Legislature(1995 - 1996)
03/29/1996 08:10 AM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE March 29, 1996 8:10 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 Ramona Barnes Representative John Davies Representative Pete Kott Representative Don Long MEMBERS ABSENT Representative Irene Nicholia 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. - MOVED SJR 39 (RES) OUT OF COMMITTEE HOUSE BILL 342 "An Act relating to water quality." - HEARD AND HELD 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 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 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 03/29/96 (H) RES AT 8:00 AM CAPITOL 124 BILL: HB 342 SHORT TITLE: WATER QUALITY STANDARDS SPONSOR(S): REPRESENTATIVE(S) ROKEBERG JRN-DATE JRN-PG ACTION 05/09/95 2042 (H) READ THE FIRST TIME - REFERRAL(S) 05/09/95 2042 (H) O&G, RESOURCES 10/17/95 (H) O&G AT 1:00 PM ANCHORAGE LIO 10/17/95 (H) MINUTE(O&G) 02/13/96 (H) O&G AT 10:00 AM CAPITOL 124 02/13/96 (H) MINUTE(O&G) 02/20/96 (H) O&G AT 10:00 AM CAPITOL 124 02/20/96 (H) MINUTE(O&G) 03/21/96 (H) O&G AT 10:00 AM CAPITOL 124 03/22/96 3267 (H) O&G RPT CS(O&G) 1DP 3NR 03/22/96 3268 (H) DP: ROKEBERG 03/22/96 3268 (H) NR: G.DAVIS, B.DAVIS, WILLIAMS 03/22/96 3268 (H) 2 FISCAL NOTES (DEC, F&G) 03/22/96 3268 (H) REFERRED TO RESOURCES 03/27/96 (H) RES AT 8:00 AM CAPITOL 124 03/27/96 (H) MINUTE(RES) 03/29/96 (H) RES AT 8:00 AM CAPITOL 124 WITNESS REGISTER REPRESENTATIVE NORMAN ROKEBERG Alaska State Legislature State Capitol, Room 110 Juneau, AK 99801 Telephone: (907) 465-4968 POSITION STATEMENT: Sponsor of HB 342. MARILYN CROCKETT, Assistant Executive Director Alaska Oil and Gas Association 121 West Fireweed, Suite 207 Anchorage, AK 99503 Telephone: (907) 272-1481 POSITION STATEMENT: Testified on CS HB 342. SUSAN BRALEY, Section Chief Water Quality Technical Services Division of Air and Water Quality Department of Environmental Conservation 440 Willoughby Avenue, Suite Telephone: (907) 465-5308 POSITION STATEMENT: Testified on CS HB 342. ROBERT F. McLEAN, Habitat Biologist Habitat and Restoration Division Alaska Department of Fish and Game 1500 College Road Fairbanks, Alaska 99701 Telephone: (907) 459-7281 POSITION STATEMENT: Testified on CSHB 342 ACTION NARRATIVE TAPE 96-44, SIDE A Number 000 CO-CHAIRMAN JOE GREEN called the House Resources Committee meeting to order at 8:10 a.m. Members present at the call to order were Representatives Green, Williams, Ogan, Austerman, Kott and Long. Representatives Barnes and Davies were late. Representative Nicholia was absent. A quorum was present. This meeting was teleconferenced to Anchorage. SJR 39 - EPA'S NPDES PERMIT FOR PLACER MINING CO-CHAIRMAN GREEN announced the calendar and the order of the agenda beginning with CSSJR 39 (RES). He stated that CSSJR 39 (RES) was heard previously on March 22 and, unless there were objections, he would entertain a motion to pass SJR 39 out of committee. Number 89 REPRESENTATIVE PETE KOTT moved that CS SJR 39 (RES) move from the House Resources Committee with individual recommendations and attached fiscal note. Hearing no objection, it was so ordered. HB 342 - WATER QUALITY STANDARDS CO-CHAIRMAN GREEN introduced witnesses on the teleconference network while awaiting the arrival of the sponsor of HB 342. Number 233 REPRESENTATIVE NORMAN ROKEBERG referred to the draft committee substitute, CSHB 342, prepared by Marilyn Crockett, Alaska Oil and Gas Association (AOGA). He said new information from the Resource Development Council (RDC) was included. He said RDC, fundamentally, supports the approach taken in the draft committee substitute. He said Marilyn Crockett would explain CSHB 342 and added that he, conceptually, likes the direction the bill is taking. Number 297 CO-CHAIRMAN GREEN asked Ms. Crockett if the proposed committee substitute incorporated his previous concerns on page 1, lines 5 and 8 in CSHB 342, version C, "(b) The commissioner may not require a higher discharge water quality standard for water used than the existing quality of water received for the use." and a concern with the "volumetric Imhoff Cone method." Number 340 MARILYN CROCKETT, Assistant Executive Director, Alaska Oil and Gas Association, was next to testify. She said the proposed language in CSHB 342, "(b) Except for a waterbody included on an Environmental Protection Agency (EPA) approved 303(d) Impaired Waterbodies List, the commissioner may not require a more restrictive water quality for discharged water than the existing quality of the receiving water." MS. CROCKETT said the Imhoff Cone method requirement is contained within CSHB 342. She said another amendment proposed by AOGA would require the use of EPA methods within the state and clarified that there were two versions of the testing method subject matter. Number 370 MS. CROCKETT said she manages AOGA's environmental committee and acknowledged the draft language might appear overwhelming, but it is language which has been tried and tested by both the state administrative process and the legislature through the air program. CO-CHAIRMAN GREEN interrupted to announce that the committee was awaiting the arrival of Mr. McLean via offnet in Fairbanks. Number 468 MS. CROCKETT referred to a document, titled, "Description of Amendments to CSHB 342 proposed by the Alaska Oil and Gas Association, dated March 27, 1996." She said Sections 1 and 2 are identical, "what we have done in those two sections is to add a provision at the beginning that said except for water quality included on EPA