Legislature(1995 - 1996)
04/17/1996 08:04 AM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE April 17, 1996 8:04 a.m. MEMBERS PRESENT Representative Joe Green, Co-Chairman Representative William K. "Bill" Williams, Co-Chairman Representative Scott Ogan, Vice Chairman Representative Alan Austerman Representative John Davies Representative Pete Kott Representative Don Long Representative Irene Nicholia MEMBERS ABSENT Representative Ramona Barnes COMMITTEE CALENDAR Confirmation hearing Michele D. Brown, Commissioner, Department of Environmental Conservation. - CONFIRMATION ADVANCED SENATE JOINT RESOLUTION 37 Urging the United States Congress to give an affirmative expression of approval to a policy authorizing the state to regulate, restrict, or prohibit the export of unprocessed logs harvested from its land and from the land of its political subdivisions and the University of Alaska. - PASSED SJR 37 OUT OF COMMITTEE * HOUSE BILL 331 "An Act relating to mining." - PASSED CSHB 331(RES) OUT OF COMMITTEE HOUSE BILL 342 "An Act relating to water quality." - HEARD AND HELD HOUSE BILL 406 "An Act relating to waste and use of salmon and parts of salmon; relating to permits for and operation of a salmon hatchery; and providing for an effective date." - SCHEDULED BUT NOT HEARD * HOUSE BILL 516 "An Act relating to air quality control." - SCHEDULED BUT NOT HEARD CS FOR SENATE BILL NO. 199(FIN) "An Act relating to environmental audits and health and safety audits to determine compliance with certain laws, permits, and regulations." - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: SJR 37 SHORT TITLE: PRIMARY MFG OF PUBLICLY OWNED TIMBER SPONSOR(S): SENATOR(S) TORGERSON; REPRESENTATIVE(S) Navarre JRN-DATE JRN-PG ACTION 02/12/96 2381 (S) READ THE FIRST TIME - REFERRAL(S) 02/12/96 2382 (S) RESOURCES 03/08/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205 03/08/96 (S) MINUTE(RES) 03/11/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205 03/12/96 2705 (S) RES RPT 6DP 03/12/96 2705 (S) ZERO FISCAL NOTE (S.RES) 03/13/96 (S) RLS AT 11:00 AM FAHRENKAMP RM 203 03/13/96 (S) MINUTE(RLS) 03/25/96 2865 (S) RULES RPT 2CAL 1NR 1OTHER 3/25/96 03/25/96 2883 (S) READ THE SECOND TIME 03/25/96 2883 (S) ADVANCED TO THIRD READING UNAN CONSENT 03/25/96 2883 (S) READ THE THIRD TIME SJR 37 03/25/96 2883 (S) PASSED Y20 N- 03/25/96 2886 (S) TRANSMITTED TO (H) 03/26/96 3360 (H) READ THE FIRST TIME - REFERRAL(S) 03/26/96 3360 (H) RESOURCES 03/26/96 3381 (H) CROSS SPONSOR(S): NAVARRE 04/17/96 (H) RES AT 8:00 AM CAPITOL 124 BILL: HB 331 SHORT TITLE: POSTING OF BOND BEFORE LAND ENTRY SPONSOR(S): REPRESENTATIVE(S) THERRIAULT,Kelly JRN-DATE JRN-PG ACTION 5/03/95 1814 (H) READ THE FIRST TIME - REFERRAL(S) 05/03/95 1814 (H) RESOURCES, FINANCE 04/17/96 (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 03/21/96 (H) MINUTE(O&G) 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 04/01/96 (H) RES AT 8:00 AM CAPITOL 124 04/01/96 (H) MINUTE(RES) WITNESS REGISTER MICHELE BROWN, Commissioner-Designee Department of Environmental Conservation 410 Willoughby Avenue, Suite 105 Juneau, AK 99801-1795 Telephone: (907) 465-5066 POSITION STATEMENT: Agency presentation SENATOR JOHN TORGERSON Alaska State Legislature Capitol Building, Room 427 Juneau, AK 99801 Telephone: (907) 465-2828 POSITION STATEMENT: Prime sponsor of SJR 37 SARA FISHER, Legislative Assistant Representative Gene Therriault Alaska State Legislature Capitol Building, Room 421 Juneau, AK 99801 Telephone: (907) 465-6597 POSITION STATEMENT: Testified on behalf of the sponsor of HB 331 JULES TILESTON, Director Division of Mining & Water Management Department of Natural Resources 3601 C Street, Suite 800 Anchorage, Alaska 99503 Telephone: (907) 269-8625 POSITION STATEMENT: Testified on HB 331 STEVEN C. BORELL, P.E., Executive Director Alaska Miners Association, Inc. 501 W. Northern Lights Blvd., Suite 203 Anchorage, Alaska 99503 Telephone: (907) 276-0347 POSITION STATEMENT: Testified in support of HB 331 MIC MANNS, Representative Paradise Valley Mines Bettles, Alaska 99726 Telephone: (907) 479-5704 POSITION STATEMENT: Testified in support of HB 331 REPRESENTATIVE NORMAN ROKEBERG Alaska State Legislature Capitol Building, Room 110 Juneau, AK 99801 Telephone: (907) 465-4968 POSITION STATEMENT: Offered amendments to CSHB 342(RES) JANICE ADAIR, Director Division of Environmental Health Department of Environmental Conservation 555 Cordova Street Anchorage, AK 99501 Telephone: (907) 269-7644 POSITION STATEMENT: Offered amendments to CSHB 342(RES) MARILYN CROCKETT Alaska Oil & Gas Association 121 West Fireweed, Suite 207 Anchorage, AK 99503 Telephone: (907) 269-8625 POSITION STATEMENT: Testified on CSHB 342(RES) GERON BRUCE, Legislative Liaison Office of the Commissioner Department of Fish & Game P.O. Box 25526 Juneau, AK 99811-5526 Telephone: (907) 465-6143 POSITION STATEMENT: Testified on CSHB 342(RES) ACTION NARRATIVE TAPE 96-57, SIDE A Number 001 CO-CHAIRMAN JOE GREEN called the House Resources Committee meeting to order at 8:04 a.m. Members present at the call to order were Representatives Green, Williams, Ogan, Austerman and Kott. Representatives Davies, Long and Nicholia arrived late and Representative Barnes was absent. CONFIRMATION HEARING - MICHELE D. BROWN Number 065 CO-CHAIRMAN GREEN asked Michele D. Brown, Commissioner-Designee, Department of Environmental Conservation (DEC), to come forward and testify. Number 070 MICHELE BROWN, Commissioner-Designee, Department of Environmental Conservation, said she would provide the committee with an overview of where the department has been and where they are going. The department has a very important role to play, but it was clear to her and former commissioner, Gene Burden, the department needed to pursue their goal in using more updated methods and approaches. She said they had left the era of command and control for environmental management and needed to move toward what she referred to as a "common stewardship of resources" approach. However, the department found they were constrained because of two things: 1) They needed to change their mind set about the business of environmental management; and 2) they needed to have an organization that was conducive to the kind of consistency and accountability that that approach required. They also needed a budget that was clearly capturing the costs of running each program so the cost could be tied directly to the public health benefit achieved to ensure they were buying a product for the budget. Thus, the department was reorganized last year. Number 229 COMMISSIONER BROWN stated the department went from 22 autonomous management units to 6 units which was done to achieve clear accountability through direct management lines. She noted this has helped to eliminate a lot of the regional inconsistencies that had previously bothered some committee members. The department unified program development and program implementation so the people who are applying the laws are also responsible for developing them. This had not been done before and it left the department in a position of not being sure their regulations really made sense when they were applied because they were developed by people who were not applying them. Number 342 COMMISSIONER BROWN noted that by reorganizing, the department was able to save money. The work force was reduced by 5 percent and saved $1.3 million. This savings was accomplished by straightening lines of management, by consolidating administrative functions and eliminating redundancies. When the department was organized in the 22 autonomous management units, program funds were so split up among each of these units it was nearly impossible to tell what it really cost to run a program. By straightening that out, the department got two extra bonuses. The first was that by accurately capturing the administrative cost to run a program, they could negotiate a more realistic rate on the federal monies given to the department. Now they can safely say that because the indirect rate on federal grants is directly linked to program costs, they no longer have general funds subsidizing federally mandated programs. The second bonus was to reduce the spending from the Oil and Hazardous Substance Release Response Fund. The savings totaled several hundred thousand dollars. The reason for that is when the costs were not accurately pinpointed to each program before, they found the fund was in some cases paying more than its fair share. So they were glad to take actions that would protect the fund for its intended response use. That was the physical part of the reorganization. She reiterated that it straightened management lines, saved money and reduced their dependence on general funds. Even more importantly, it positioned them to implement the change in mindset and direction she mentioned earlier, which is the second phase of the reorganization that is currently ongoing. COMMISSIONER BROWN stated the department needs to move to a primary mission of compliance in technical assistance. Compliance with clean air and clean water requirements will always be necessary, but the department starts with the assumption that the industries operating in Alaska have both the corporate conscience and the corporate technical ability to be able to work with them on constructive solutions for environmental management. She noted that several operating principles have been set up to better define the department's role, three of which she would share with the committee. Number 422 COMMISSIONER BROWN said first is the Department of Environmental Conservation is part of the state's resource management team. Sound environmental management means assisting in the design and siting of operations, which helps avoid environmental problems and opposition to projects down the line. She wants the department to become constructive at the front end of a project; not a roadblock at the eleventh hour. The second principle is the department views themselves as part of the state's overall economic development team. The department is working hard to focus on customer service that strengthens the overall economy, creates and maintains jobs and maintains the quality of air, water and natural resources that attract growth. Studies have repeatedly demonstrated that economic development is in fact strongest where there is the most sound environmental management. By sound environmental management, she didn't necessarily mean the most stringent or the strictest standards, but rather that resources are managed on an interactive, rational and involved approached. Where there is excessive pollution, the economy does decline and the reason for that is because the environment is an infrastructure; it's like roads or electrical services. New economic development can't occur if single operators are using up the entire capacity of the environment to absorb waste or to provide raw materials. For example, a new