Legislature(1995 - 1996)

03/29/1996 08:10 AM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                               
 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                 
 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                  
 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                  
 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                   
 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                  
 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              
 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             
 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                    
 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            
 CO-CHAIR GREEN suggested changing the name to Water Quality Control           
 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                 
 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                
 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                  
 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               
 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             
 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           
 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                 
 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              
 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           
 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               
 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                       
 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              
 CO-CHAIR GREEN asked that DEC, AOGA and the sponsor review these              
 points to clarify them over the weekend to resolve them by Monday             
 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               
 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                 
 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.                               
 There being no further business to come before the House Standing             
 Committee on Resources the meeting was adjourned at 9:37 a.m.                 

Document Name Date/Time Subjects