approved 303(d) Impaired Waterbodies List, we recognize the concerns that the Department of Environmental Conservation (DEC) has identified, and others. Frankly, we had the same concern that there were waterbodies in the state that had been degraded for whatever reason, naturally or because of other impacts that we are trying to clean up, would be included (indisc.) at the beginning of these two sections and that the waterbodies included in the 303(d) Impaired Waterbodies List are those waterbodies. In those cases, discharges should be required to discharge a higher water quality to that waterbody so that the waterbody can be approved." Number 551 MS. CROCKETT said other changes, to these two sections, take into account concerns that the DEC has expressed on the possible misuse of terms, such as "criteria" or "standard" and AOGA changed the word "standard" in one section as a result. MS. CROCKETT said that the rest of the backup, in Sections 1 and 2, requires discharge to not be more restrictive than the existing quality of the receiving water. She said it is this receiving waterbody, the one receiving the discharge, which is the waterbody of concern. Number 627 REPRESENTATIVE JOHN DAVIES addressed DEC's concern about including the reference to 303(d) Impaired Waterbodies List in CSHB 342. He said the reason for the concern is that it makes whether or not a waterbody is included on the list a contentious issue. He said, currently, DEC has been able to work back and forth on the list and whether or not a stream is or is not on this list has not been a major issue. He said DEC is concerned that the inclusion into statute will elevate those concerns to a possible source of litigation. Number 684 MS. CROCKETT answered that she had not heard that concern. "I think that, obviously, the 303(d) and 305(b) Water Quality Assessment Report has been a rather contentious issue since the state started conducting that analysis in the late 1980s. The most recent review that the state has done, the DEC did a very good job of identifying waterbodies as being candidates for inclusion of the 303(d) list, they are taking a much closer look at criteria and the data that they have on these waterbodies before they actually put them on that list." She said she could not address the litigation aspect, but said DEC has elevated the standard that they are now using. She said before DEC puts a waterbody on the 303(D) list hard data and good information should be provided to justify listing that waterbody. Number 753 CO-CHAIRMAN GREEN announced the arrival of Mr. McLean on the network. Number 790 MS. CROCKETT referred to Section 3, line 14, and said it addresses the Imhoff Cone requirement. She said Section 3(b)n regards measurement by EPA approved methods to determine compliance with permit limitations. She added that the state should use EPA methods for determining compliance in all cases because they have gone through significant review and examination before they were implemented. Number 842 REPRESENTATIVE ALAN AUSTERMAN asked whether the EPA standards are tougher than the state of Alaska standards. Number 853 MS. CROCKETT said the state rules are consistent with the federal rules to remain in compliance and said the state could not keep its programs unless the rules were, at least, as stringent as the federal requirements. Number 876 ROBERT F. McLEAN, Habitat Biologist, Habitat and Restoration Division, Alaska Department of Fish and Game, was next to testify. He asked for clarification about the state moving toward a dissolve parameter for toxins and metals. He said EPA's criteria is, currently, totally accountable. He asked, to what extent would putting this parameter in statute limit the state's ability to go to a representative analysis of metals. Number 911 REPRESENTATIVE ROKEBERG felt Mr. McLean was addressing the arsenic situation and how that fits in with (indisc.). Number 923 SUSAN BRALEY, Section Chief, Water Quality Technical Services, Division of Air and Water Quality, Department of Environmental Conservation, replied that she had just received CSHB 342 and had not had the chance to look at it and fully assess the language to see how it would fit with the DEC's statutes. MS. BRALEY said that she was not sure how to answer Mr. McLean's question at this time but she could check with DEC staff and respond. "Right now, what we are doing with the water quality standards, we are doing a lot of evaluation and a lot of research. There was a question raised about total suspended solids and whether we need a standard in Alaska. I do not believe that EPA has a standard for suspended solids. They have monitoring requirements but I do not believe that they have an actual standard, but I would need to check with my technical staff. We do not, at this time, our standard for sediment, in the water quality standards, is a settleable solids method using the Imhoff Cone method. During the Sierra Club Legal Defense Fund (SCLDF) petition that was filed in January, they raised questions about whether the state needed to have total suspended solids. They actually were suggesting that we need to go back and make immediate changes to the regulations to include total suspended solids." Number 1054 MS. BRALEY informed, "What we committed to in August, when the Governor's Office met with four representatives of both development and environmental groups, we agreed to do a study and come out with a report in July on the need for a total suspended solids criteria and the other thing we