seafood processing facility could not come on line if existing facilities are discharging so many wastes that there's no ready source for clean water intake. Number 523 COMMISSIONER BROWN said a third operating principle at the DEC is that they are the cornerstone of the state's public health system. People tend to think of the department as more large industrial permitting, but in fact, the lion's share of their work is safe food, pure drinking water, proper waste disposal and better sanitation. Most of these fundamental services are done by local government in the rest of the country but in Alaska, the state retains the responsibility for assuring the basics that are taken for granted in modern life. COMMISSIONER BROWN further stated that to implement these principles, each of the programs has turned to a management by objectives approach to guide their actions. These objectives are focused on environmental results, not on process and not on red tape. The department really wants to see what result their programs are buying, not just how many steps it takes to get to that resolve. The department is hoping to launch a program where they ask industry to join with them in making common objectives so everyone can march to the same direction. She has also asked staff, as they implement these objectives, to get out into the field and establish working partnerships. Sitting in an office and reviewing plans or asking for information will not get them there. The department needs to form coalitions with all the interested parties and get workable regulations to plan to avoid environmental problems up front which can be very costly to correct later and to be creative in problem solving to achieve compliance rather than just demand it. She hoped that committee members were familiar with the department's efforts to accomplish this. Some examples are the Clear Air Act regulations, the EPA general placer mining permit and the water quality standards. All were highly contentious issues that the department is working through cooperatively rather than argumentatively as in the past. Other examples include the cleanup of Sitka's Silver Bay and the military's King Salmon and Pribilof sites which have long been worrisome and serious areas of contamination that are finally being addressed after years of neglect and years of finger pointing instead of looking toward cleanup and solution. Number 663 COMMISSIONER BROWN said another example is the department's seafood program. Fifty percent of the seafood produced in the United States is processed in Alaska and the department inspects the bulk of it. The department has to inspect it in order for the federal government to allow it to move out of state into interstate commerce. This is a major portion of the state's economy and seeing it be a safe and successful venture is their mission, but they found they could also do that by saving money. For instance, the department analyzed the data for Paralytic Shellfish Poisoning (PSP) poisoning and found they could target the requirements more accurately to reflect the periods of risk. As a result, the department adjusted the testing requirements in Kachemak Bay in Southeast and are getting products to market faster without any compromise to public health. COMMISSIONER BROWN concluded that is where the department is heading; the direction and the operating principles. She noted they are not 100 percent there yet. They are working on it, but transitions take time and take some getting used to by everyone; the staff as well as the clients they serve. She thought, however, they had taken a major step in crossing over to a cooperative environmental management approach that brings people to the table in a framework of decision making. It's not always easy nor does it necessarily eliminate conflict, but what it does is make everyone struggle with the responsibility of responsible decision making rather than just blasting each other with rhetoric. She hoped she could count on the committee's support for these goals as they proceed in the process. She invited questions from committee members. Number 779 CO-CHAIRMAN GREEN noted that Representatives Don Long and John Davies had joined the meeting. CO-CHAIRMAN GREEN said that a bill had passed in the Eighteenth Legislature that adjusted the way the 470 Fund was disbursed. He noted there are a lot of non-oil related or at least non-producer related things that are covered out of the 470 Fund and asked if any attempt was being made to find another funding source to help replenish that since the bulk of it is not used from the industry that supports it. COMMISSIONER BROWN responded that on refined product, the department is trying hard to look at some federal grant monies to address the bulk fuel problem so they can reduce the dependence on the 470 account for that. Cost recovery is another avenue. She thought the biggest savings comes from carefully delineating what the programs cost that they're no longer drawing on the fund to absorb the indirect portions. Number 851 CO-CHAIRMAN GREEN commented the reports presented in the Eighteenth Legislature indicated a lot of funds were expended with a notation to the effect that recoup had been dropped or was ongoing, but seldom was there any actual recovery. He asked if that had been improved in Commissioner Brown's estimation? COMMISSIONER BROWN said they have improved the recovery rate, but added that it's not where it should be yet. It is on the way up, but it's not completely there. Number 889 CO-CHAIRMAN GREEN noted there had been some resolutions passed dealing with National Pollutant Discharge Elimination System (NPDES) and asked if there was any possibility of the department establishing primacy in NPDES permitting that would not be international or national waters, but within the state? COMMISSIONER BROWN responded that marketing Alaska as well as the legislative resolutions was an area that people wanted the department to look at. She said the department now has to cost out what it would take to assume that large and expensive program. It would need to be a fee-based program which originally a lot of industry opposed but now is thinking it would be in their interest to do that because they would get the permits a lot faster. She reiterated the department is looking into what it would cost and added they would provide the legislature with an analysis. Number 956 CO-CHAIRMAN GREEN remarked that Commissioner Brown's predecessor's had traveled extensively to areas where they thought there could be pollution that ultimately might have an affect on the quality of either air or water. He asked if Commissioner Brown planned to continue this type of activity? He added, "I'm thinking primarily since we seem to get the prevailing things from Russia that there might be some ongoing dialogue or cooperative effort to help them to prevent messing us up?" COMMISSIONER BROWN responded the department does have cooperative efforts underway; however, it was certainly broader than just the Department of Environmental Conservation. She added they are part of the Arctic Council which is the governments of the Arctic countries. An area that's been one of the most important for the department to work on is the sustainable development aspect of the Arctic Council resolutions. The reason it is important is because the oil and gas development here is undertaken in the sustainable development way, meaning a minimal footprint is left and not all the resources will be used for all time, but not all countries are doing that. She said in order to level the playing field, we're using the Arctic Council as a forum to have all the Arctic countries agree to the principles of how oil and gas development will occur. She stated there are ongoing radiation tracking proposals and noted a change made from the last Administration is that instead of having the monitors in Russia where the activity couldn't be controlled, they are now set up in Alaska so any problem can be detected early on. Number 1065 CO-CHAIRMAN GREEN referred to recent articles indicating that Chernobyl may be a bomb waiting to happen and asked if that was true and if it was something we should be worried about? COMMISSIONER BROWN responded it was hard to gauge. She added that based on her time in Russia, it was hard for the U.S. Government to get a handle on how serious the nuclear power facilities were. There's a strong sense that they are in bad shape and there was a lot of effort being put in to alternative energy programs to encourage Russia to close them down. She noted the monitoring is set up in Alaska so we can have an early warning, but it's hard to gauge how serious a threat it really is. Number 1121 CO-CHAIRMAN GREEN referred to a letter from Marianne See, Director of the Statewide Public Service Division to the consulting engineer on the Spurr Highway which suggests that the legislature had cut funding for septic inspections. He didn't think that was quite accurate. The last paragraph of the letter suggests that the respective legislators be contacted. He wondered if that was a normal procedure in the department and what action took place. COMMISSIONER BROWN said the department normally doesn't do a lot of politicking which may be a problem because people don't know what the department is up to. She referred to the budget cuts and said the domestic wastewater program has four components. One is subdivision plan review where the department reviews subdivision plans to ensure the lots are designed in such a way that they can handle waste systems. Alaska doesn't have many public systems, so the department needs to ensure the lots are configured so each lot can handle a system, preferably a conventional system. Also, the department does on-lot certifications which is when an individual wants to sell a property, a health authority needs to certify that the waste disposal system is working. The department also does plan approvals for unconventional systems or for larger than one home systems and they respond to sewage on the ground. COMMISSIONER BROWN said once the department was reorganized and domestic wastewater was under one program as opposed to bits and pieces in all the management units, they could see what it really cost. She noted they have fee authority for the on-lot certification and fee authority for the on-lot plan approval but there is no fee authority for sewage on the ground because that's obviously not a fee based program. The department didn't have fee authority for the subdivision plan review which was paid for in part by $185,000 in general funds which were cut out of the budget this year. She remarked the department has legislation for authority to charge fees so they can continue to do that function. Without the fee authority and with this budget cut, the department will no longer be able to do subdivision plan review. The letter Co-Chairman Green had referred to