CO-CHAIRMAN GREEN asked if there was somebody in attendance from
the Department of Environmental Conservation (DEC) to address the
bill.
MS. KREITZER said she isn't aware if there is anyone who is in
attendance from DEC who is interested in testifying on the
resolution.
Number 324
STEVE BORELL, Executive Director, Alaska Miners Association,
testified via teleconference from Anchorage in support of the
resolution. He said if the draft NPDES general permit goes into
effect, as it is currently written, it will have very serious
adverse consequences on all mining in Alaska and any mining company
that needs a discharge permit. He said this particular draft of
the permit references dredge and recreational mining in addition to
commercial operations. It would include the smallest dredgers.
Mr. Borell said he believes this is a serious tourism issue in that
this permit, as written, would make it illegal for tourist coming
up for the celebration of the hundredth year anniversary of the
Klondike to bring a 1 1/2 or 2 inch dredge with them and do
dredging in Alaska. They would have to have the same kind of a
permit that a commercial miner having a D-9 and a 245 hoe would
have to have.
MR. BORELL said the permit has clearly been written by people who
definitely did not have dirt under their fingernails. It is
written in a way that not only will the small dredging operations
be required to have this permit for the first time, it will require
that every one of the small dredges have an individual permit and
not a general permit. The EPA has, on one hand, proposed a permit
that will increase the number of the public people who has to have
a permit by several thousand. Currently, there are probably about
300 of these permits in existence. They are expanding that to
probably several thousand. Mr. Borell noted his estimate is
between 1,000 and 2,000. Further, they are requiring that these
people would not be able to actually get this permit (indisc.), but
they would be forced to get an individual permit which is a long
process and much more difficult.
MR. BORELL said beyond this existing permit, itself, or one piece
of this proposed permit is an underlying policy on metals reporting
for arsenic. He said this has a lot of people extremely concerned.
Mr. Borell informed the committee members he has had calls from
people throughout the United States questioning what is in the
permit. He was also asked if he new that the EPA has allowed
different rules in other states. Mr. Borell said he does realize
that. It seems that EPA is being more stringent with Region 10
then some of the other regions. He explained the extension of the
permit is going to be that if the arsenic reporting protocol policy
is allowed in one permit, we're very likely to see it in the future
for other permits such as hard rock mining, fish processors, etc.
MR. BORELL said he would describe some of the recent events that
have been occurring. Last Friday, at the request of Commissioner
Michele Brown, a meeting was organized in Fairbanks. Four members
of the EPA's staff, three of which came from Seattle, attended the
meeting. Department of Environmental Conservation, Department of
Fish and Game and Department of Natural Resources were all
represented. The purpose of the meeting was to see if indeed the
Mining Association was willing to sit down and talk to try to work
through a modification of this permit. The answer was, "Yes,
absolutely we're interested." They had not been a part of the
process previously and hadn't been a part of the suit. Mr. Borell
informed the committee members that there have been at least two
contacts this week between the Mining Association and the Sierra
Club Legal Defense Fund. He said he is hopeful that something will
be beneficial. We're approaching a critical time which is April 5.
Based on the settlement agreement between the Sierra Club Legal
Defense Fund and the EPA, on April 5 the EPA must issue a final
action. Mr. Borell explained in no way does he want to do anything
that could be seen by (Indisc.) in breaching attempts to make a
negotiated settlement. He said the committee needs to know that
the Alaska Miners Association is very concerned about this permit.
Mr. Borell said he would answer any questions the committee may
have.
Number 774
CO-CHAIR GREEN said Mr. Borell had mentioned arsenic from a
leaching project and he also spoke about the thousands of potential
recreational miners. He asked if it is true that the recreational
miners will not be involved in any kind of arsenic or leaching
process.
MR. BORELL said that is correct. He said the permit is entirely
placer mining. The extension is where the Alaska Miners
Association believes where problems will be caused in the future.
He referred to policies that are included within the placer permit
and said if they are included in the placer permit, they expect it
will be impossible to keep them out of another permit at a later
date.
Number 839
CO-CHAIR GREEN questioned what the current practice is on
recreational mining as differentiated from a stationary source on
turbidity, settling ponds and that sort of thing. He also asked if
there are any recreational mining operations that would be
conducted in a tributary or in an actual anadromous stream.
MR. BORELL referred to the last question and said Title 15, under
Fish and Game, makes it very clear that it is not legal to do any
mining in anadromous fish streams. They specify on a person's
permit at what times of the year that occurs. He explained a
recreational dredge miner that has a four inch dredge currently
doesn't have the requirement of the NPDES permit. When a miner is
required to apply for a mining permit and not for discharge, the
Department of Fish and Game receives a copy of that application for
review and they say, "O.K., you're on such and such a stream - that
means from May 15th to June 30th, or whatever the particular time
frame is, you're not allowed to be on that stream." He pointed out
that stipulation is put in the form of a letter to the dredge miner
and it states that he is absolutely not allowed to be there during
that time.
MR. BORELL referred to other aspects and said a commercial scale
dredge miner would be that anything above a four inch intake nozzle
currently must have a discharge permit and they must do various
visual checks down below their operation each day to be able to
certify that, "Yes, indeed the affect of my dredging can't be seen
500 feet down stream." Mr. Borell referred to the Forty Mile River
and said if you can see anything at all say 50 feet below the
dredge, he would be surprised. It settles out so rapidly. He
noted he is speaking about a suction dredge and not a mechanical
dredge with buckets. He noted fishing just below the dredge is a
good place to fish because the fish come to get the organic
material that has been stirred up as part of the suction dredging.
CO-CHAIRMAN GREEN said, "Thank you. So that kind of getting around
to the concerns that I was gunna express is that you don't see and
certainly Fish and Game, I imagine, would step in if they felt that
there was any affluent settlement on what would otherwise be a fish
egg burial area."
MR. BORELL indicated that is a correct statement.
Number 1073
REPRESENTATIVE JOHN DAVIES asked Mr. Borell if he is familiar with
the recreational dredging permits that are issued in California.
