Legislature(2005 - 2006)CAPITOL 124
03/16/2005 01:00 PM House RESOURCES
| Audio | Topic |
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| Start | |
| HB153 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 153 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
March 16, 2005
1:15 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Co-Chair
Representative Ralph Samuels, Co-Chair
Representative Jim Elkins
Representative Carl Gatto
Representative Gabrielle LeDoux
Representative Kurt Olson
Representative Paul Seaton
Representative Harry Crawford
Representative Mary Kapsner
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 153
"An Act relating to regulation of the discharge of pollutants
under the National Pollutant Discharge Elimination System; and
providing for an effective date."
- MOVED CSHB 153 (RES) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 153
SHORT TITLE: POLLUTION DISCHARGE & WASTE TRMT/DISPOSAL
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/16/05 (H) READ THE FIRST TIME - REFERRALS
02/16/05 (H) RES, FIN
03/14/05 (H) RES AT 1:00 PM CAPITOL 124
03/14/05 (H) Heard & Held
03/14/05 (H) MINUTE(RES)
03/16/05 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
BRIAN KRAFT
Bristol Bay Alliance
Fishing Lodge Owner
Bristol Bay, Alaska
POSITION STATEMENT: Testified against HB 153.
DAN EASTON, Director
Division of Water
Department of Environmental Conservation (DEC)
Juneau, Alaska
POSITION STATEMENT: Answered questions on HB 153.
CAMERON LEONARD, Senior Assistant Attorney General
Natural Resources Section
Department of Law
Fairbanks, Alaska
POSITION STATEMENT: Answered questions on HB 153.
ROBERT ROBICHAUD, Manager
Wastewater Permit Unit
Northwest Region
Environmental Protection Agency (EPA)
Seattle, Washington
POSITION STATEMENT: Answered questions regarding HB 153.
BEN BROWN, Legislative Liaison
Department of Environmental Conservation
Juneau, Alaska
POSITION STATEMENT: Answered questions on HB 153.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Resources Standing Committee
meeting to order at 1:15:14 PM. Representatives Crawford,
Samuels, Seaton, Olson, LeDoux, Kapsner, Ramras, and Elkins were
present at the call to order. Representative Seaton joined the
meeting soon after it was in progress.
HB 153-POLLUTION DISCHARGE & WASTE TRMT/DISPOSAL
CO-CHAIR RAMRAS announced that the only order of business would
be HOUSE BILL NO. 153 "An Act relating to regulation of the
discharge of pollutants under the National Pollutant Discharge
Elimination System; and providing for an effective date."
BRIAN KRAFT, Owner, Fishing Lodge, said he helped start the
Bristol Bay Alliance, which is a non-profit group devoted to
help educate locals about issues that may adversely affect their
Native cultural ways of life. He said state primacy for the
National Pollutant Discharge Elimination System (NPDES) will
mean less staff to help enforce and inspect activities, which
could adversely affect habitat and waterways. The state of
Alaska has spent time and financial resources in promoting wild
and fresh Alaska salmon, and should look at more staffing and
enforcement instead of less to ensure that habitat and salmon
bearing streams are protected. He said people who depend so
heavily on salmon for subsistence deserve more consideration.
MR. KRAFT said primacy would create bigger state government.
The federal government is willing to oversee and bear the costs,
he said, and Alaska should be looking at ways to streamline
state government. He concluded that he finds it troublesome
that permit writers will be working closely or contracted by the
permittees, as if the fox is in charge of the henhouse. If the
state is leaning one way or another, pro-development or anti-
development, it would be too easy for local permit writers to be
influenced, he said.
REPRESENTATIVE CRAWFORD suggested that both federal and state
programs run the risk of being politicized, and wouldn't it be
better to have regulators closer to the operations.
MR. KRAFT said he sees the current administration as pro-
development, and if a company wants to develop a mine, Alaska
Department of Environmental Conservation (DEC) permit writers
will be working for a governor who is pushing it. He added that
it is easier to be influenced by the local government,
especially in the small state that Alaska is. The federal
regulators are further away from the pressures of local
government, he stated.
CO-CHAIR SAMUELS said it could cut both ways, because Mr. Kraft
could get frustrated with delays if he wanted a permit for his
lodge. The bill is not trying to pick a side of pro or anti-
development, he said.
1:25:31 PM
MR. KRAFT said the reduction in staff looks like less
enforcement, and the costs will be shouldered by Alaskans.
1:27:53 PM
REPRESENTATIVE SEATON asked if small permits are done by DEC.
DAN EASTON, Director, Division of Water, Department of
Environmental Conservation, said DEC does the small permits, but
the Environmental Protection Agency (EPA) does the vast majority
of the permits.