was to serve two purposes, the first of which is to notify people who have been relying on the department for the service, that the service will be discontinued as of July 1. She agreed that different words probably should have been chosen for that last paragraph and in the call to action, it probably stepped over the line of good judgment. She does, however, think it was the responsible thing to do to tell people that this service they have depended upon will no longer be provided in the next fiscal year. She pointed out the Administration and the legislature do not see eye-to-eye on the level of cuts, which is no secret to anyone. The department has repeatedly voiced their opposition to this cut; they think it is unnecessary and potentially very harmful to public health and also to the economic interests of property owners. She thought the last paragraph of the letter was probably more of an emotional response that this is an important program that will be gone. She mentioned she would discuss with staff the difference between laying out what is going to happen and a call to action. Number 1375 CO-CHAIRMAN BILL WILLIAMS said he has constituents who have complained about the attitudes displayed by department staff. He referred to the Ketchikan Pulp Company (KPC) wastewater discharge, chlorine free project into the main channel, taking it out of Ward Cove and asked Commissioner Brown what her thoughts were on how that would help the environment and her level of support for the project. COMMISSIONER BROWN replied the department has been working extensively with Ketchikan Pulp Company and with the community of Ketchikan. She noted there were strong opinions on both sides of the issue. The department has been developing a comprehensive approach to working with the KPC to solve both the air and the water issues so the public develops a degree a confidence that their health is not endangered nor is the environment. On the air side, the department is working through a new permit that will significantly reduce the pollutants in the air emissions. On the water side, the department is working with the Environmental Protection Agency (EPA) and the KPC to design the new permit which will move the outfall away from Ward Cove to Tongass Narrows. Also, the department is helping the KPC to design it in a way that there will be a minimum mixing zone and will clearly meet water quality standards when the discharge goes on-line. She noted it is a very complicated facility and the KPC has been working hard to provide the department with the information needed to ensure they are designing a new outfall and a new mixing zone that will not present any problems. Number 1476 CO-CHAIRMAN WILLIAMS asked if Commissioner Brown thought that would make everyone feel comfortable? COMMISSIONER BROWN replied, "Not everyone." CO-CHAIRMAN WILLIAMS asked Commissioner Brown to explain why people wouldn't feel comfortable. COMMISSIONER BROWN thought there was a long history of distrust that will take a number of years to overcome. Also, she thought the more information that got out into the public so people can judge the studies and the analyses, would help people to have more confidence. Number 1500 CO-CHAIRMAN WILLIAMS asked Commissioner Brown what her feelings were regarding what the KPC is doing? COMMISSIONER BROWN responded she thought the company had made major progress. CO-CHAIRMAN WILLIAMS asked if the KPC is taking care of the environment? COMMISSIONER BROWN thought KPC was trying very hard and added that by the time the permit cycles are completed on both the air and water issues.... CO-CHAIRMAN WILLIAMS inquired if Commissioner Brown would "go and wave the flag" that Ketchikan Pulp Company is taking care of the environment. COMMISSIONER BROWN replied when the permits are in place because the department isn't going to issue the permits until they are completely comfortable that KPC is indeed providing.... CO-CHAIRMAN WILLIAMS interjected that usually there are problems with people who are misinformed about what is happening and they are not going to change their attitude. COMMISSIONER BROWN said the department wants to bring the people into the process a little more, which she felt would go a long way toward helping the public develop that confidence. Number 1588 REPRESENTATIVE AL AUSTERMAN pointed out that he is from Kodiak where the seafood industry is very important. He said as a child, one of the problems Kodiak faced was low tide on hot summer days and the EPA and the DEC started requiring discharges into the ocean and set up a reduction plant. The situation on a hot summer day in Kodiak is not nearly as bad now and is getting better every year. Part of the problem, as he sees it, is the level of interpretation of what should be discharged and what shouldn't be discharged. He said, "If a vessel comes in and makes a delivery and they have their saltwater system working where their fish have been stored, that saltwater then gets pumped out of their hull along with the fish and then it goes into the processing plant and then it comes back out as a discharge of water. The current system is set up where body parts, crab shells, etc., are filtered out and taken to the plant. But there is an amount of foam, there is an amount of fish scales that still are discharged into the water." He inquired at what level does Commissioner Brown foresee the department looking at discharge from seafood processing plants? He noted that some of the inspectors feel that foam and scales shouldn't go back into the ocean. COMMISSIONER BROWN said she couldn't answer that at the moment because she wasn't familiar enough with it. She added the EPA issues the NPDES permits and the department certifies them but she couldn't speak to the discharging by vessels. She would, however, look into it and report back to Representative Austerman. REPRESENTATIVE AUSTERMAN said he would appreciate that. He knew that inspectors have looked at the foam coming out of a seafood processing plant and said that it's not acceptable, but any time saltwater is run through a pump, foam is created and it's basically saltwater that's being put back in. Number 1722 REPRESENTATIVE AUSTERMAN said his second question related to a specific problem in Kodiak. After the tidal wave in 1964, there were a lot of areas in Kodiak that sunk five feet in addition to areas that were destroyed. Basically, everything was just covered up. One of the intersections has been scheduled by the Department of Transportation & Public Facilities to be realigned and corrected for a number of years. The reason it hasn't been done is because testing shows refined oil in the ground, but no one is able to define where it is coming from. The assumption of most people who have lived there all their life is that it came after things were buried and covered up after the tidal wave. The Department of Transportation & Public Facilities can't realign and re-pave the intersection because the DEC requires digging out the whole area and remediate the soil. He asked, "At what point in time do we say that the dollar value of what little bit of oil is in the ground can stay there, the area can be paved over and -- basically, we're talking downtown Kodiak where the whole area is paved over anyway; it's not like it's an area where people are going to be digging in it all the time." COMMISSIONER BROWN responded the department has new regulations that are in the process of being scoped out with industry now and will go out to public comment shortly that will allow that type of risk assessment. So instead of the black and white standards that required that it be cleaned to a certain level before moving on, these regulations will allow risk assessment to look at what are the pathways to cause any harm. If there's no drinking water systems nearby or surface water nearby, then it could be cleaned up to an alternative level so it can essentially be encapsulated and just state where it is. Number 1821 REPRESENTATIVE AUSTERMAN said, "Well, I would hope that the risk assessment then takes into consideration what you're really talking about because we're talking about an area like Kodiak whose whole downtown area was destroyed in a tidal wave and then reburied; basically, covered over to start new construction. You could start at that intersection and say that you need to take this little bit out of this intersection but when you continue to dig, you'd probably continue today right down to the water line in the boat harbor. So, I hope that the overall assessment is taken into consideration a little bit more when you're doing your risk assessments." COMMISSIONER BROWN replied it will be and added that DEC could contact the Department of Transportation & Public Facilities on this particular site and see if a plan could be worked out. REPRESENTATIVE AUSTERMAN remarked that according to the Department of Transportation & Public Facilities, they've been held up for about four years trying to work out a plan with the DEC. Number 1863 REPRESENTATIVE JOHN DAVIES noted that a similar problem exists at the intersection of College and University in Fairbanks and the holdup has been "haggling over" which state agency is going to be responsible for the cleanup. The university doesn't care which state dollars go into the project; they just want the project completed. He didn't know the details of this particular situation other than it had been in a half-built condition for a long time. He agreed with Representative Austerman in that there's a certain point beyond which it's not economic to worry about it anymore, but rather get on with some common sense solution to the problem. He remarked there was a similar issue that centers around placer mining and had to do with pumps and discharges. There's a widely held view in the placer mining community that the DEC requires them in many instances to unreasonably discharge cleaner water into the existing water bodies than is reasonable, both with respect to arsenic content and the sediments. He asked Commissioner Brown if that was a major problem in her view and if there were a lot of situations where this is an issue? COMMISSIONER BROWN replied the EPA had just issued their new proposed MPDES general requirement for placer mining and it had triggered a very negative reaction among the miners. The DEC asked EPA to meet with the miners and the department in Fairbanks to work out a permit that the department wouldn't be in a position to certify as well because they had strong disagreements with the proposed permit. The department also believed it was unnecessarily stringent and required a lot of paperwork that didn't buy them environmental benefit, but one of the issues in the new permit is arsenic. She noted that it was a thorny problem because the state's water quality standards set arsenic levels at 50 for drinking water and 36 for aquatic life; these were considered safe