MR. BORELL responded he really isn't. He noted it is his
understanding, from Steve Hurshboc of Alaska Mining and Diving,
that in California everything less than eight inches is considered
recreational mining. Mr. Borell said, "He has indicated, and again
I have not read this so I'm not certain of it, but he's indicated
that in California you just want to buy a fishing license or a
hunting license, you go buy a dredging license for $20, or some
number, and so long as your dredge is less than eight inches - I
think the number is that they've said - with no expected
consequences."
REPRESENTATIVE DAVIES asked if California has a particular arsenic
level associated with that permit.
MR. BORELL said in California he doesn't believe they require a
permit for an eight inch dredge or less. He noted he isn't certain
about that. In the discussions he has had with people, that
question had never been asked. He stated that arsenic is
everywhere and is also in areas that have been highly mineralized.
When water which passes across rocks that have arsenic in them will
pick up arsenic. He said he would fully expect that the California
arsenic levels would be the same kind of a thing we would see in
Alaska.
Number 1190
CO-CHAIRMAN GREEN noted that all members of the committee are
present except Representative Barnes.
Number 1196
JAMES H. JOHNSON, Vice President, Northern Testing Laboratories,
testified via teleconference from Fairbanks. He informed the
committee they have a laboratory in Fairbanks and one in Anchorage
where they do a lot of drinking water, ground water, surface water
and NPDES discharge permit regulatory testing (indisc.). He said
he strongly supports CSSJR 39(RES). Mr. Johnson referred to the
language relating to the restrictions on the commercial mines and
said those are not the only restrictions in the resolution or in
the draft permit. He suggested that CSSJR 39(RES) be strengthened
to include several other points.
MR. JOHNSON explained the settlement of the law suit has not been
settled. He said he would like to clarify that the NPDES permits
that the miners have are valid permits at this point. The EPA has
chosen the route of wanting to settle the law suit with a new
permit, but that is not the only route to go. He said the process
that has been taken is very bad and continues to set a precedence
for policy making in the court. It has implications that go far
beyond just general permits for placer miners or dredgers. It has
wide implications for all NPDES permit holders in the state of
Alaska and there are many many permit holders. While this
particular issue relates to the general permit for placer mining,
what is being introduced would be very onerous for all NPDES permit
holders. Mr. Johnson said most people are aware of the arsenic
levels. Arsenic is a very controversial issue, nationwide, and is
being discussed at most levels of EPA and amongst water
professionals throughout the United States. There is a wide
disagreement on what really is a hazardous level of arsenic, both
to human health and to the environment. The level of .18, in his
mind, has no basis in the evidence he has seen.
MR. JOHNSON said as most people are aware, there is a lot of
arsenic in the Fairbanks district. He said that the previous day
he had reported out a drinking water analysis that had .15 parts
per million. That's almost 1,000 times higher of an arsenic level
than what is being proposed for a discharge permit. Mr. Johnson
said he would urge the state of Alaska to go beyond the resolution
and make a very active and aggressive effort to get involved in
this issue. He again noted there are issues that are broader than
the specific issues of the resolution.
Number 1448
REPRESENTATIVE DAVIES asked Mr. Johnson if he knows how many
hearings EPA had in Alaska on this proposed rule change.
MR. JOHNSON said there was one in Anchorage and one in Fairbanks
that he is aware of.
Number 1467
REPRESENTATIVE DON LONG said Mr. Johnson had mentioned to go beyond
the resolution and asked him what he would suggest.
MR. JOHNSON said the state should become the lead agency for NPDES
permits. This has been a problem in Alaska for some time and that
is one of the things that is a sticky legal issue. He said if you
look at other states that have taken the lead for NPDES permits,
they are the states that have discharge limits that are above .18
that have 50 parts, per billion, when it was the current dredging
water limit. One of the things that is being intended and it was
to the (indisc.), the EPA had adopted permit limits because the
state doesn't have primacy in this issue. The state of Alaska
needs to be in control of as much of its own destiny as it possibly
can. This is just another classic example of us being at the mercy
of federal regulations, even to a greater extent than we need to
be.
Number 1581
MICHAEL CONWAY, Chief, Industrial Operations, Water Programs
Division of Air and Water Quality, Department of Environmental
Conservation, was next to come before the committee. He said
currently, without having this NPDES authority from the federal
government, the state is in the role of certifying the federal
permits. The EPA will draft an NPDES permit for a water discharge,
then the DEC would have to go through that particular draft permit
and look at the water quality standards for the state of Alaska.
If there are any provisions that need to be added to have the
permit, as drafted, meet the water quality standards they put that
in a certification back to the EPA and they include that as a
condition on the permit. He referred to the general permit for the
placer mining operations and said the EPA had drafted that permit
without a whole lot of involvement from the state. He noted that
with some permits, the department has more of an opportunity to
participate, but with this one there wasn't the opportunity to
participate. It was drafted with a lot of interaction between the
EPA and the trustees.
MR. CONWAY informed the committee that the previous week there was
a meeting with the resource agencies of the state, DNR, Fish and
Game, DEC, in the Fairbanks attorney general's office with the
Alaska Miners Association. The DEC and the other state agencies
have some significant problems with that permit as well. Through
the discussions of that particular group of people, a strategy was
developed to where the DEC and the other resource agencies will
work with the Alaska Miners Association and the public to provide
an alternate kind of permit. The Alaska Miners Association is in
the process of asking for a panel hearing with EPA to be able to
present information. Mr. Conway said the department has been in
contact with the Sierra Club Legal Defense Fund mining specialists
and have talked about the different issues. He said as recently as
the previous day, Commissioner Brown received word that the Sierra
Club Legal Defense Fund, representing the trustees, would be
willing to discuss the permit and would try to resolve a lot of the
issues that are not suited for the Alaska placer mining situation.
Number 1729
REPRESENTATIVE IRENE NICHOLIA asked Mr. Conway what his feelings
are on the .18 arsenic level requirements.
MR. CONWAY said the state has been working with the regional office
of the EPA in Seattle to bring that into alignment with some of the
other states that have a NPDES determination. That level is as
high as .50 in other states. He said they have been working with
them and they have concurrence with the EPA, Region 10, to go back
to the headquarters as this was a Washington, D.C., determination.