are researching is the need for particulate petroleum hydrocarbon criteria. Both of those studies have been delegated to staff who have expertise in that particular area and we are actively working on it now." Number 1086 MS. BRALEY said, "I can't say, to answer Mac's question, whether or not the language in the proposed committee substitute would preclude us from coming up with a system that works better in Alaska." She said she could not see any immediate problems with having a statement that says, "we shall use methods approved by the Environmental Protection Agency." She deferred to Ms. Crockett and asked if that issue was directly related to the petroleum hydrocarbon criteria and the methods that the DEC cited to be used. Number 1125 MS. CROCKETT responded, "It is not directed, specifically, at that but (indisc.) entire water quality regulations. We just believe that there is no reason to spend a lot of time and effort identifying other methods when we have EPA approved methods which has gone through significant review and drill, if you will, that would serve our (indisc.) use as well. Number 1152 MS. CROCKETT said the language in CSHB 342 suggests that state regulations be no more stringent and consistent with the federal regulations. She said the language provides a mechanism for situations where the state might want to have a more restrictive standard or a standard that is not included in federal regulations. She said these testing methods fall into the same caveat and cited the example where the state identified a standard, that the federal government did not have test for a sample. She said the language in CSHB 342 would allow the state to do this as long as the state went through a demonstration process. MS. BRALEY said the DEC, currently, has this ability in the water quality standards. She said DEC cites the standard methods for the examination of water and waste water. She said, where applicable, DEC has made specific recommendations on a particular method of testing for that criteria. CO-CHAIRMAN GREEN said if CSHB 342 specifies some tests and does not specify other tests, he asked whether the state was in jeopardy of possibly limiting the range of tests. He said if you have a huge list of tests, sometimes the omission of one test leads to the conclusion that the test is no longer admissible. He asked if limiting the language, to be consistent with the federal government regulations, would be the best choice in this situation. Number 1262 MS. CROCKETT referred to the amended Section (a) which requires that all of the methods, the state uses, be approved by the EPA. She said this language would meet AOGA's concerns. CO-CHAIR GREEN announced, for the record, that Representative Davies and Co-Chair Williams joined the committee meeting for the record a "while back." REPRESENTATIVE DAVIES asked if Ms. Crockett would be resistant to language covering a circumstance where the state had a standard, which the EPA did not have, and DEC placed the rationale for using the different standard in writing. MS. CROCKETT said that language would be acceptable to AOGA and suggested that it could be added to Section (f) which addresses the situation where the state would want to adopt a more restrictive standard or a standard which the federal government does not have. Number 1345 REPRESENTATIVE ROKEBERG referred to testimony where there are some standards where no "standard" exists for them. CO-CHAIR GREEN said language could be inserted to avoid getting into that problem. Number 1373 MS. CROCKETT referred to page two, line four, and said the amendments that were suggested for that section applies to lines 4 through 13. She said the first amendment reads, "except for a water body that addresses the situation that we talked about a few minutes ago with the two amendments on the previous page." She said the rest of the changes, suggested for this section, alter the terminology to make it consistent with the concerns raised by DEC. She said AOGA also suggested paragraph two, and said this paragraph is not necessary if the other proposed amendments are adopted. She said there would not be a case where permit limits or standards would be more restrictive than the applicable federal requirements, except those that had gone through a demonstration process. Number 1430 MS. BRALEY expressed concerns with carrying the EPA 303 (d) list in the statutes. She said Section 303(d) of the Clean Water Act says that the state must come up with a list of waters which currently are not meeting water quality standards because the controls in place are not cleaning up that water. The Section 303(d) then requires, in regulation, that the state do a Total Maximum Daily Load Allocation (TMDLA). She said the TMDLA is done on specific water bodies. Number 1548 MS. BRALEY said the EPA had a lofty goal, with the Clean Water Act, of wanting all the waters in the nation cleaned up by the year 2000. She said the original EPA method to get there was through the National Pollutant Discharge Elimination System (NPDES), a permit program which requires any person that discharges into a water of the United States to get a permit, unless the EPA deems it unnecessary. She said the NPDES did a good job of issuing permits and putting controls on industries, but the EPA found that waters were not getting cleaner even with controls in place and a good faith effort by industries to meet their permit. MS. BRALEY said, as a result, Congress then created Section 303(d) which said, in those