discharges. Operators in the state of Alaska are not adding arsenic, unlike elsewhere in the country. This is really just natural occurring arsenic that may be compounded because by increasing the volumes of water where its present, there's a higher level of it. Nonetheless, the state's standards have 50 and 36 as protective of health and aquatic life. The federal national toxics rule then came into play. The department years ago asked EPA not to apply that to arsenic, but they went ahead and did that. She said, "When they did that, they took -- it's a health based standard that they set arsenic levels at extremely low rates and that's the problems the miners are now having. The EPA has agreed to reconsider the arsenic levels because it's a problem in many places of the country that they've now got a requirement under the national toxics rules that you can't even measure to -- it's below detectable limits. So, we're going to be asking the EPA to allow us to go back to the standards that had been set in state law previously before the national toxics rule and until we can actually change all the federal standards to allow that to be the operative one on permits. So, arsenic is a legitimate problem, but it's because of the national toxics rule and we just need to work with EPA to get a common sense resolve on it." Number 2069 REPRESENTATIVE DAVIES said, "The other question I wanted to ask had to do with the vehicle emissions program. As you know, the legislature passed a law recently that allowed for doing the inspections every other year and I think an unintended consequence of that was that or maybe it wasn't -- sufficiently appreciated at the time, was that there are large fixed costs with the program for the Fairbanks North Star Borough. And so we're at kind of a loggerhead now where the borough says that unless you can increase the fees, you can't go forward with the program and I've heard people getting to the point of throwing up their hands and just wanting to give the whole program back to you." He asked Commissioner Brown what the current status was on that issue. COMMISSIONER BROWN said the department is trying to work with Mayor Sampson on the issue. She noted the department had raised those issues in the discussion of SB 28 last year which changed the requirement to biennial. The legislation was passed and the department is proceeding with it. She thought it would require an increase in fees so the fixed costs can still be paid for. The net to the consumer is about the same or it could actually be a small savings to the consumer. There is an option to solving the fixed costs. She thought the mayor was concerned there would be a perception of increased fees that would be unpalatable to his citizens, but the bottom line is the citizens would probably pay a little less on a two-year cycle. She added the department believes this is a local government issue and should be managed at the local level so that it's responsive to local issues. Therefore, the department is not encouraging that it be given back to them. Number 2164 REPRESENTATIVE DON LONG referred to the coastal management program and said the DEC is a regulatory authority and the coastal management is also a regulatory authority in a way that it just takes in public policy. In relation to that, he asked if the DEC would be able to work with the coastal management program with regard to the regulations as to who has priority? COMMISSIONER BROWN responded that in areas where there is more than one agency involved in a permit, including a coastal district, DEGC coordinates it and the DEC works with DEGC to ensure that all the agencies are pooling together. She added if it's a single agency issue, then the DEC has the burden of making sure they follow all of the ACMP processes. Number 2218 REPRESENTATIVE SCOTT OGAN said it had been brought to his attention by a member of the finance committee that there was some disagreement about the budget cuts and the elimination of the subdivision planning program. He asked if there would be no subdivision plat review because of the budget cuts? COMMISSIONER BROWN replied the department would no longer do subdivision plan reviews; they would, however, continue to do the others aspects of the sewage program which she had mentioned earlier. She added that if it's to be done, the local governments would need to pick it up. Local governments have generally depended on the department to do the reviews and in most cases the local government will not sign off on a plat unless the DEC has signed off on it, but alternative systems will be needed. She noted that Anchorage currently does this and Valdez does a large portion of it themselves. Number 2261 REPRESENTATIVE OGAN said he would like to discuss that with Commissioner Brown at some point because there seemed to be some disagreement from a legislative perspective. It has been his experience that often times an agency will eliminate a high profile service that will cause the most public uproar which is sometimes more posturing than reality. COMMISSIONER BROWN said there were two aspects involved. One is that general funds clearly related to this program were cut from the budget in both the House and Senate Finance Committees. The other aspect is the authority to charge fees for it so the department would have sufficient monies with those two sources to enable them to continue the program. When the department went through the reorganization, they found that a lot of other programs, including the 470 Fund, were sort of subsidizing this program. Now the program has to be paid for on its merits; either it's worth doing and paid for or the department can't continue to do it. That's the dilemma the department is currently in. Both the general funds and the fee authority are needed. Without those the department can no longer do it. The department's ultimate hope was because other aspects of the domestic wastewater program are fee based, that this one would also become fee based and they would be able to work with municipalities to transfer them over because it would be a revenue neutral package. Number 2331 REPRESENTATIVE DAVIES mentioned that discussions took place on the Department of Natural Resources' budget with respect to the fee issue. He thought this was another example of the problems the legislature has with budgeting where they actually discourage taking care of real problems because of the program receipts issue. Number 2345 CO-CHAIRMAN GREEN noted that Commissioner Brown and her staff had worked very diligently on trying to get resolution on the air quality regulations that are pending. He asked if Commissioner Brown could give a time estimate of finality. COMMISSIONER BROWN said the department has finished the packet of regulation changes that EPA required of them and after a long, protractive negotiations process, the package is getting finalized on the regulation changes that the stakeholders groups had worked out with them. She hoped those would go out within a week as long as no new issues came up. Now that it has gotten down to the fine issues, she had urged the stakeholders to let them go out to public notice where those fine issues could be addressed. Number 2390 CO-CHAIRMAN GREEN thanked Commissioner Brown for her testimony and asked if there were any other questions for Commissioner Brown. Hearing none, he asked the wish of the committee. Number 2401 REPRESENTATIVE DAVIES moved to forward the consideration of Michele Brown, Commissioner, Department of Environmental Conservation to the joint session. SJR 37 - PRIMARY MFG OF PUBLICLY OWNED TIMBER Number 2414 CO-CHAIRMAN WILLIAMS accepted the gavel from Co-Chairman Green and announced his intent to move SJR 37 from committee today. Number 2425 SENATOR JOHN TORGERSON introduced SJR 37 stating that its purpose asks Alaska's Congressional delegation to exempt Alaska from the commerce clause which prohibits primary manufacture in the state on publicly owned timber. SENATOR TORGERSON said, "In 1990, Congress did adopt the Forest Resources Conservation and Shortage Relief Act, which gave 11 of our western states the exemption from the Commerce Clause, but for whatever reason, Alaska was not included in that piece of legislation." SENATOR TORGERSON explained, "The spinoff of this is, Mr. Chairman that's happened in my district, the state has just recently sold a timber sale there which was purchased by an outfit from Oregon. We also had a sawmill that was shut down recently because of lack of resource coming out of both the state and the Chugach National Forests We lost 140 jobs because of that and the consequences are with this company from ... (CHANGE TAPE) TAPE 96-57, SIDE B Number 001 SENATOR TORGERSON ... "should have been directed toward, or at least, the opportunity of having it go toward the mill for primary manufacture." SENATOR TORGERSON stated, "In 1984, Mr. Chairman, the Supreme Court -- we used to have a primary manufacture law and the Supreme Court struck that down as being unconstitutional because of this commerce clause. We also know that there are pieces of legislation pending before Congress, amendments to the budget bill, etc., that would grant this relief from the commerce clause as it reflects to state owned timber. This resolution asks for the inclusion of municipal lands and also the University of Alaska lands." SENATOR TORGERSON said, "The three key words in this piece of legislation are regulate, restrict or prohibit. It doesn't actually ask for the straight prohibition, it is asking that the state of Alaska have the leeway in the municipality or the university to do one of the three. It could be that they would go ahead and export some or regulate it somehow or restrict it or whatever." Number 053 REPRESENTATIVE DAVIES asked why it took us so long to get to this point. He said he couldn't support this more strongly. Number 061 SENATOR TORGERSON related that his office had been surprised to find this issue had never been addressed before, through a resolution. RON LONG, Seward Port and Commerce Advisory Board, testified from Seward that the organization strongly supports SJR 37. He said, "The exemption that was granted may have made sense at that time but we feel, at this time, that it no longer does. We should have a policy that conforms with the rest of the western states, and we ask the House to go along with the Senate in asking our Congressional delegation to support this." Number 124 ANTHONY CRUPI, Volunteer, Alaska Environmental Lobby, appreciated the opportunity to testify. He said, "The Alaska Environmental Lobby strongly supports Senator Torgerson's resolution. When timber is harvested on state lands, it makes sense to maximize the number of jobs from each tree cut. Exporting logs in the round sends jobs out of our state and hurts the future of sustainable timber industry in Alaska. We strongly support this. We respectfully ask one minor