Commissioner Brown is writing a letter to ask for the level that is
in other states. He noted the arsenic is naturally occurring in
Alaskan waters at fairly high levels, but it is still at safe
levels.
REPRESENTATIVE NICHOLIA asked Mr. Conway if he had an estimated
number that they may be coming out with for Alaska.
MR. CONWAY said the department is going to ask for up to 50.
Currently, the department's staff is reviewing the information that
is available as to where they came up with the numbers for the
other states. He said it will probably be in the neighborhood of
25 to 50.
Number 1808
CO-CHAIRMAN GREEN asked if the 50 parts per billion is permissible
for human consumption.
MR. CONWAY indicated it is.
CO-CHAIRMAN GREEN asked what that does over a period of time. He
said he understands that arsenic is a cumulative type of a thing
and stays in the body.
MR. CONWAY said it does, but noted he would have to get back to the
committee regarding the question. He said he needs to speak to
some of the scientists who deals with that. He said in discussions
he has had with scientists, that level is not going to be harmful,
even with accumulation. Again, it occurs at very high background
levels throughout Alaska anyway.
CO-CHAIRMAN GREEN asked if he could assume that the DEC would be
sympathetic, if not supportive, of a resolution like SJR 39.
MR. CONWAY explained the DEC is sympathetic to the resolution. He
said they are in the process of being more aggressive to have a
permit that will work for Alaskan placer miners. He said they also
agree that what is currently on the table is something that the
department cannot certify.
CO-CHAIRMAN GREEN referred to the meeting in Fairbanks and asked
Mr. Conway if he got the same feeling from the Department of Fish
and Game.
MR. CONWAY said he got that same feeling from DNR, Fish and Game
and the attorney general's office. There is no disfunction in
their ability to work this out for a statewide resolution.
Number 1898
REPRESENTATIVE DAVIES asked what the drinking water standard is for
arsenic.
MR. CONWAY said currently it is .18 in the state of Alaska on the
water quality standards. He said that is driven by the toxins rule
that comes out of Washington, D.C. Mr. Conway said until they get
delegation, if they go that route for the NPDES, it defaults to
that toxic rule which is .18.
REPRESENTATIVE DAVIES referred to the permit which was determined
by the settlement and asked if the level of arsenic is at the
discharge level or if it is at the base of a mixing zone.
MR. CONWAY explained that is the level that the discharge would be
required to meet. Mr. Conway said they can grant a mixing zone.
He noted "mixing zone" is a technical term that the states are
allowed to do in certification where when the waste water comes out
of the discharged point, it is allowed to mix with the surrounding
water and exceed the state water quality standards, but at some
perimeter of that zone, it needs to meet the water quality
standards. He noted there are also air mixing zones. Without a
state certification in any of these permits, the discharge has to
meet the water quality standards at the end of that pipe. Mr.
Conway explained in this particular situation, which they have done
in the past and will continue to do with placer mines, is they
allow a parameter of mixing. He said a lot of times you will see
visual sorts mixing such as with suspended solids like mud. In a
state certification, it would be up to the state to provide a
mixing zone and there are water quality standards that are laid out
as to what they are limited to be able to do for the sizes of those
mixing zones.
Number 2018
REPRESENTATIVE DAVIES asked Mr. Conway if he had any particular
examples of naturally occurring arsenic levels in rivers.
MR. CONWAY stated he didn't currently have them with him, but he
would get them for the committee. He noted they are working on
identifying the constituents in the watersheds that are of concern
around the state.
Number 2064
CLARKE MILNE, Civil Engineer, testified via teleconference from
Fairbanks, in support of CSSJR 39(RES). He informed the committee
he is a registered civil engineer in Alaska, he finished his
masters work at the University of Alaska, Fairbanks, and has worked
in Northern Alaska for the last 20 years. Mr. Milne said he knows
there are many issues that come before the committee and the
legislature, but this issue is interesting from the point of view
that placer mining can be devastated by the proposed settlement
general permit. Unfortunately, it need not be the case. There was
(indisc.) finding no signification impact that supported the 1994
general permit brought by the EPA. There was an agreement through
discussions between the environmental groups and Alaska Mining
Association to move ahead with the 1994 general permit. It then
turned out that the environmental groups did sue. Now the
settlement permit is the result of that chain of reaction.
MR. MILNE said, "Unfortunately, the combination of the arsenic
level that's set, the rules about dredging within 1,000 feet within
12 months and a number of other things that are mentioned in here -
moving your discharge within a mining season - it would basically
bind all truthful independent miners into a circumstance that they
couldn't adopt a general permit and they'd have to go get an
individual permit. It is unlikely that they'd be allowed to do
things under the individual that they were under the general, so it
could shut down placer mining and dredge work. Unfortunately, I
think that would be inappropriate because there was this (indisc.)
and, therefore, there really is no driving force to protect human
health and environment that the 94 shouldn't again be extended into
this year while the (indisc.) go on."
MR. MILNE said he very much agrees that the state of Alaska, DEC
and Fish and Game should sit down in discussions with
representatives of the miners or recreational miners and try to
work out a more workable solution that can allow mining. He
pointed out mining has been going on in Alaska for over 100 years
and hasn't devastated Alaska. He said it can be worked out better
than what the permit does which is very unbalanced.
MR. MILNE said he would like to clarify a comment made by Mr.
Conway in that the current requirement is .18 EPB. He said he
thought the thrust of the question was, "What are drinking water
standards?" He said he believes the drinking water standards is
.50 EPB. It is true that through default, because Alaska doesn't
have primacy and doesn't administer the Clean Water Act, that it is
.184 placer mining. Mr. Milne said he believes the resolution
should move and he encourages better communication. He said he
personally believes the EPA has not well represented the reality in
Alaska, especially Northern Alaska, where there is arsenic in the
water and the dredging and turbidity requirements. Background
levels would not be allowed in the proposal.