situations where a water body wasn't meeting water quality standards, even though permits and controls were in place, a TMDLA method would be utilized. She said the EPA would collectively look at the water body, all the industries within the water body, and do a TMDLA for the possible pollutants being discharged. She said, through the TMDLA process, the EPA would allocate the amount of discharge pollutants each industry, within an area, could discharge to allow the water body to improve. She said Section 303(d) was originally a point source discharge program, but since then EPA has realized that where a lot of pollution is coming into the water, you have non-point source discharge where there is run-off coming from roads, agriculture and other land use activities. She said non-point discharge is not easy to prevent. MS. BRALEY said EPA took the Section 303(d) list and turned it into a broad, undefined list. She said, for her, it has lost the meaning of the TMDLA because there is not a concrete amount of pollutants that can be discharged, because of undefined pollutant sources. She said, in Region 10 EPA, states are required to submit 303(d) lists every two years. She said in 1992 and 1994, the state of Alaska submitted a list of 39 water bodies that met the definition of a 303(d) TMDLA. She said EPA was being sued, in Idaho in 1994, by trustees or an environmental group which said that the state of Idaho wasn't doing a good enough job of developing the list of identified waters, which either had water quality problems or were threatened by some impending development. She said Idaho came out with a list of 150 water bodies, EPA, because of the lawsuit, disapproved of the list and required Idaho to go out and examine every water body which they had any kind of information on. She said the result, of that process as well as the result of the lawsuit, was that the Idaho list increased to 900 water bodies which incorporated the worst case scenario. MS. BRALEY said the same situation happened in Washington and Alaska. She said the EPA disapproved of the DEC's 303(d) list and required the state go out and examine 130 water bodies. She said the state had other lists of water bodies, but did not put them into the 303(d) list because DEC did not feel they met the criteria. She said, as a result of the public process which included a year of working with EPA, DEC finalized a list in 1994 of 56 water bodies. She said this list means something different to everyone she talks with. For the industry, getting a water on the 303(d) list it means that they are not going to get to do what you want to do. The perception by some environmental groups is that once a water body is on the 303(d) list it does not allow industry to do anything. She said she perceives it as a place where there are problems which need to be addressed and the list is a tool to use when working with industries, communities and land use developers to get everything back on track. Number 1835 MS. BRALEY said on Monday, April 1, 1996, DEC will be turning in the 1996 303(d) list to EPA. She said she is trying to defuse all the different perceptions regarding the 303(d) list. She said it is important for DEC, the public and the industry to have the 303(d) list as it recognizes that there are problems being addressed and said a problem was that once waters were on the list, no water body was ever taken off the list. She said DEC received guidance from EPA, in November of 1995, that if DEC had an approved TMDLA, which the state of Alaska has changed to a Water Body Recovery Plan, the state can put the water body on a tracking list to monitor it. She said DEC is going to take those water bodies off the list where there is evidence of improvement. Number 1916 MS. BRALEY expressed concern regarding the language in CSHB 342 and referred to the comment about the hard data which should be needed to put a water body on the list. She said, quite frankly, in the state of Alaska, we will always be data poor, we will never have enough information to trully make a decision, for example, I think you could turn that argument right around and say, when can you pull something off the list if you are not quite sure that it is meeting water quality standards." She said you can look at the controls in place, whether DEC is working with the industry to monitor them or to take them off the list. She said putting the 303(d) list in statute elevates it and potentially makes it broader because, in some people's opinion, if a water body is not on the list no one is going to pay attention to it. She said that perception is not true and said a good system is being put into place which would allow DEC to make improvements, track where improvements are being made and make the 303(d) list work like it should. Number 1974 CO-CHAIR GREEN asked if glacier feed streams where selected to be on the 303(d) list because of their natural turbidity. MS. BRALEY said no streams were selected because of naturally occurring conditions. CO-CHAIR GREEN clarified that many streams had man-induced sediments. Number 2019 MS. BRALEY said his statement was true. She said one of the criteria that DEC looks at, when a water body goes on the list, is whether or not it is human induced. She said DEC has gone through some deliberations regarding abandoned mining streams where EPA feels that manganese is coming off a stream, caused by a mine that was abandoned 40 years ago. She said this situation falls into a grey area, because if there is reclamation that