addition. In addition to the state lands, municipal lands and University of Alaska lands, we would like to see `other trust lands' included in this resolution. We hope this resolution is passed in a timely manner, and we urge Alaska's Congressional delegation to assist in passing appropriate legislation in Congress." REPRESENTATIVE DAVIES moved that SJR 37 move from the House Resources Committee with individual recommendations. Hearing no objection, it was so ordered. HB 331 - POSTING OF BOND BEFORE LAND ENTRY Number 202 SARA FISHER, Legislative Aide to Representative Gene Therriault, said that HB 331 simply clarifies that the act of staking a mining claim does not require permission of the surface owner or require bonding where the surface is no longer owned by the state. This ambiguity has the potential of involving the department in resolving disputes from the mere act of staking. Hopefully, HB 331 helps to avoid these potential future costs to the department. She invited questions from committee members. CO-CHAIRMAN GREEN asked if there were any questions of the sponsor. Hearing none, he announced the committee would hear testimony via teleconference. Number 259 JULES TILESTON, Director, Division of Mining & Water Management, Department of Natural Resources, said this legislation was introduced late in the session last year and a support of the bill analysis and a zero fiscal note had been forwarded at that time on the knowledge that this bill would come up again. The division took another look at what they said last year and that position still stands. The division's basic concern is there is a potential situation which could go back to Statehood where mining claims located on property where the state no longer holds the title might be in jeopardy by the mere fact that they did not have permission from the surface owner to go in. The division believes this is an unreasonable and untenable risk. He said, "Accordingly, we not only support the bill, but we do recommend one addition and that is the bill be effective retroactively to the date of Statehood because the basic statute was passed in the first legislature at that point in time. One other thing, posting requires a discovery; discovery does not require in all cases -- you have a D-9 digging up somebody's flower bed as an example. With our remote sensing technologies today, a lot of the discoveries are being done by such things as the aeromagnetic studies in Fairbanks. A lot of claims have been properly located on that method so we're not talking about something where private property is at risk, in my judgment." Number 335 REPRESENTATIVE DAVIES said he understood there was a lawsuit on this issue and asked Mr. Tileston to describe the lawsuit and what the retroactivity would do to that situation. MR. TILESTON said he would give a brief overview. There was a court suit dealing with metal values associated with the AJ rock dump. There had been production and gold recovered from the rock dump prior to the individual (indisc.) to go into staking. There was a dispute between the surface owners and the individual trying to stake the claims. The Superior Court made a ruling that the staking could not take place without the consent of the landowner. It was recently held by the Supreme Court. REPRESENTATIVE DAVIES asked if it was a private landowner who had the land? MR. TILESTON replied, "Yes, it was. It was right there at Juneau." REPRESENTATIVE DAVIES asked if this bill would give permission for people to go on private land to stake mining claims? MR. TILESTON responded the state maintains full and absolute right to the subsurface minerals for any land the state has previously owned. He added that is covered under AS 38.05.125. That reservation is a absolute right for the state to go in; it does not give the absolute right to go in and damage another property and that's what AS 38.05.130 is intended to protect. This bill amends AS 38.05.130 by exempting the physical staking, which is the posting of the corners from the bonding and permission requirements. REPRESENTATIVE DAVIES asked what kinds of things would be permitted under staking? For example, would a person be allowed to clear survey line of sight to put stakes in? MR. TILESTON replied, "No. You could do your line by simply flagging." Number 475 CO-CHAIRMAN GREEN asked, "Are mineral rights for example, say a surface mine, similar to oil rights in that surface damages would have to be paid?" MR. TILESTON said that was true and added AS 38.05.130 requires the consent agreement and bonding for all surface disturbing uses associated with mining. CO-CHAIRMAN GREEN asked if it was Mr. Tileston's feeling that staking would not be sufficient disturbance to cause any damages or need to repay? MR. TILESTON affirmed that. Number 515 REPRESENTATIVE IRENE NICHOLIA asked if a permit was needed to stake a mining claim? Also, wouldn't the individual have to furnish a map of the claim? MR. TILESTON responded that permission was not required to stake which is what was being discussed. He added, "If you are going to do something in the way of using mechanical equipment to actually mine, you are required to have permission for that." Number 551 REPRESENTATIVE DAVIES inquired if there are other instances, apart from the AJ mine situation, where this has been a problem. MR. TILESTON responded no. Number 566 CO-CHAIRMAN GREEN asked Steven Borell to present his testimony. Number 569 STEVEN C. BORELL, P.E., Executive Director, Alaska Miners Association, Inc., testified from Anchorage that a letter of support for HB 331 could be found in committee member's packets. He noted this bill doesn't change anything. It maintains the status quo that the industry and the state has understood since Statehood in that indeed the mining claim could be staked, but no surface disturbance could take place until permission of the surface owner occurred. He said, "That's the hallmark of the past practice, of past interpretation and that's what this bill would maintain in place. It doesn't change anything at all in state practice or interpretation. To comment briefly on Representative Davies' question previously, I agree with Director Tileston that there has not, to my knowledge at least, been any other instances than the one there at the AJ rock dump. However, in your district in particular, are areas where there could very likely be, and I would suspect there will be, instances where say a small surface stake has been - say 5 acres or 10 acres - is held by a surface owner and the mining claim has been staked over a large area, and somewhere off in the middle of this large area is this 5 acre plot. Obviously, before any surface disturbing activity can take place, that individual is going to have to concur in that. But, we just believe it's unreasonable that those minerals which have been reserved by the state would be sterilized, if you will, by the requirement to have to have the permission of the surface owner just for the mere purpose of staking the claim." He invited questions from committee members. Number 677 REPRESENTATIVE DAVIES agreed there were many circumstances in his district where there are even borough subdivisions on top of areas that have valid, and in some cases, patented claims. His concern is that we don't want to set up a situation of introducing unnecessary conflict. It was his understanding that the normal practice is that a person going on someone else's property would at least notify them and ask permission in a polite way, even if not technically required by law. He wondered if there shouldn't be some reasonable notice required to a property owner before a person goes on the property to avoid a situation of unnecessary conflict. MR. BORELL commented he had seen no such conflicts in the past. No one has raised that as an issue and it has not been a concern. He added, "If you will, state mining claims are 40 acres and a 4-inch by 4-inch wooden post, typically a small block of wood with a piece of rebar to drive in the ground, with a block of wood sitting on top of a piece of rebar, that forms a claim for them, so any disturbance that would be caused by an individual placing that 4- inch by 4-inch block of wood and the little aluminum plate that goes on it, I sure can't see that that's any damage." Number 790 REPRESENTATIVE DAVIES said his concern wasn't that damage was being caused, but rather of perceived trespass. He realized this hasn't occurred very often. He questioned why the statute was needed if there wasn't a problem. Also, if the statute was going to be changed in such a way that permits entry onto private property with no requirement of notice or permission, he was concerned about setting up a situation of trespass that could lead to hostilities. MR. BORELL noted that statutory authority is in place currently. The current need is because of the court case. The danger is that if the Supreme Court were to rule that the mining claims on the AJ rock dump were void by virtue of not having permission from the surface owner, all of a sudden throughout the Fairbanks district there would be a multitude of court cases arguing that various mining claims were void because the surface owner had not been notified. He added the problem is not with the status quo; the problem is if the state Supreme Court were to rule that those claims were void. Number 890 REPRESENTATIVE DAVIES said he understood that, but he thought Mr. Borell was avoiding his question about reasonable notice. He asked if there was anything that would be harmful to the mining industry to require some kind of reasonable notice? MR. BORELL responded he wasn't trying to bypass the question, he just failed to address it. He said, "The situation will exist if you have to give notice to someone, a spark - a light bulb is surely going to come on and they will then have pre-notification that your personal energies and time and exploration throughout the district have shown that there might be something valuable. And if they're told there might be something valuable, they are very likely to jump out there right quick and put their own claim corners down. You would expect a prudent person to do that." Number 943 CO-CHAIRMAN GREEN noted that it's an awkward situation when the mineral rights are different from the surface rights. Number 953 REPRESENTATIVE DAVIES commented that perhaps something could be worked out where the notice would prevent the private property owner from staking. He added there should be some reasonable time limits involved, but he thought there should be some way to solve that problem. He was uncomfortable with the notion that a person would expect someone to show up on their property without any notice. Number 980 REPRESENTATIVE OGAN asked if there were lines shot and surveyed when the properties were staked? MR. BORELL responded that currently they are done just by a GPS unit. He added, "You'll position them and