Number 2257
GEORGE LOUNSBURY was next to testify via teleconference from
Fairbanks. He said he is a life-long Alaskan and owns a mining
operation with his brother in the Koyukuk area. He said he
supports SJR 39 and hopes it passes. Mr. Lounsbury said he concurs
with Mr. Borell, Mr. Johnson and Mr. Milne with regard to the
(indisc.) of the permit that the EPA has negotiated with the
environmental organizations. It appears to him that this is a
basic attempt to shut down the placer mining industry in Alaska,
especially the smaller operators. He said it is a bad deal when
you invest in a bunch of equipment, time and effort and then have
somebody swoop in for what he feels is an unjust reason and puts
you out of business. Mr. Lounsbury said he would like to see the
state become more involved in this permit process and get the EPA
and government, at the federal level, out of our lives. He urged
passage of the resolution.
Number 2309
REPRESENTATIVE DAVIES said it has been suggested that perhaps the
state should consider taking primacy in this area. He asked Mr.
Lounsbury if he supports that.
MR. LOUNSBURY indicated he agrees wholeheartedly.
REPRESENTATIVE DAVIES said if it were to be the case that a small
increment would have to be added to DEC's budget, would he support
that.
MR. LOUNSBURY said he would support it.
Number 2337
CO-CHAIRMAN GREEN asked MR. CONWAY what would be involved for the
state to actually assume or get primacy. He said he knows that it
is done with water injection wells through Alaska Oil and Gas
Conservation Council (AOGCC), but he doesn't know about NPDES.
MR. CONWAY informed the committee members the department is
currently working with the EPA in looking at the staffing levels
that would be required for us to have primacy. It becomes a matter
of having permitting staff. He noted there are rules that are
approved for our water quality standards, so that hurdle has been
over come. Mr. Conway said the department has an EPA staff person
on loan for a year to look at what it would take for us to get the
NPDES primacy.
CO-CHAIRMAN GREEN said he would presume that would include the
authority to establish regulations, etc., as well as administer
them.
MR. CONWAY explained they currently have the authority to salvage
the regulations. He said they would have to have permittees who
have been through the training process on the Clean Water Act.
Currently, his staff focuses in on the Alaska water quality
standards, but they would then have responsibility for the whole
Clean Water Act on all of the issues which would require staffing
and training.
Number 2400
CO-CHAIRMAN GREEN said, "If we had primacy, the state of Alaska had
primacy and decided that .50 would be the number that we wanted
use, we would have that ability rather than have to stay with
something that came to us from EPA."
MR. CONWAY said that is correct. They would just go through and
amend the water quality standards.
Number 2430
FRED HEFLINGER testified via teleconference from Fairbanks. He
informed the committee he has property in Fairbanks and he mines in
the forty mile district. He said, "First of all I know that the
drinking water limit is 50 parts per billion and the arsenic limits
they are setting for us is .18 part per billion, which is 277 times
lower the standard that is allowed for drinking water. It's funny
that 25 other states are allowed 50 parts per billion as there is
for 50 micrograms per liter, whichever way we want to put it, is
their standard. It's kind of funny when they have a permit that
was good for five years, there has been an environmental assessment
done on it and then there is an agreement made behind closed doors
because the environmentalists are mad about it. When the
environmental EPA lawyer came up here from Seattle, Region 10
lawyer, he admitted that he was a member of a couple of
environmental organizations. I believe we haven't had due process
on this and I believe that the lawyers for the EPA are
environmentalists and that this is the thing that is done with all
our representation and it's completely unfair, but of course I know
the law is unfair. (Indisc.) decided it is too expensive to go
into litigation on this issue, although there are some miners that
(indisc.--coughing) in Fairbanks that has an agreement with EPA
that they will defend his position in general permit and any court
cases, and they have not...."[END OF TAPE]
TAPE 96-39, SIDE B
Number 001
MR. HEFLINGER continued, "...because the city drinking water
standard if 50 parts per million - billion I mean - and dump it
into the Chena River - pollutes it. Why that's probably the
conclusion that probably the City of Fairbanks is polluting the
Tanana River with the out fall from the sewage treatment plant too.
There are a lot of problems on all the permits and everything and
I think that this is a real raw deal. I'm sticking mostly to what
the placer miners want and I'm not worried about the dredgers, but
if the dredgers have to have a permit maybe everybody that runs a
jet boat should have a permit on the Kenai River and everywhere
else in Alaska because a jet boat is just a suction dredge that
produces propulsion. O.K., then also on this EPA permit they want
us to estimate seepage which is a big problem for me. If I keep
my pond at the same level all summer, it's in - it's a sad
situation, but there is always seepage and it's been (indisc.) by
EPA before. They can't measure, they're gunna hold me liable to
measure in seepage, which I don't even know what it is. I think
when you have things you can't measure -- are gunna hold people.
I think you would have a real problem."
Number 074
ROGER BURGGRAF was next to testify via teleconference from
Fairbanks in support of SJR 39. He said he believes in working
together with people to resolve issues, but this proposed permit
did not receive input from those who are being effected by the
proposed changes. This proposed modified general NPDES permit is
a back door deal cooked up by the EPA attorneys, who previously
worked for environmental (indisc.) groups, without the input of
industry. Mr. Burggraf said if this is not a conflict of interest,
he doesn't know what is. Other witnesses have given good testimony
which he hopes the committee will consider. He said the 1994
general permit was issued for five years. If the (indisc.) permit
is approved by EPA, those who presently hold valid general permits
will lose them. Many operations will have to apply for new general
permits. Others are going to have apply for individual permits.
This will probably occur right in the middle of the mining season.
Mr. Burggraf said it puts the whole industry in jeopardy. Many
miners have borrowed money, have large investments and have based
their next five year mining operation on this general permit. To
yank it out from under them and place them under a new permit, if
they're able to issue it, will jeopardize their ability to mine.
Mr. Burggraf said SJR 39 needs to be approved and the message needs
to be sent to the EPA.
Number 188
KATHALEEN MIKE DALTON testified via teleconference from Fairbanks.
She said she doesn't think it was a knee jerk reaction to require
the .18 per billion, but was a well calculated move. Ms. Dalton
said she suspects a sub-rosa agreement between the Northern Alaska
Environmental Center, the American Rivers Association, the Sierra
Club Legal Defense and agent or agents in the EPA. She said she
understands that Alaska and one other state does have primacy in
EPA matters. She said Commissioner Brown spoke the miners the
previous week and talked about the primacy issue. Ms. Dalton said
we should look at that, as a legislature, and seek that primacy.