can be done because the activity, which caused this mineralization, was human induced. She said DEC carefully evaluates the situation to determine and evaluate other streams in the area to see if manganese is naturally occurring versus human induced. Number 2055 MS. BRALEY said DEC had several streams that were identified in the Anchorage area for fecal coliform which is an indicator that septic systems are failing. She said DEC worked with the municipality of Anchorage to look at where there were septic systems, in the identified water bodies, which might have public sewage treatment going through. She said it was determined that the fecal coliform was caused by migrating water fowl and those identified water bodies were taken off the list. She said there are still two water bodies that are still on the list, because those water bodies have more septic systems than another area. She said this is an example where DEC is not including a water body if the pollutant is naturally occurring. Number 2107 CO-CHAIR GREEN said the name change to Water Body Recovery Plan indicates that something needs to be fixed rather than a water body that needs to be watched. He asked if there was a name that was perhaps more "user friendly." Number 2123 MS. BRALEY said DEC was open to suggestions regarding this name. She said there is baseline criteria which is used to develop a Water Body Recovery Plan. She said Hammer's Slough in Petersburg had been identified as an area of concern by the EPA, due to a complaint by a staff person from the DFG. The staff had noticed sediment coming into the creek from the airport. She said DEC did a field study, met with the DFG and the city manager. She said DEC determined that there was some sediment washing off of an area where timber harvesting had occurred. She said three things were identified which could be done to prevent this sediment and said after two days, DEC left with what they felt was a good Water Body Recovery Plan after receiving commitments from both the city and from the DFG. She said DEC will track this situation this summer and will visit the site at the end of the summer. Number 2198 MS. BRALEY referred to another Water Body Recovery Plan on Birch Creek out of Fairbanks which has taken several months. She agreed that DEC needs to show the steps that are done to formulate a Water Body Recovery Plan. She said with some water bodies you might stop at step one and with others you might need to go down to the tenth step. CO-CHAIR GREEN suggested changing the name to Water Quality Control Plan. REPRESENTATIVE DON LONG referred to the original listing of 30 water bodies which was revised to 110 water bodies. Number 2231 MS. BRALEY said DEC had a list of suspect water bodies where someone had given DEC information that there might be a problem regarding them. She said DEC also had a list of impaired water bodies where DEC sees water quality problems but doesn't think there need to be any additional controls as it might relate to an enforcement issue. She said EPA required that DEC come out to the public with a much broader list to give them the opportunity to comment on waters that the public might not have otherwise seen. She said the public comment on those 130 water bodies derived a list of 56 water bodies. Number 2289 MS. CROCKETT questioned the use of the EPA approved 303(d) Impaired Water Bodies List. She said AOGA's interest is to make sure that there is a provision for a qualifier, contained within CSHB 342, which recognizes that there are water bodies which could not take the additional load from discharges and that a more restrictive standard needs to be in place for those water bodies to bring it back up to par. She said another interest of AOGA is that there is not an inclusion of a phrase, which gives the opportunity to impose stricter limits, if there is a thought that the water body might be impaired. She said there should be some standard, justification or measurement for having a water body in that category and said it should not be in that category because someone suspects that there is a problem there. She said language should be found which makes sense and doesn't perhaps raise the deterrents but has some technical justifications for it. Number 2347 MS. BRALEY said the original intent of HB 342, on her reading, was that the state did not want to force water quality standards on a stream which has a pollutant but the discharge is naturally occurring rather than human induced pollution. She cited Red Dog Creek as being the prime example where you have natural ore body water washing out into a stream. Number 2386 MS. BRALEY said she appreciated the changes submitted by AOGA regarding the language that the commissioner might not offer more restrictive water quality for discharged water than the existing quality of the receiving water. She suggested changing the language from "existing" to "natural quality" in order to get away from what the state does not want. She said DEC is in wholehearted agreement that they don't want to prevent a glacier from putting sediment into a stream or a river. She said the intent at DEC is that human activities and industrial discharges are not putting human induced pollution into a stream that is not naturally caused. Number 2431 REPRESENTATIVE ROKEBERG referred to the CSHB 342 (O&G) and said the language there had no consideration for receiving water if it had been substantially polluted. He suggested that a standard be found. TAPE 96-44, SIDE B Number 0000 REPRESENTATIVE