there will not be an actual survey until such time as you go to perfect it - as you go to put your -- obviously at a later date - put your operating plan together." CO-CHAIRMAN GREEN asked if there were any other questions of Mr. Borell. Hearing none, he asked Mic Manns to testify. Number 1022 MIC MANNS, Representative, Paradise Valley Mines, testified from Fairbanks that Paradise Valley Mines and Rich Hughes of the Ryan Gold Mine supported HB 331. He noted there are already laws that require that before any surface disturbance by anyone on a piece of property can take place, the person doing that must acquire both bonding and insurance sufficient to pay for any damage or damages. Number 1082 CO-CHAIRMAN GREEN asked if there were any questions of Mr. Manns. Hearing none, he announced that concluded the testimony via teleconference. Number 1096 REPRESENTATIVE KOTT moved a conceptual amendment to make the bill retroactive to Statehood since it appears this is the practice that has been ongoing and understood by not only the industry but also by the Division of Mining. CO-CHAIRMAN GREEN asked if that would add a Section 2 with an effective date. REPRESENTATIVE KOTT said that would allow for the drafters to work it in and it would probably be Section 2. CO-CHAIRMAN GREEN asked if there was discussion or objection to the conceptual amendment? Hearing none, the conceptual amendment was adopted. Number 1138 REPRESENTATIVE DAVIES expressed his ongoing concern about notification and requested the bill be held in committee to allow time to think about an amendment. Number 1174 CO-CHAIRMAN WILLIAMS said in the interest of time remaining in this legislative session, he made a motion to pass HB 331 out of committee with individual recommendations and attached fiscal notes. CO-CHAIRMAN GREEN noted that would allow for an amendment in the Finance Committee. He asked if there was any objection? REPRESENTATIVE DAVIES objected. CO-CHAIRMAN GREEN asked for a roll call vote. Voting in favor of the motion were Representatives Austerman, Kott, Ogan, Williams and Green. Voting against the motion were Representatives Davies and Nicholia. CO-CHAIRMAN GREEN announced that CSHB 331(RES) was moved from the House Resources Committee. HB 342 - WATER QUALITY STANDARDS Number 1274 REPRESENTATIVE NORMAN ROKEBERG, prime sponsor of HB 342, referred to work draft CSHB 342, Version G, and reported that the subcommittee consisting of Representatives Austerman, Davies and Ogan had met and reviewed the work draft dated April 9, 1996. He explained the changes as follows: Page 1, line 7, add: "in writing" by the Environmental Protection Agency. Page 1, line 8, add: "or by substantially equivalent methods approved by the department." REPRESENTATIVE ROKEBERG said, "This is an important adoption right now. It gives the department additional flexibility in terms of looking at the methodologies to be used in establishing the water quality criteria." Number 1342 REPRESENTATIVE ROKEBERG continued to explain the changes. Page 1, line 14, add: "Promptly, but no later than 12 months," REPRESENTATIVE ROKEBERG said, "This particular provision gave a standard to the department that they had a 12-month period in which to make adoptions of any regulatory changes made by the federal Environmental Protection Agency and also added the word `promptly' in case the question was, `why do we have to wait 12 months?' So, the word `promptly' was a spur to do them as soon as possible basically, but also gave them a deadline of 12 months, which we feel is adequate in order to perform that task." REPRESENTATIVE ROKEBERG referred to page 1, line 15, and said following the language, "after the effective date of a change" the original language was "reduction in". REPRESENTATIVE ROKEBERG said, "There has been some controversy about this, but people have to understand that a change can go both ways, a reduction can only go one way. This gives the department additional flexibility to change." Number 1401 REPRESENTATIVE ROKEBERG said the next change was on page 2, lines 2 and 6, delete "reduction", add "change". This relates to the actions on the part of the federal government. REPRESENTATIVE ROKEBERG continued that on page 2, line 10, add "maintain the state's aquatic productivity;". He explained this was done at the request of the Department of Fish and Game to make sure that those considerations were taken into account when applying water quality standards. Number 1436 REPRESENTATIVE ROKEBERG referred to page 2, lines 15 & 16, the words "the natural condition of the water" were inserted. He emphasized this is an important addition to subsection (4) and wanted to remind the committee that in adopting water quality standards, the department "may not require discharged water to be of a higher quality, in a more restrictive use classification, or otherwise cleaner than the natural condition of the water into which the discharge is made." He said this is the receiving water and recalled this goes back to an earlier discussion between the words "existing" and "natural." Natural is intended to mean the natural condition of the water or waterbody, not an existing condition. Whereas, an existing condition could have been a body of water which was polluted by human use and therefore that should not be the standard of the receiving water; it should be the natural condition of the water. Number 1490 REPRESENTATIVE ROKEBERG continued to explain that this is very important to understand that we shouldn't require that a better than natural condition of water be the criterion that the permit is granted under. Therefore, we shouldn't be cleaning up streams that are already dirtier by nature and not by man and that's the distinction. CO-CHAIRMAN GREEN said, "Which could though in some cases be cleaner than is existing." Number 1529 REPRESENTATIVE ROKEBERG referred to page 3, line 4, and said the words "proposed standard or regulation" were clarified. REPRESENTATIVE ROKEBERG said on page 3, lines 6 and 12, delete "exposure profiles" before the words "hydrologic conditions". Number 1541 REPRESENTATIVE ROKEBERG noted that in terms of the review process on page 3, line 16, insert "by August 1, 1997," to give the department adequate time, well over a year, in which to make their review, and then on line 24 the deadline was set starting at the legislation session, January 1, 1998, to report to the legislature about how they have done under this policy. Number 1591 REPRESENTATIVE ROKEBERG pointed out these were the changes made in the subcommittee. He said there was substantial input and he thanked Representatives Austerman, Ogan and, in particular, Representative Davies for their participation. He stated his office received a fax at 7:00 p.m. the previous evening from the Department of Fish & Game. Also, approximately eight minutes ago, he received copies of amendments from the Department of Environmental Conservation. He said based on the importance of this legislation and the lateness in the session and also, after a period of almost two weeks that this bill had been in subcommittee, to receive these amendments at the 11th and 59th hour, he was going to oppose the adoption of those amendments. He noted this bill has a referral to the Finance Committee because of its importance and he would give due consideration to the recommendations and suggestions from the Departments of Fish and Game and DEC as to their amendments. He thought this bill had had sufficient work in this committee and he appreciated the Chairman's interest in it. I believed that Marilyn Crockett was on-line if the committee had any questions. CO-CHAIRMAN GREEN asked whether there were questions of the sponsor or about the proposed changes. Number 1689 REPRESENTATIVE DAVIES related that he had brought to the chair of the subcommittee a couple of concerns yesterday, and wondered if the committee was going to deal with those. CO-CHAIRMAN GREEN had not seen the amendments. Number 1712 REPRESENTATIVE AUSTERMAN apologized, stating that he had not heard back from Representative Davies and had been uncertain whether to pursue them or not. Number 1729 REPRESENTATIVE DAVIES said he wanted to propose three minor changes on page 3. REPRESENTATIVE ROKEBERG interjected that the committee had not adopted the proposed committee substitute, version G. Number 1755 REPRESENTATIVE DAVIES moved to adopt 9-LS1141\G as the working document. Hearing no objection, it was adopted. Number 1785 REPRESENTATIVE DAVIES offered the following amendment: Page 3, line 3, Delete: "prepare a written analysis of" Insert: "consider in writing" REPRESENTATIVE DAVIES explained that the proposed amendment gives the language more clarity with respect to the construction of the language and removes the word "analysis." That is the substantive part of it. The consideration of the economic feasibility would be there. He said, "I think we heard testimony that the department has strong concerns that they do not have all of the economic information because of not having access to the proprietary information of the companies potentially involved. This would allow them to consider the economic, as far as they could, but the consideration might not be described as an analysis." Number 1908 CO-CHAIRMAN GREEN asked for questions on or objections to the proposed amendment. Hearing no objection, it was so ordered. Number 1923 REPRESENTATIVE DAVIES offered the following amendment: Page 3, line 9, Following the word "welfare;" Add: "to maintain the state's aquatic productivity." REPRESENTATIVE DAVIES said this amendment would make the language consistent with the language on page 2, line 10. Number 1963 REPRESENTATIVE ROKEBERG agreed and added the subcommittee had just failed to include that language. CO-CHAIRMAN GREEN clarified that the semicolon would follow the word "productivity." Number 1980 CO-CHAIRMAN GREEN asked if there were any objections the amendment. Hearing none, the amendment was adopted. Number 1991 REPRESENTATIVE DAVIES referred to Sec. 2. REVIEW OF REGULATIONS and suggested that it read, Sec. 2. "TRANSITION REVIEW OF REGULATIONS." CO-CHAIRMAN GREEN asked if there was objection to the amendment. Hearing no objection, it was so ordered. Number 2041 REPRESENTATIVE PETE KOTT referred to page 3, lines 24-26: "(b) the Department of Environmental Conservation shall, by January 1, 1998, report to the legislature concerning its review and proposed revisions required under (a) of this section" and asked the sponsor to explain the intent. He inquired if a briefing by the department to the House Resources Committee would satisfy the report or is it a written report? Number 2069 REPRESENTATIVE ROKEBERG thought a written report confirming their activities would be adequate. He said perhaps a meeting with the House Resources Committee to update them or deliver the report without an exhaustive amount of testimony would be adequate. He didn't envision a