The .18 parts per billion is an outlandish exurbanite requirement.
Ms. Dalton informed the committee her family background is in
mining. She urged the committee to look into the primacy issue as
it could solve a lot of problems.
Number 258
HARRY JENKINS was next to address the committee via teleconference
from Fairbanks. He stated he doesn't believe in holding the
miner's heads under water forever. Mr. Jenkins urged the committee
to pass SJR 39.
Number 277
DON MAY gave his testimony via teleconference from Fairbanks. He
stated he is the founder of Polar Mining and has since turned that
operation over to his sons. He read from a letter written by Dan
May, President, Polar Mining, "As a second generation Alaska placer
miner and president of Polar Mining, Inc., I'm very concerned about
the current water quality standards revision and their effects on
our industry. Further, I must protest the timing of the public
comment period and would request these regulations, revisions be
delayed. Whereas the current Alaska placer mining general permit
modifications proposed by EPA, as a result of the Sierra Club
lawsuit, their effects on placer miners have been contested by the
Alaska Miners Association. The outcome of the federal charges is
unclear at this time. Since the Alaska DEC water quality standards
are interrelated with those of the EPA I would request an extension
of the Alaska DEC water standards revision process in order to
first resolve the uncertainties arising from the EPA Sierra Club
law suit. Once the EPA general permit issues are resolved, we will
need additional time to study the revision in light of the federal
regulations outcome. I would further request that if the EPA
issues excessively restrictive regulations, as are currently
proposed, the Alaska DEC take a good look at what state regulations
it could modify or even implement in order to allow and encourage
the continuation of our industry. Our mining company strives to
maintain a good reputation and has struggles to adapt to many
regulation changes faced over the past ten years; however, there
comes a point in which it will no longer be possible to comply with
these unreasonable regulations. As the current EPA proposal to
require a miner to discharge water with affluent limitations based
on drinking water status while the natural receiving water is unfit
for human consumption is absurd, superfluous and lacks a scientific
basis. From where I stand, these proposed changes appear by
designed, by environmental extremists with a purpose of eliminating
placer mining in Alaska. For the past ten years Polar Mining has
provided year around jobs, near Fairbanks, with a work force of 43
employees. During that time this one company has produced in
excess of $40 million in new revenue, which is turned over and over
again in our community. Given the chance to continue our mining
operations, I see a 10 to 20 year life future for our employees
just within a 20 mile radius of this town. I applaud the Alaska
State Legislature for passing an act allowing for a mineral
exploration incentive credit designed to stimulate and encourage
mineral exploration and development. I want to thank you very much
for listening to us."
Number 431
EDDIE GRASSER, Alaska Outdoor Council, came before the committee to
give his testimony in support of SJR 39. He said one of the
council's main bylaws is public access to public resources and
there are a large amount of people in Alaska that do recreational
mining activities. He said they concur with comments made by Mr.
Johnson and Mr. Borell. Mr. Grasser said they are looking at the
issue as an access issue and there are a lot of people that would
like access to the public resources for their utilization.
Number 472
SARA HANNAN, Executive Director, Alaska Environmental Lobby, came
forward to address CSSJR 39(RES). She read a couple of excerpts of
a position paper from the Sierra Club Legal Defense Fund written by
Dave Chambers, Ph.D. Geophysicists, and primary negotiator in the
settlement agreement that CSSJR 39 speaks to.
"The EPA was in a weak legal position in defending its case before
the court. If the EPA loses in court, the court may require more
stringent standards that have been negotiated under the settlement
agreement. For example, the appellants have asked that a complete
set of metals, approximately ten metals, not just arsenic as in the
case in the settlement agreement, be required for testing - and the
testing (indisc.) will be once a week as required in the NPDES
permit for other mine discharges rather than three times per year
as required in the settlement agreement.
"The arsenic level of .18 parts per billion is not related to the
settlement agreement. The permit arsenic level was not an issue
discussed during the settlement negotiations. Moreover, if there
is no settlement agreement, the arsenic standard for permits issued
under the 1994 general permit will still be .18 part per billion.
This is not an issue that is relevant to the settlement agreement.
"All dischargers, currently under law, including small section
dredges are required by the Clean Water Act to have an NPDES
permit. Under the settlement agreement small section dredgers must
apply, by mail, for a permit they're obliged to read and abide by
which contains a set of simple best management practices the EPA
sends to them. There is no monitoring, no reporting and no fee for
this permit.
"The EPA has agreed to conduct studies to quantify the effects of
discharges from large section dredges greater than eight inches and
to analyze the qualities of metals being discharged from all placer
operations so that both miners and environmentalist will know
whether these operations are causing metals pollution or damaging
stream beds in Alaska. As with most settlement agreements, there
are many compromises leading to the settlement agreement that this
resolution speaks to, but there should be a distinguishing factor
made between what is part of the settlement agreement and what is
EPA process."
MS. HANNAN read from testimony given to the Senate Resources
Committee.
"At the beginning of the settlement agreement process, the Miners
Association chose not to intervene in the legal challenge to the
general permit. In addition, they were offered an opportunity to
comment on the settlement agreement when it was in its final stages
and they declined. The appellants are still willing to hear
substantive concerns from the miners and to approach the EPA about
modifications in the settlement agreement if the changes requested
will preserve the integrity of the settlement agreement.
"Secondly, currently the state of Alaska, under its water quality
regulations, allows for site specific exemptions which is something
that the state of Alaska has worked towards in the environmental
community in Alaska has cooperated with the mining constituency to
make sure we're pertinent because we have different mineralogy in
Alaska then you find in many places."
MS. HANNAN thanked the committee for time to give testimony.
CO-CHAIRMAN GREEN asked if there were any other comments. Hearing
none, he closed the public hearing. He noted he would keep the
record open for written comments.
CO-CHAIRMAN GREEN turned the gavel over to Co-Chairman Williams.
HB 542 - BOARD OF FISH VOTING ETHICS
Number 638
CO-CHAIRMAN BILL WILLIAMS said the committee would address CSHB
542(FSH), "An Act relating to participation in matters before the
Board of Fisheries by members of the board." He noted it is his
intent to move the bill from committee.