REPRESENTATIVE LEDOUX noted that in the current system there is
a special relationship between the EPA and tribal governments,
and asked what the state will do about that.
MR. EASTON said it is complex, but EPA has an obligation for
government-to-government consultation, and when the state
applies to EPA for primacy, EPA will have to consult with the
tribes. At that time, the tribes will likely ask EPA to add a
condition that the state will have to do the same during
permitting. It will be less formal, but it still will be an
obligation, he said.
REPRESENTATIVE LEDOUX said there are many communities that have
tribal governments. What happens when they need a permit, she
asked.
MR. EASTON said DEC would treat a tribal permittee just as any
other permittee.
REPRESENTATIVE SEATON said EPA and tribes have a sovereign-to-
sovereign relationship, and he asked what the state relationship
would be with the tribes.
MR. EASTON said DEC discussed this issue with attorneys, and the
obligation is not sovereign recognition, it is simply an
obligation for consultation before taking actions that could
have a significant impact on a tribe. There will be no change
on the status of tribal governments in Alaska.
REPRESENTATIVE SEATON asked if there will be a different level
of consultation for tribes than any other group of citizens.
MR. EASTON said DEC's obligation is for public comment, and
consultation is not an obligation of DEC. Tribes, DEC expects,
would get consultation in addition to public notices.
REPRESENTATIVE CRAWFORD asked who decides what tribe is being
affected.
CAMERON LEONARD, Senior Assistant Attorney General, Natural
Resources Section, Department of Law, Fairbanks, said that
currently the EPA decides itself what tribes are likely to be
affected, and sometimes the state does not agree with EPA's
decisions. He said he is not sure how it would work under the
state program.
ROBERT ROBICHAUD, Manager, Wastewater Permit Unit, Northwest
Region, Environmental Protection Agency, said EPA identifies
what tribes might be impacted by proposed permits, and then EPA
will invite the tribe to meet with them--usually before the
public notice. If the tribe requires formal consultation, a
representative also meets with EPA when the permit is ready to
be issued. The state would develop similar procedures and work
with EPA on such when applying for primacy.
1:39:39 PM
REPRESENTATIVE SEATON said he talked with DEC and expressed
concern with page 2, lines 3 and 4, regarding expanding the work
group beyond the permittees so that the public will be involved.
MR. EASTON said DEC did not prepare anything. "The bill says
the permittee will have access to the permit after the close of
the public comment period. We have said on the record that
[DEC's] intent...[would be that] we couldn't give the permittee
exclusive access to the permit at that point in time, and that
would be our intent that the permit would be made available
after the public comment period closes to the permittee; it
would be posted on the web; and would be made available to
anybody that would have provided comment on the draft permit.
We do think that is a legitimate and good point, but at this
point we haven't prepared an amendment."
REPRESENTATIVE SEATON said that was one of his points he will
bring up later, but currently he is speaking about the exclusive
make-up of the work group.
MR. EASTON apologized and said DEC believes that the work group
consisting of the permittees but open to the public works very
well. He said he suspects it would be fine to open the meetings
up to one or two members of the public.
1:43:45 p.m.
REPRESENTATIVE SEATON moved to adopt conceptual Amendment 1, as
follows:
Page 2, line 3, after "permittees"
Insert ", the public"
Page 2, line 4, after "meet"
Insert "in a public forum noticed under rules of
AS44.62"
CO-CHAIR SAMUELS objected so DEC can tell the committee what it
does now with public notices. He said he doesn't have a problem
with someone like Mr. Kraft joining the group, but "I would have
a lot of problem with a work group this size, and we've got the
Sierra Club and the Audubon Society and the Trustees for Alaska,
and, and, and, because that's not what we're after, and I want
to clarify that on the record that we don't want millions of
dollars of outside money coming in with a vested interest in
simply stopping development."
REPRESENTATIVE SEATON said the goal is to broaden the work group
to include members of the public. We, as a legislative body,
need to ensure that the Alaska public is involved, he said. The
amendment does not define who that would be, and he does not
want the public to be the majority of the work group.
CO-CHAIR SAMUELS said the public member should not be a
permittee who is not affected by the particular permit involved.
He removed his objection.
There being no objection, Amendment 1 carried.
REPRESENTATIVE SEATON noted that page 5, lines 12-14, gives the
permittee an opportunity to discuss the permit with DEC after
the public comment period and not in a public forum. "This is
very problematic," he said. He stated that DEC just said it is
not their intent. This could allow for a lot of pressure upon
DEC staff while preparing a permit. A closed meeting is not
DEC's intent, but that is what the legislation says, and
Representative Seaton said he would like to amend it.