major, burdensome and costly situation. The idea is a monitor to check the progress and to see at that time if any statutory revisions were needed or if the department had discovered any problems in the implementation. Number 2139 CO-CHAIRMAN GREEN suggested the date should be January 15, because the legislature doesn't convene generally, until the first week. During Gubernatorial elections, the legislature doesn't convene until the second week. REPRESENTATIVE ROKEBERG assented saying that January 31 may be even more appropriate. Number 2175 CO-CHAIRMAN GREEN confirmed that Representative Rokeberg was proposing an amendment to change "January 1, 1998" to January 31, 1998," which is an addition rather than a deletion. Hearing no objection, it was so ordered. Number 2193 REPRESENTATIVE KOTT reminded the committee that over the last year and a half, the legislature has taken a different approach to annual reports. He said, "I hope that this does not fall into an annual report category, where we are, basically, inundated with another 50-page document that most of us probably will not read in the first place. If that is going to be the case, I'd suggest that we follow similar lines that we have established with annual reports and just have the department make it available to us. If we are going to a written format, I would much rather see the department come before the Resources Committee and just give us an oral briefing on where they are at with the updates." Number 2245 REPRESENTATIVE ROKEBERG pointed out this is a one-time report, not an annual report. REPRESENTATIVE KOTT remarked that he had a number of one-time reports that ended up in File 13, because of time constraints he didn't have the opportunity to sift through 40-50 pages. It's easier when the department comes in with the report and gives a briefing or executive summary in a couple of minutes. He felt it was more meaningful to get that kind of treatment than to have a report dropped on his desk that he wouldn't have a chance to read until the interim. Number 2310 REPRESENTATIVE ROKEBERG stated he had no objection to a language change whereby the report would be submitted to the chairmen of House and Senate Resources Committees. Number 2332 REPRESENTATIVE AUSTERMAN said it was his understanding that changes were made to subsection (b) so that on January 31, 1998, all the legislature wants to know is have those changes worked and is everything going according to schedule; it doesn't say anything about the department submitting a written report. He pointed out that paragraph be moot after January 31, 1998, so didn't see a real problem with that. Number 2379 REPRESENTATIVE KOTT appreciated Representative Austerman's comments and suggested that the committee add language that "the department must brief the House and Senate Resources Committee by January 31, 1998. He just didn't want any more written material...(CHANGE TAPE) TAPE 96-58, SIDE A Number 001 REPRESENTATIVE WILLIAMS contended that the industry reads the written reports and they come before the legislature and tell us how the department is doing. He, too, couldn't read everything that comes across his desk, but industry does read those reports and they do call the legislature's attention to any problems. Number 070 REPRESENTATIVE DAVIES stated, "If the report is made available by that time, we always, in Resources anyway, have the Department of Environmental Conservation in front of us for overviews. It is always the prerogative of the legislative committee to ask for a briefing on a particular topic, in that context, or in the context of a special meeting. I am sure that the DEC would honor that request without any problem. I think as long as the report is there, if we want to hear from them, we can just ask them to come and talk to us." CO-CHAIRMAN GREEN asked if there was discussion or proposed amendments, conceptual or otherwise. Number 136 REPRESENTATIVE KOTT suggested that the Department of Environmental Conservation come before the House Resources Committee by the January 30, 1998. CO-CHAIRMAN GREEN concurred stating that Representative Kott's point is well made. He asked if there were other questions of the sponsor. Hearing none, he announced the committee would begin taking testimony. Number 209 JANICE ADAIR, Director, Division of Environmental Health, Department of Environmental Conservation, noted that she had made a note for January 30th on her calendar. She said, "I do apologize to the bill's sponsor for in delay in getting our proposed amendments to the draft committee substitute. We just received the bill on Monday and it took us a while to look at it with our attorney. The one page that you have, kind of reflects our hallway discussion and includes the concerns of the Department of Fish and Game, as well. MS. ADAIR explained, "What I would like to do is go through the things that DEC has and then I will try to address those from fish and game, but I made need to get Geron Bruce up here to more fully explain them." Number 267 CO-CHAIRMAN GREEN notified the teleconference network that SB 199 would not be heard at this meeting. Number 300 MS. ADAIR began her explanation of the proposed amendments: Page 1, line 12, add: (c) Except when setting standards for shellfish growing areas pursuant to AS 03.05.011 and except as provided in AS 46.03.087" She said, "We propose on page 1, line 12, to make an exception for the standards that the department sets for shellfish growing areas under our authority in Title 3. Shellfish growing areas, by necessity, need to have a more stringent standard, particularly, for fecal coliform. Shellfish are filter feeders, the contamination that may exist in the water accumulates in their viscera. They are eaten raw or only lightly cooked so they do not get to the temperature to kill any bacteria. In order to have a classified shellfish growing area that meets the requirements of the National Shellfish Sanitation Program, fecal coliform and other contaminates have to have a lower level. We just would like recognition here that in those areas, we will have a more stringent standard than what you might find in other, more generally, used waterbodies." CO-CHAIRMAN GREEN clarified that the amendment, as written, would take care of that. MS. ADAIR acknowledged that was correct. Number 376 MS. ADAIR explained the next amendment was on Page 1, line 14. Delete: "Promptly, but no later than 12 months," Insert: "As soon as practicable" She stated, "When the Environmental Protection Agency increases their requirements, they don't necessarily require that we immediately adopt them, or that we adopt them within 12 months. Sometimes, it's alright with the EPA if we just put those into the next round of the permit revisions, which could be as long as five years. We do recognize, though, that if there is a reduction or elimination of a federal requirement that industry would be most interested in having us do that as soon as practicable. We see this as a way to cut that problem. They will certainly be watching us to make sure that we do adopt any reductions or eliminations in federal regulations as soon as we possibly can. But we don't think that we need to also adopt any increases right away or necessarily have this drive our priorities. There may be legitimate reasons to wait, it may not be that big of a deal. It may be a minor change, it may be something that we can roll into something else that we're going to be doing in 18 months. So, we would just like that flexibility to do it as soon as practicable; counting, of course, on the Alaska Oil and Gas Association and other industry members to be watching us to make sure that we really follow through." Number 477 MS. ADAIR explained the next proposed amendment was on page 2, line 1: Delete: "standard" Add: "criteria" MS. ADAIR said, "This refers to water quality standards set by the Environmental Protection Agency. The EPA actually doesn't set water quality standards, they have water quality criteria. So, this is a corrected change where we delete the word `standard' and replace it with `criteria.' That is a significant change as far as what the EPA actually does. We think it's important. It does not change the impact or the goal of the bill, it's just a clarification to make it correct." Number 518 MS. ADAIR continued her review of the proposed amendments: Page 2, line 10 Delete: "maintain the state's aquatic productivity;" Insert: "the environment" MS. ADAIR remarked, "The sponsor, I believe, stated that the term, `state's aquatic productivity' was added at the request of the Department of Fish and Game. That was because it had been proposed at the subcommittee level to delete the term, `and the environment.' We would like to see that changed back so it would say, ` protect human health and the environment.' That is common terminology used throughout Title 46 and it does encompass that concept of the state's fish resources. It could be other things that may depend on a waterbody." Number 563 CO-CHAIRMAN GREEN clarified that the amendment replaced the language, "maintain the state's aquatic productivity" Number 600 MS. ADAIR continued to explain the proposed amendments: Page 2, line 14, at the beginning of subparagraph (4) Add: "when site specific information is reasonably known or available" MS. ADAIR stated, "We don't always have the information on the natural condition of a waterbody and we wanted to clarify that this wouldn't require us to go out and generate information. This usually comes into play when you have a site specific water quality standard and where the natural condition is important. So, we just wanted to make that clarification." Number 665 MS. ADAIR her review of the proposed amendments: Page 2, line 28, amend subsection (b) to read: "(b) The department shall, when adopting a standard or regulation under (a) of this section provide with the public notice draft of the proposal a written explanation that describes the basis for the proposal which shall include (1) the department's consideration of the economic feasibility of the proposal; (2) the department's consideration of the technological feasibility of the proposal; (3) if applicable, a finding that (A) the water quality standard, discharge standard, or method of measurement is reasonably required to protect human health and the environment; and (B) hydrologic conditions or discharge characteristics are significantly different in the state or in an area of the state from those upon which the corresponding federal standard, if any or regulation is based." MS. ADAIR stated, "We are proposing a revision on page 2, line 28, subparagraph (b) which dictates how the department will adopt a more stringent water quality standard, or a standard where there is no federal criteria. The reason here is, as written, this requires that we hold a public hearing. The Administrative Procedures Act does not require an agency to hold a