Number 660
REPRESENTATIVE ALAN AUSTERMAN informed the committee that HB 542
was introduced after a meeting held in Anchorage on February 15 and
16, 1996, between the Board of Fisheries' chairmen. He noted the
minutes from the meeting are in the committee member's files.
Representative Austerman said past chairmen of the Board of
Fisheries were contacted and six were able to attend. One of the
main things that came out of that meeting was the problem with the
conflict of interest that the board members were having when it
came to dealing with issues before the Board of Fish. He gave an
example where a board member held a salmon permit in Bristol Bay,
1 of 800, and was deemed to have a conflict of interest and could
not speak or vote on an issue dealing with the salmon permits in
the Bristol Bay area. Representative Austerman said the problem
with that is the fact that we have what we call a "lay board." The
lay board is supposed to be made up of people who are involved in
the industry so that you have the knowledge and expertise to make
decisions based upon the layman's perspective of what's going on
in that industry.
REPRESENTATIVE AUSTERMAN explained that part of the problem with
the way the current law is set up is that the option of an advisory
opinion from the attorney general is allowed in state law. If
somebody has a conflict of interest or has stated a conflict of
interest, the chairman of the board then has the option of going
and getting an opinion from the attorney general as to whether
there is a true conflict or not. That comes back to the issue of
an attorney general's opinion in reference to the permit holder in
Bristol Bay.
REPRESENTATIVE AUSTERMAN said the bill would change the law so that
it states that the Board of Fish members are required, whether they
have a conflict of interest or not, to sit on the board and make
decisions. They cannot opt of not making a decision and they
cannot be told that they can't make a decision. As a lay board,
we're trying to set it up so that those lay people that have opted
to permit themselves to be placed in that position that they do
have to vote.
REPRESENTATIVE AUSTERMAN referred to when the House Fisheries
Committee had hearings on HB 547, the Department of Law was in
attendance. They reviewed the bill and a small amendment was made
to Section 3 of the bill which satisfied the Department of Law. He
said he hasn't received a position from the Administration or the
Department of Fish and Game. He stated the bill has a zero fiscal
note.
Number 843
REPRESENTATIVE DAVIES questioned what the disclosure requirements
are.
REPRESENTATIVE AUSTERMAN said if he understands it correctly, and
there are some Board of Fish chairmen connected via teleconference
that can speak to this, they have to file a financial conflict of
interest statement with the Alaska Public Offices Commission
(APOC). He said the way the bill is drafted, it says they have to
declare at every meeting if they have a conflict of interest on any
subject before them.
Number 855
REPRESENTATIVE SCOTT OGAN said he had articulated some concerns in
the previous committee. He said, "If we're going to allow members
of the Fish Committee, Fish Board - excuse me, to vote despite a
conflict of interest, would it not be prudent to designate so many
positions on the board say to commercial fishermen, so many to
sport fishermen, to many to public members - possibly a more of a
professional member or some kind of a structure similar to what the
Big Game Commercial Services Board had when there was a -- they
would allow so many guides, outfitters, transporters, public
members and they had one representative from the Board of Game.
This precluded them from disclosing and allows them to vote on any
issue, even though they had a vested interest in it because there
was a structured balance on the board. And I was wondering if you
would be willing to possibly -- I'm not prepared with amendments
today. Unfortunately, this came up a little bit faster than I
anticipated. It seems like just -- if you would entertain working
on that concept or like maybe put that concept on the table for
discussion."
REPRESENTATIVE AUSTERMAN agreed that discussion took place at the
House Fisheries Committee meeting. He said he doesn't think he is
ready to try to come up with a whole new way of structuring the
Board of Fish as it would be very contentious and a political "hot
potato" that the whole state of Alaska would jump into. They way
it currently is set up, as far as the appointments to the board are
concerned, it is the Governor's option in how he appoints. The
intent of the way the board is supposed to be appointed is that it
is done on some kind of a balancing because of the different users
of the resource. The Governor currently has the control and the
option of how it's done. Representative Austerman said to come up
with a different way of doing it would take a lot of public input
and if that happened within HB 542, it would put the bill off for
a year. He urged the committee to read the minutes from the
meeting held in Anchorage and noted there were three chairmen from
the commercial fishing industry and three from the sport industry.
He said unanimously between the six chairmen, this was the main
issue that threatens the integrity and the operations of the Board
of Fish. Representative Austerman said if we are going to continue
to have a lay board, it is just about mandatory that we come up
with a system that allows them to take action and be involved in
the decision making of the whole industry. He said he would be
more than willing to hold Fish Committee hearings during the
interim to look at how the board's structure is currently done and
take input from the rest of the state to try and come up with
another plan. Obviously, the system currently has fault and he
believes it will always have faults because of the vastness of the
industry and what it really means to the state of Alaska. He noted
there are currently bills that have been introduced that do suggest
regionalizing the state, etc.
Number 1119
REPRESENTATIVE OGAN said, "I read the minutes from the meeting and
I recognize it is a problem. We also read the statute that - to
provided in the packet that talks about misuse of official position
and how you - if you have a conflict of interest you have to
disclose them. I believe right now the board members aren't
allowed to vote on an issue. That's the issue now that they're not
allowed to vote on the issue because if they have a conflict of
interest..."
REPRESENTATIVE AUSTERMAN said, "Not necessarily, the problem is
that if there is a conflict of interest that's been stated, the
option of going to the attorney general and having the attorney
general say that `you do have a conflict and you can't vote,' is
probably the biggest part of this is that any of the boards that
you sit on in the state of Alaska you have to declare a conflict of
interest. We're just trying to get a working board in and there's
a lot of boards that serve in the state of Alaska and the Game
Board is another one, but I've -- everybody that I've talked to
that have dealt with any of the other boards will tell you that the
problems facing the Fish Board are surmount compared to what any
other problems of any other board in the state of Alaska have and
that's what we're trying to fix."
Number 1187
REPRESENTATIVE OGAN said, "Ya, I would say that's probably because
- you know, like on the Game Board we don't have the commercial
exploitation of game, obviously that we have with fisheries and
so...."