MR. EASTON said on line 12 after program, insert "or comments on
a draft permit", and this would open the process to others.
REPRESENTATIVE SEATON said line 13--where the permittee can
discuss the permit with staff--allows for private negotiations
after a draft permit is issued. He said normally people can
submit comments after a draft comes out, and no one has the
statutory ability to discuss it privately with staff.
CO-CHAIR RAMRAS said he has many times gone to DEC prior to a
final permit for his food service operations, "without forcing
DEC to come out in a formal capacity." He said he has lived
under item three and finds it a positive part of the process.
"Item 3, here, is one of the best features of DEC, as I find
them to be a very accessible state agency that has been helpful
and has accelerated the process in my dealings with them," he
said.
1:53:28 PM
REPRESENTATIVE SEATON said this is not just a kitchen permit; it
can be discharges that affect the general public. He offered
conceptual Amendment 2 which will read:
Page 5, line 12, after "program"
Insert "or comments on a draft permit"
REPRESENTATIVE SEATON said, in response to Representative Gatto,
someone applying for a permit might need to talk with DEC before
the application or permit goes out for public review, and that
is the appropriate time for give and take. But Section 3 gives
the permittee the right to have private negotiations with DEC
after public comments are done. This is not the appropriate
time to change a permit, he opined. "It is a very unusual
situation," he said.
CO-CHAIR SAMUELS said in the real world sometimes the permittee
knows the most about the problems of a permit, and sometimes
that expertise can help fix poor interpretations. "You don't
want to change the general gist. You don't want someone coming
in there and gutting it," he said.
REPRESENTATIVE SEATON said that is why, in the development of a
permit, it is a good idea, but after the agency makes draft
regulations, this amendment would allow the permittee or anyone
who has commented to review the final permit.
1:58:15 PM
CO-CHAIR RAMRAS said he believes the committee agrees on
conceptual Amendment 2 which says "or comments on a draft
permit", but the current discussion is on a third amendment that
hasn't been proposed.
Hearing no objection, Amendment 2 carried.
REPRESENTATIVE SEATON offered conceptual Amendment 3:
Page 5, line 13,
remove ", and to discuss it with staff of the
department"
CO-CHAIR RAMRAS objected.
REPRESENTATIVE SEATON says this still allows a person to comment
to the department to make clarifications, just like you do, but
it does not become a negotiation outside of the public arena.
CO-CHAIR RAMRAS said closed caucuses are "where we get a lot of
our work done."
CO-CHAIR SAMUELS asked what the appeal process is after the
final permit.
MR. EASTON said the state has an informal appeal process, and
there is an opportunity for an adjudicatory appeal to the
commissioner.
CO-CHAIR SAMUELS asked if a permittee talked DEC into gutting a
permit, would there be a process and a paper trail to take care
of it.
MR. EASTON said that is correct.
CO-CHAIR SAMUELS said the original rule of the Federal Energy
Regulatory Commission (FERC) "was 180 degrees and 10,000 miles
from where we ended up. If we had to work off of the working
draft model and not been able to interact with the staff, we
don't know where we would have ended up," he said, because the
legislature and all of the players were at the table to discuss
common sense issues.
REPRESENTATIVE CRAWFORD said the chronology of Co-Chair Samuels'
example is confused. The FERC rule was changed during the
public comment period. Representative Seaton is referring to
the permittee's opportunity to go in later with no public
review.
REPRESENTATIVE SEATON clarified that what Co-Chair Samuels is
talking about is Section 2, "which I didn't modify. You have
draft regulations, you work through those," he said, and then
this legislation allows the permittee to go in after the public
process, after everything has been worked out, and negotiate for
changes.
CO-CHAIR RAMRAS said he likes the way the bill reads now because
it is useful for his restaurant to have one-on-one meetings with
health inspectors to clarify and clean up things before a final
permit. He opined that it is efficient and a time and money
saver. "I haven't found that it circumvents the public process;
I have found that it has enhanced my ability, as a member of the
private sector, to have a responsive relationship with a
government agency."
REPRESENTATIVE SEATON asked if currently a permittee can come in
and discuss a final rule before it is issued and after the draft
and public comment process.
MR. LEONARD said he believes that EPA does not allow that kind
of consultation with the applicant. He added that there is
nothing under state law that would prohibit this kind of
consultation after public notice.
MR. ROBICHAUD said that once a permit has gone through a public
process, EPA does not have consultation with anyone. He pointed
out that if DEC makes significant changes resulting from such
consultation, there will be a requirement to re-notice the
permit.
2:09:20 PM
A roll call vote was taken. Representatives Seaton, Kapsner and
Crawford voted in favor of conceptual Amendment 3.