ROKEBERG said there seemed to be a problem because the words being used had certain meanings by the people in the field. Number 0037 MS. BRALEY said EPA told the DEC that they would disapprove their regulations if they did not include an anti-degradation policy. She said the anti-degradation policy requires states to allow pollution to occur right down to the edge of what the water is going to be able to handle. She said the policy says, in part, is that water with natural characteristics of higher quality than the water quality criteria must be kept within the existing quality and includes a provision of an applicant coming in with a particular variance. She said, basically, EPA recognized that the state has waters of high quality and they should not be degraded down to the point where they are still meeting water quality standards, but are no longer in pristine condition. She said the state would probably have conflicts with the federal requirement and state regulation, which was put in because of the EPA and the Clean Water Act required it, regarding this high quality waters which needed to be considered. She said a perception that the 303(d) list of waters is the only thing that is going to be considered is inaccurate. Number 0142 MS. CROCKETT said she was familiar with the anti-degradation policy and that it was adopted by DEC September of 1995 and became effective under the Alaska regulations on March 15, 1996. She said AOGA would not have any concern with changing the two existing references from "existing" to "natural" and said that was the initial intent of the language. Number 0173 REPRESENTATIVE ROKEBERG said the Mining Association recommended the insertion of "natural" into CSHB 342. He asked for information regarding the Congressional reappeal of the anti-degradation policy. Number 0225 MS. BRALEY said nothing is concrete regarding this change, but there have been rumors regarding this and another rumor regarding a change in the arsenic standard. In the January of 1995 regulations, DEC included two provisions in the anti-degradation policy. She said DEC did not include the third provision, regarding the Outstanding Natural Resource Waters (ONRW), in the regulations. She said the reason DEC did not add this provision at the time was because the Department questioned how an Outstanding Natural Resource Water would be determined and what would be the significance of doing so. She said EPA was insistent that if DEC did not include this third provision they would be in violation of the Clean Water Act. She said it was this third provision that came into effect in March of 1996. Number 0256 CO-CHAIR GREEN referred to a situation which occurred in California regarding natural seeps and asked how the DEC would compile data to determine whether or not it was natural and then questioned the expense. Number 0303 MS. BRALEY said this situation identifies a gray area where DEC has to work on a case by case basis with the particular water body or industry in question. Number 0313 CO-CHAIR BILL WILLIAMS asked for information on the anti- degradation policy. Number 0344 MS. BRALEY referred to a handout title, "The Alaska Water Quality Standards 18 AAC 70," and apologized for bringing the January 4, 1995 regulation as it does not include the March 15, 1996 anti- degradation clause. She referred to page two, subsection (c), and said it explains the anti-degradation policy. CO-CHAIR WILLIAMS said Ketchikan Pulp is made to discharge pristine water and asked if this section of the water quality standards addressed this particular concern. Number 0393 MS. BRALEY said the anti-degradation policy has some steps to determine that clause and said that the scenario mentioned did not appear to fit the situations that the anti-degradation policy would address. She said the anti-degradation policy addresses the water body that the discharge is going in to. She said, regarding the Ketchikan Pulp Company, the discharge the mill puts out, through their process and the chemicals that they use, is considered a toxic pollutant. She said a portion of this water is not allowed to be released and it is this portion that causes the most concern. MS. BRALEY said despite the fact that the water the Ketchikan Pulp took in might not have been pure because of turbidity, sediment or color the company is still putting more pollutants into that water and then discharging a different type of human induced pollutant. Number 0504 MS. CROCKETT resumed her overview of CSHB 342. She referred to page two, line 14, subparagraph (d), and said it requires DEC to review the state water quality standards and requirements to insure that they are consistent with the federal standards within 12 months to the date of enactment of CSHB 342. She said subparagraph (e) requires DEC to amend the state regulations within 12 months of any amended federal regulations so, if the federal standards were changed or decreased, the state would have 12 months to amend its regulations to bring it into a consistent format with the federal requirements. Number 0563 MS. BRALEY said all states are required, every three years, to do a triennial review of their regulations under the Clean Water Act. She said the purpose of this review is to look at the state and federal regulations that have been promulgated and then have the state determine whether the new federal regulations are appropriate and which things should be put out for public review. She said many new regulations are promulgated and the reason for the