REPRESENTATIVE AUSTERMAN said, "I would say the commercial
exploitation should be commercial use because when you're -- you're
talking about a number of different users. You're correct though,
there is a commercial use versus the game which is not necessarily
so much of a commercial use as the fisheries are, but again,
fisheries are the number one tax base in the state of Alaska.
Commercial fishing is compared to oil and has been the number one
tax base for the state of Alaska before oil ever to her - before
they started exploiting it. So, you know, there is a lot more
going on in the industry than there are in any of the other
industries that have boards attached to it."
Number 1247
REPRESENTATIVE DAVIES said he agrees with Representative Austerman
in that he thinks that the issue that Representative Ogan raised is
an important issue that needs to be resolved, but it is far more
complicated to deal with it in an amendment to this particular
bill. He said he would note that at least the last two governors
have spent a lot of time in consideration of the various balances,
both regional and gear types, etc., so it's not an issue that is
ignored. The whole extreme range needs to be considered and
perhaps it should even go to a professional board. It is much more
of a complicated issue and he believes the committee should move on
to passing the bill out of committee.
Number 1308
CHERYL SUTTON, Legislative Assistant to Representative Bill
Williams, Alaska State Legislature, came before the committee to
giver her testimony. She said she is testifying from a different
perspective as she was one of the privileged to serve on a Board of
Fisheries Review Committee appointed by Governor Cowper. She said
this issue has been discussed for some time. Ms. Sutton said the
Board of Fisheries Review Committee issued an official report to
the Governor, which was distributed to the legislature and others.
She read from the report so that the committee might have some
background on the discussion of this issue. She noted there are at
least two former chairmen, who are both sports fishermen, on
teleconference who she knows will support what she is going to
read. She quoted from the report:
"Other major concerns voiced in regard to conduct of the board
relate to conflict interest, special interest biased and influence
by special interest advocates. While it is recognized by the
committee that conflict of interest and special interest bias can
be and has, at times, been a problem with board members. The
unanimous view of the committee and the majority of view received
from the public supports appointments to the board of persons with
hands on knowledge of and experience with fisheries resources and
sport, commercial, subsistence and personal use fisheries. The
feeling of the committee is that even with a full-time board
divested of financial interest in the industry, persons of
sufficient knowledge and experience to qualify for appointment will
bring with them, by definition, certain views commensurate with
their experience and background. Conflict of interest and special
interest bias is not necessarily limited to commercial or financial
interests, but also extends to sport fishing, subsistence and
personal use. Any broad interpretation of conflict of interest or
special interest would, therefore, tend to severely limit the
number of qualified and knowledgeable person available for
appointment to the board. This does not mean, however, that both
the Governor and the legislature should not use reasonable care in
avoiding the appointment of persons perceived as advocates of
special interest groups. Divestiture of fisheries interest by
persons appointed to the board was carefully considered and
ultimately rejected by the majority of the committee."
MS. SUTTON continued reading from another excerpt of the report.
"The committee unanimously reaffirmed that assessee for full and
clear disclosure by appoint is of any all financial interest in
fisheries or fishery related business is as well in membership in
organizations. The committee also considered a proposal which
would require board members to abstain from discussing or voting on
issues in which the member has any economic interest, including
subsistence or personal use. It was decided that such a
requirement would seriously hinder the board's ability to
function."
MS. SUTTON explained the legislative process is not unlike the
Board of Fish process in that the members create law. The Board of
Fisheries has rule making authority and there are conflicts that
all the members of the legislative body carry with them, you work
at other jobs and have other interests. Yet when the legislators
are on the floor to vote on an issue, those issues are disclosed
and the member asks to be excused from voting on an issue and yet
is compelled by the body to vote. That is for a specific purpose
in which there is experience and expertise that is brought forward
by each of those members and you have an obligation to vote on
matters that are before you. Ms. Sutton said the Board of
Fisheries is no different in that regard.
Number 1560
REPRESENTATIVE AUSTERMAN said to follow up on Ms. Sutton's
statement, it gets back to how you balance a decision that has been
made on a fishing issue. You have to have a balance, you have to
have the balance of the sport industry, the commercial industry and
subsistence. If you don't, then you end up with a lopsided
decision. Representative Austerman stressed that balance is needed
for decision making.
REPRESENTATIVE AUSTERMAN pointed out a current problem is there are
a number of attorneys that attend the board meetings and they fight
tooth and nail to get somebody disqualified on a conflict of
interest because it then weighs the side of the other aspects of
this industry. Again, it is such a big important industry to this
state that we have to have some kind of balance to it.
Number 1671
BUD HODSON, Past Chairman, Board of Fisheries, testified via
teleconference from Anchorage. He informed the committee he served
on the Board of Fisheries for five years. He also participated
with other past chairmen in the two day meeting discussing issues
that pertain to the Board of Fisheries. Mr. Hodson said the single
most important thing that the chairmen thought needed to be
addressed was conflict of interest. Mr. Hodson said, "The current
chairman, Larry Engle, was also in attendance and we had a lengthy
discussion on not so much changing the Board of Fisheries, but
keeping it the way it was prior to some of the AG opinions and the
way the subsistence law is being interpreted and applied. And,
again, Mr. Austerman said correctly, if we're going to have a lay
board - people who participate in the industry, we have to allow
people to be able to participate in Board of Fisheries meetings
even though they may have somewhat of a conflict of interest or, in
some cases, maybe even a direct conflict of interest. If we don't,
what will happen through a period of time is that we will not have
anybody who actively participates in the industry. You're gunna
end up with people who do not commercial fish, do not participate
in the sport fish industry. In effect, you're not gunna have a lay
board. They may not be a professional board as we would consider
it, but you'll end up going to a professional board because people
who do not participate in the industry, frankly, it's hard for them
to have the time or the will power to serve on a board like the
Board of Fisheries, and you'll evolve into a professional board.
So if it's the goal of the state to keep a lay board for the Board
of Fisheries this action, in my opinion, is necessary."