Representatives Elkins, LeDoux, Olson, Gatto, Samuels and Ramras
voted against it. Therefore, conceptual Amendment 3 failed by a
vote of 3-6.
REPRESENTATIVE CRAWFORD asked about the use of contractors.
MR. EASTON replied that the work group recommended using
contractors to make sure DEC has sufficient resources to
expedite complex permits.
2:12:05 PM
REPRESENTATIVE CRAWFORD asked if that is why there are fewer
employees needed.
MR. EASTON said that is true in part, "but I don't want to leave
you with the impression that the way that we can run the program
with eight fewer employees is solely because we've privatized
some of the work and given it to contractors...probably some of
it."
2:12:50 PM
MR. EASTON said that EPA makes good use of contractors.
REPRESENTATIVE SEATON inquired if the fiscal note contains the
cost of contractors.
MR. EASTON said it does.
CO-CHAIR SAMUELS moved conceptual Amendment 4, which read
[original punctuation provided]:
Page 5, Line 1
Add a new Section to read:
· Sec. 6 The uncodified law of the State of Alaska is
amended by adding a new section to read:
Annual Reports on Program Assumption and Execution
Within the first ten days of each annual Legislative
session the department shall submit a report to both
houses of the Legislature and to the Governor that
includes the following information:
(1) the Department's progress in preparing and
submitting its application to the EPA by the intended
deadline of June 30, 2006;
(2) EPA's progress in reviewing the state's
application and expected or actual date and contents
of EPA's approval;
(3) the Departments and EPA's progress during the
five-year NPDES program transition period, describing
which program responsibilities have been transferred
to the Department, which retained by EPA, and whether
the transition is on schedule; and
(4) once the Department is running an approved NPDES
permitting program, the time and costs associated with
issuance of permits, compared to the time and costs it
formerly took EPA to issue such permits.
(a) The report under this section shall include:
(1) Time for each permit issued from initial
application to actual issuance of the permit;
(2) An explanation as to why, if the permitting
process exceeds 18 months.
(3) The costs of issuing the permit to the
department;
(4) The costs of issuing the permit to the
permittee;
(5) Whether these costs are an increase or
decrease; and
(6) How and why the increase or decrease was
realized.
CO-CHAIR RAMRAS objected for discussion purposes.
CO-CHAIR SAMUELS said if timesavings are not realized with HB
153, the legislature has not done much. He said conceptual
Amendment 4 will require DEC to report on the transition and if
and why any permit takes longer than 18 months. This is a
"hammer in here as that there'll be some consequences that...if
the time savings do not happen and we're not streamlining the
process, we want to know why, and we can revisit the entire
issue."
CO-CHAIR RAMRAS assured that it is a friendly amendment that DEC
agrees with.
REPRESENTATIVE LEDOUX said we may be closing the barn door after
the horse leaves. She questioned spending time and money before
being assured of the benefits.
CO-CHAIR RAMRAS noted that all but five states have taken over
primacy.
2:16:30 P.M.
BEN BROWN, Legislative Liaison, Department of Environmental
Conservation, said, "All prognostications are imperfect." This
legislation begins a process towards assumption of primacy, he
said, and the amendment is not just a report once primacy is
gained, but it provides the legislature with information through
the process. The supposition that state primacy will work
better is in the fact that no state "has ever had primacy yanked
back by the EPA."
CO-CHAIR SAMUELS said, "We know it is taking too long now," to
have to deal with both the federal and state government, so he
will support the legislation in order to try to streamline the
process.
CO-CHAIR RAMRAS removed his objection.
There being no objection, Amendment 4 carried.
REPRESENTATIVE SEATON said he is concerned that the bill is
adding 13 new employees in addition to the 254 that are proposed
elsewhere in the governor's budget. He added that the
legislature has tried to shift funding sources to the federal
government instead of the general fund, and HB 153 does the
opposite. He sees a similar issue with the state taking over
the Alaska Coastal Management Program, and it is "one heck of a
mess." Alaska is clashing with the federal government. He said
the state will lose a lot of federal funds, and he hasn't seen
enough evidence that there will be streamlining in time and
money. He said he does not want to move forward on HB 153.
REPRESENTATIVE CRAWFORD said he likes the idea of having things
done here in Alaska, but he has concerns over the use of
contractors. Privatizing work that state employees could do
usually brings little or no savings, and sometimes there is a
financial loss.
CO-CHAIR SAMUELS moved to report HB 153 as amended out of out of
committee with individual recommendations and the attached
fiscal notes. Hearing no objection, CSHB 153(RES) was reported
from the House Resources Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 2:23p.m.
2:23:11 PM
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