triennial review is that the federal government realizes that every now and then the process must stop in order for the states to realize what has been occurring. Number 0630 CO-CHAIR GREEN expressed concern over having to wait for a three year evaluation. Number 0657 MS. CROCKETT said an alternative to the language might be to say "as of January 1, of every year DEC will amend its regulations to be consistent with the EPA regulations that were effect as of January 1." She said this language might allow a yearly review. Number 0710 MS. CROCKETT referred to paragraph (f) and said it allows the state to adopt standards and methods that would be more restrictive than the federal requirements or for situations where there is no corresponding federal requirements, if the state went through a demonstration process. She said the rest of CSHB 342 is taken from AS 46.14, the Title 5 Air Legislation. She said the only changes to this language is to change "air" to "water" and to eliminate the provisions within the air statute that are air related. She said the air statute was developed in draft form by the air quality legislative working group which had representatives from the environmental community, the oil and gas industry, other industries, municipalities and DEC. She said this air legislation was presented to and passed from the legislature three years ago. She said this is a tried and true process which requires a demonstration of the need for the more restrictive standard through peer review and DEC findings on why those more restrictive standards are appropriate for the state. Number 0777 CO-CHAIR GREEN asked if this was a process rather than a particular pollutant. MS. BRALEY said that language is "probably not a bad idea." Number 0791 REPRESENTATIVE ROKEBERG said this would be an excellent way to accomplish something that the state wants to do in a way that provides more flexibility and a higher standard if the facts warrant that higher standard. Number 0806 REPRESENTATIVE DAVIES questioned the demonstration project as to what it required and also what is accomplished. Number 0840 MS. CROCKETT referred to page three, line 25, and said the demonstration would require that the state to apply an exposure profile and hydrological conditions or the discharge characteristics require a more restrictive standard in order to protect (indiscernible) the environment. She said this demonstration requires technological feasibility and a written analysis of the economic feasibility of the proposal. She said it goes on to require that the proposed standard go through a peer review process with three independent consultants, retained by the state, who would have no financial or personal interest in the proposal. She said all of these prepared documents would be brought before the public along with the proposed rule for comment before it would be adopted by the state. She said this process is not directed towards a particular water body, but towards a water quality standard or method. Number 0888 MS. BRALEY said she was not familiar with the air program, but said she would talk with the director to find out if this process works and if it is effective. She asked if this process is just for those regulations where the state might want to be more restrictive and not for all the regulations. Number 0915 MS. CROCKETT said this process would apply to two situations; standards that the state would like to have that are more restrictive than the federal standards and standards that the state would like to have that are not addressed by EPA standards. CO-CHAIR GREEN clarified that all other regulations would be comparable to the federal regulations. Number 0939 MS. BRALEY referred to the language, "consistent with or not more restrictive" and said DEC did not want to be in a position of having to adopt or be consistent with the federal government if DEC determined that the federal guidelines do not fit the state of Alaska. She said arsenic is the best example as there is so much naturally occurring arsenic in the state, a situation which is sometimes hard for the federal government to understand. She encouraged the committee to think about this example and the fact that when she reads, "consistent with," she assumes that the state adopts what the federal government requires. Number 1000 MS. BRALEY said DEC has adopted 6,000 pages of federal registers that are all EPA criteria, most narrative and some numbers. She said DEC is following the federal guidelines to the degree the DEC feels it needs to be in statute. She said the state needs to give itself some flexibility to not be consistent with the federal government. Number 1019 REPRESENTATIVE AUSTERMAN expressed concern over the fact that the state would have more restrictive standards than the EPA standards, especially when some of the EPA standards are higher than the public wants. CO-CHAIR GREEN said it depends on the particular pollutant. Number 1093 MS. BRALEY said there might be circumstances in Alaska that meet the criteria that Ms. Crockett mentioned and said this situation might be something that is not recognized under federal regulations. She said this substance might cause a pollution problem which becomes a health issue where the state has strong concerns. She said this is an example where the state might want to have a higher criteria than the federal government. Number 1137 MS. BRALEY said the state set their human health criteria risk level at ten to the minus five, yet the state must fall back to