MR. HODSON continued, "There is one other comment at the end there
where it says, `A Board of Fisheries person must participate.' I
apologize for not seeing this earlier, but when I was on the Board
of Fisheries the way that it worked is we would disclose our
conflict of interest and it was up to the board and Robert's Rules
of Order, the board would determine whether or not, you know, the
individual should participate or not. And I personally left a
board meeting once because there was only four people that
participated in a fishery and I was one of em and I did not want to
participate. I didn't feel it was fair. On this where it says
`must,' I guess in that situation I would've just abstained. I
would be staying within the new law here that I did participate
just by abstaining. That's pretty much all I have other than just
that I support it. If we're gunna keep it the way it was, at least
when I was chairman, this is necessary. Thank you."
CO-CHAIRMAN WILLIAMS indicated there are four more people to
testify on the measure. He noted he would like to move the
legislation.
Number 1898
TOM ELIAS, Past Chairman, Board of Fisheries, testified via
teleconference from Anchorage. He informed the committee members
he served on the board from 1991 to 1994. Mr. Elias stated he
echoes Mr. Hodson's and Ms. Sutton's comments. He referred to
abstaining from a vote and said we have done this as far back as he
can remember. He said people who serve on the board are various
people from various sections of the state and in different
industries such as sport, commercial, personal use or subsistence.
We need that expertise because some of the board members may not be
up to speed in a certain area. To disallow that person by
conflicting them out, they cannot even participate other than the
two or three minutes they give each testifier to testify. That is
a great disservice of the board and a great disservice to the
state. Mr. Elias said whether it be sport or commercial, he found
a certain higher level of ethics between the board members than
what is being perceived by the legislature, governor's office, the
general public and the attorneys. He said to keep the lay board,
this bill is extremely necessary. This is the only way to do it.
Number 2073
NICK SZABO testified via teleconference from Kodiak. He noted he
was a member of the Board of Fisheries from 1975 until 1982. Mr.
Szabo said he has been involved with the fishing industry in Alaska
for the last 30 years and is in support of HB 542. Mr. Szabo
informed the committee members he also attended the meeting with
the past chairmen and those who attended spanned a 20 year period
of board service and all were in full agreement that this change
was most needed. Fisheries management and allocation decisions are
very important to Alaska's economy. We need the full participation
of members who are highly knowledgeable and widely experienced in
a variety of different fishery uses. The issues are too complex
and too important to risk decisions by a board that doesn't fully
understand all the implications of their decisions. People with a
lot of knowledge and experience are likely to have both a financial
and a personal interest in an issue; however, the Executive Branch
Ethics Act prohibits participation by a member with a personal or
financial interest and, thus, frustrates the intent of having a
board composed of members with knowledge and experience. The seven
member Fisheries Board requires four votes to pass an action,
regardless of how many members are actually participating. At one
time the board had four members who held Bristol Bay salmon
permits. Under the present legal opinion, that board couldn't
function on any action that dealt with Bristol Bay. Mr. Szabo
pointed out that there have been other situations where only four
or five members have been ruled eligible to participate. In one
particular situation, an action to change the status quo failed on
a vote of three to two, yet a motion to approve findings in support
of that vote also failed because only a portion of the membership
was allowed to vote. The board's actions to maintain the status
quo was nullified by its inability to approve findings. [END OF
TAPE]
TAPE 96-40, SIDE A
Number 001
MR. SZABO said by requiring the board to document their reasons for
an action by findings of fact, the public can be assured that board
members are voting based on their expertise rather than their
conflict. These findings will give the public a written basis for
controversial board decisions. Possibly each board member could
additionally be required to produce personal findings explaining to
the public their individual reasons for a particular vote. These
additional obligations would require increased staff support, but
if the board is to regain the confidence of the public then they
are very much needed and long overdue.
Number 116
JEFF STEPHAN, United Fishermen's Marketing Association (UFMA),
testified via teleconference from Kodiak. He explained UFMA
represents commercial fishermen who are affected by the Board of
Fisheries process. The UFMA supports HB 542 and applauds the
committee's efforts and Representative Austerman's efforts for
taking the time to address this issue. He said they hope that the
Governor and the legislature are very careful in the appointment
and confirmation process of board members. They also hope that the
board is made up of persons who are capable of conducting the
public business in a manner that doesn't exercise any personal or
financial conflict of interest that they may have. Mr. Stephan
said, "We know, however, that it has been quite frightening in the
past on occasion when it is quite obvious that a board members has
an obvious predetermined biased with regard to a particular
regulatory matter. We note, however, that these predetermined
attitudes and bias may or may not be based on financial conflicts
of interest. The board process can and has been hamstrung because
of the current status of the ethics rulings by the attorney
general. Additionally, we have concern that the current process
leaves the option open for any administration to direct or control
the policies regulatory economy of the board through the offices of
the attorney general by virtue of the authority that the AG holds
to disqualify board members from voting. The AG can hold an
exercise (indisc.) of control over the board regulatory process
through this power that the own. While you can take actions to
modify the board's process by changing the ethics requirements or
otherwise making drastic changes to the structure of the board, you
are not getting to the root of the problem entirely. The
underlying process of the board should be addressed. The board
should be required to produce findings on significant regulatory
issues, and specifically with regard to any regulatory action where
the board's allocation policy is required to be considered.
Written findings should be required. They should be required to
address issues of cost and benefit and significant and substantive
matters. They should be required to consider alternative
regulatory options and before the board adopts, amends or repeals
a regulation, the board should be required to produce findings that
prove that the board substantively and reasonably considered at the
basis of regulatory action, the economic impact, the cost of
benefits, the environmental impact and the conservation impact of
their action. In conclusion, we support HB 542 as a first step in
improving the board process and we note that it is the structure
that is not in so much of need of fixing as the process itself.
Thank you very much."
Number 301
CO-CHAIRMAN WILLIAMS informed the committee that Mr. Dean Paddock
supports HB 542. He then said he would like to entertain a motion
to move the bill from committee.
AN UNIDENTIFIED COMMITTEE MEMBER said, "So moved."
CO-CHAIRMAN WILLIAMS asked if there was an objection. Hearing
none, CSHB 542(FSH) was moved out of the House Resources Committee.
ADJOURNMENT
There being no further business, CO-CHAIRMAN WILLIAMS adjourned the
House Resources Standing Committee meeting at 9:52 a.m.
| Document Name | Date/Time | Subjects |
|---|