national defaults. She said the national default fish consumption rate is something like 4.5 pounds per year. She said one of the strong arguments raised, from throughout the state, is that the state in compiling their human health criteria number was using a national default number that was lower than what was true for the state. She said this might not be the best example, but it is an example where we, as a state, want to be stricter on something that has been set at the national standards. Number 1160 MS. BRALEY said there could be circumstances where the federal government does not consider it important to the nation as a whole, but it is a circumstance of which Alaska has concerns. Number 1196 REPRESENTATIVE DAVIES said that this language identifies the exceptional case which would have other language attached to it. He said it, would more likely, be a case where EPA does not have a standards at all. Number 1247 REPRESENTATIVE BARNES referred to the Anchorage discharge water and said her understanding (indiscernible due to coughing) and may have happened more than once, but the water that Anchorage discharged was cleaner and the municipality had to make the water more dirty before the municipality could discharge that water. She asked if this situation occurred because of a state or a federal standard. MS. BRALEY said she was not familiar with the circumstance described. She said, because of her position, she touches on some of these issues that are being dealt with in the field offices of DEC. She said the issue with the municipality, as she understood it, had to do with a natural occurrence regarding arsenic. She said the municipality had to take arsenic out of the water, even though the source they were getting it from had naturally occurring arsenic. Number 1291 REPRESENTATIVE ROKEBERG said the mayor had to introduce tailings from a fish processing plant in Anchorage in order to meet the effluent discharge standard. Number 1304 MS. BRALEY said she would follow up on this situation although she said she could not speak for what had happened. She said what is ridiculous and unreasonable is not a part of what DEC should be doing. Number 1338 CO-CHAIR WILLIAMS said one of the problems industry has is when the state standard is higher than the EPA standards. He asked if DEC had a problem with the peer review language that was suggested. Number 1374 MS. BRALEY said she thought "peer review" would need to be defined in the language to insure objectivity. She said she would support a peer review process which got down to the involved issues rather than political issues. She said a failing of DEC in the past is that well-intended staff have not made the effort to get all the information to make a determination. In some cases, decisions have been made without all the available information. She said the bottom line of CSHB 342 is that these regulations are technical, complex and extremely important to the state, but that the state cannot be operating in a vacuum and concluded that she would support a peer review process that was not "politically identified." Number 1508 CO-CHAIR GREEN referred to several points in the language of CSHB 342 which needed to be clarified including the 303(d) situation in Sections 1 and 2, the more or less restrictive issue, the 12 month versus a three year review of federal changes issue, the concern about specific cases where the state might want to be above or below the federal standard, as well as looking at the sewage effluent discharge in Anchorage and coming up with a definition of peer review. Number 1578 REPRESENTATIVE DAVIES said there was also the issue of "existing" versus "natural." Number 1597 REPRESENTATIVE ROKEBERG said CSHB 342 might want to include language regarding a lower standard in the state. Number 1651 MS. CROCKETT concurred that language would not want to be included which would do anything inadvertently that would not allow the state to do something that was less restrictive than the federal government. CO-CHAIR GREEN asked that DEC, AOGA and the sponsor review these points to clarify them over the weekend to resolve them by Monday morning. Number 1692 REPRESENTATIVE DAVIES said another issue involved the EPA approved methods, specifically found on page one, line 17. He said language could be included that such a method exists first and secondly that if the state placed in writing a reason for deviating from that standard. REPRESENTATIVE ROKEBERG asked Representative Davies to help him on this point. Number 1755 ROBERT F. McLEAN, Habitat Biologist, Habitat and Restoration Division, Department of Fish and Game, testified via teleconference from Fairbanks. He referred to Section 1 of CSHB 342, and said given that the DFG does not condition its permits with numerical and (indiscernible) limitations. He said, in the permitting process water quality issues are deferred to DEC. He asked what CSHB 342 was trying to address in terms of the DFG permitting program. CO-CHAIR GREEN clarified that CSHB 342 addresses water quality rather than "critters." MR. McLEAN said Section 1 includes the provision that would relate to DFG and asked what was trying to be addressed in this section. Number 1867 REPRESENTATIVE ROKEBERG said CSHB 342 attempts to have all the Departments in the Administration consistent in the application of the statute and policy in a coordinated manner. ADJOURNMENT There being no further business to come before the House Standing Committee on Resources the meeting was adjourned at 9:37 a.m.