public hearing. There may not be sufficient interest to hold one and yet they are very expensive. So, we would like to eliminate that requirement. If it's necessary, if the public requests a public hearing, we would simply follow the Administrative Procedures Act, and do that. But We do recognize that there is some information that people would like to have available with the public comment draft of the regulations." Number 714 MS. ADAIR proceeded, "Representative Davies did discuss this in one of the amendments that has been adopted, takes care of this concern. But, as drafted, on page 3, line 3, before Representative Davies' amendment was adopted, we would be required to prepare a written analysis of the economic feasibility of the proposed standard. That's something that we just don't feel that we can be successful at doing. We do agree that we need to consider the economic feasibility. It may be that a given industry sector would do an economic feasibility for our use, and we absolutely should consider that, and we should let people know what we've thought about it so they can correct it or give us additional information. But we don't have the kind of staff that can do an economic analysis. We have engineers and environmental specialists. So, what we propose is that, by giving you the language here, it would require that we demonstrate, in writing, and provide this in a memo form, perhaps with the public draft notice, that we have considered the basis for the proposal; that we've considered the economic feasibility and what that is, the consideration of the technological feasibility and, if applicable, a finding that the water quality standard, the discharge standard or the method of measurement is reasonably required to protect the human health and the environment, and that the hydrologic conditions or discharge characteristics are significantly different than the federal standard. So, it gets to the same kind of information - a little bit different and we think something that we can actually be successful at doing." Number 823 CO-CHAIRMAN WILLIAMS expressed concern about not being able to have the economic feasibility (indisc.) proposed and brought before us. He remarked, "I appreciate what you are saying that department doesn't have the expertise for this or that, but there are people. And if it is going to hurt the economic ... of a company, then I think we should understand that and we should find out how it's done and you're saying here now, that you will have that study done?" Number 978 MS. ADAIR replied, "Representative Williams, the way that this would work, as we have proposed it, is that we would consider the economic feasibility of the proposal if a company or an industry sector did their own analysis of the proposal, then yes, we would have to consider that. If no one did, because, maybe it isn't that big of a deal or it's not very important, or it doesn't really have a big impact, then we would look at, to the best of our ability, how we think this would impact industry. We do this in our regulations now, particularly where we have fee based regulations and we say, this is what we think it's going to cost to do this. And, this is why. Sometimes, we find out that we're very wrong, and we go back and we change our proposal accordingly. The solid waste regulations are a perfect example of that. We do the best that we can and then we rely on the public comment that we get back, the information that we obtain from industry to further that and to flush that out better. We would absolutely consider that and explain how we considered it, what we thought about it, what we did and how our proposal took that into account. It wouldn't be an economic analysis as we are reading it, in that more formal sense of the word, because it's just not something we can do." Number 959 CO-CHAIRMAN WILLIAMS wanted assurance that it is taken into consideration. He said, "If we have to be stronger here, I would like to hear things that the government does and doesn't take into ... the human factor, also, the economics factor." Number 978 MS. ADAIR remarked, "We do too; we agree with that. That's why it's important to us that this be done in a way that we can actually be successful at accomplishing it. And, we feel that this does that and we can accomplish that goal." Number 1001 CO-CHAIRMAN WILLIAMS commented, "There are times when a company does not have the ability to pay for an economic study and if we were going to amend this, as such, then I would like to see a little stronger language in there." Number 1037 MS. ADAIR continued her review of the proposed amendments: Page 3, delete lines 24-26. MS. ADAIR stated, "Mr. Chairman, we propose also, to delete the reporting requirement. As Representative Kott said, there are a lot of reports that come to the legislature. I think, just the term `report' connotates something a little bit more massive and a little bit more labor intensive than perhaps the word `memorandum' or `briefing' might indicate." MS. ADAIR continued, "The Administrative Procedures Act requires that we send copies of any regulatory changes to all standing members of the legislature, all members of the Administrative Regulation Review Committee and all members of both resources committees. So, any proposal that we would have as a result of Section 2, - some of you may get two or three copies of it because that's what the Administrative Procedures Act requires. We are always available to answer any questions, we certainly would be available on January 30 or any other day next session to come forward and tell you how we have done this, what we have found, what the proposals have been. But, in an attempt to try to minimize the fiscal impact of this legislation, we would propose to eliminate lines 24 through 26 on page 3." Number 1097 CO-CHAIRMAN GREEN recalled that Representative Kott mentioned a briefing to the joint sessions of the resources committees. He asked if that would that be permissible? MS. ADAIR stated the department wouldn't have a problem with that, if it were requested. Number 1119 CO-CHAIRMAN GREEN assessed the list of proposed amendments stating that he was not sure the committee was ready to accept each one or the sponsor's position. He suggested the committee go back through the proposals and asked Representative Rokeberg to come forward. Number 1134 MS. ADAIR offered an additional amendment concerning the measurements for sediment. Page 1, line 9, Following: (b) add: "Except as otherwise provided in AS 46.03.087," MS. ADAIR noted, "There is the idea, on page 2, that we may have a different method if we go through a process, but there is no exception on line 9 to that recognition on page 2. We would propose at line 9 in the beginning that we add "except as provided in AS 46.03.087" because that does recognize then that in that section at subparagraph (3) which is at line 24, page 2, that there is a process that the department can go through if we're going to do something different." CO-CHAIRMAN GREEN suggested that the committee start with that amendment. Number 1184 REPRESENTATIVE ROKEBERG said that having had a few more minutes to look at these he had not changed his position on these amendments. He added, "I think there is a situation where certain of these (indisc.) and it does have another committee of referral. Frankly, my view of these amendments is that it totally eviscerates this bill and makes it valueless (indisc)." He felt these amendments were a clear attempt to sabotage the intent of the bill. REPRESENTATIVE OGAN agreed, "I feel that it is highly irregular for these amendments to be brought at this time. This bill was assigned to a subcommittee with the purpose of working out these problems. The department did not bring these problems forth during that subcommittee process. This late in the game, I would interpret this as being a tactic to delay or kill the bill. I would suggest that we pass the committee substitute, version G, out of committee and allow the department and the sponsor of the legislation, to work out their differences and draft a committee substitute for the next committee of referral." Number 1275 CO-CHAIRMAN GREEN understood the discussion about the lateness of the proposed amendments and the possibility of addressing them at the next committee of referral because of the deadline. These are issues that should be considered in this committee but if we do that, we will miss the deadline. Number 1287 MS. ADAIR interjected, "It was our goal to eliminate the fiscal notes on this bill so that it would not have another committee of referral. It wasn't our intent to try to kill this bill. As I stated, we only got the draft committee substitute on Monday. Many of the concerns that we brought forward in the subcommittee were not addressed in the draft CS. We turned it around as quickly as possible and tried to do it in a consensus fashion. We worked with Alaska Oil and Gas Association and the Resource Development Council yesterday on these amendments. I was at my office last night until about 8:00 p.m. on this and faxed them to Marilyn Crockett. It was our hope that we could then bypass the next committee of referral and instead have it go right to House Rules. So, I do not want anyone to think that we're trying to kill this bill or derail it in anyway. That's not the intent at all. We're trying to make something that we can work with, that we can be successful at and still address the concerns as they have been expressed to us, as we understand them." Number 1345 CO-CHAIRMAN WILLIAMS wanted to know if the department had participated in the subcommittee meetings. REPRESENTATIVE AUSTERMAN responded, "Yes, they were." CO-CHAIRMAN WILLIAMS asked how long the bill had been in subcommittee - two weeks? Number 1365 MS. ADAIR replied that she had participated in one subcommittee meeting via teleconference at which the department had proposed language and waited for the committee substitute to come out as a result of that meeting. She added that's the committee substitute that she got on Monday. Number 1396 CO-CHAIRMAN GREEN received word from the Office of the Speaker that the committee had an additional 30 minutes for its meeting. He said, "We have a 30-minute reprieve, maybe we should get to the bottom of this." CO-CHAIRMAN GREEN summarized that Ms. Adair had been involved with the subcommittee, had indicated the department's desires, she would receive the subcommittee committee substitute and if there were additional comments, she would make them at this hearing. MS. ADAIR clarified that she participated in only one subcommittee meeting and didn't know if there were others. She said, "We did have proposed language and, yes, we thought we would see the CS with a little bit more time. We did find out yesterday that the bill would be brought back up today." Number 1462 REPRESENTATIVE ROKEBERG said, "Mr. Chairman, I was not aware -- my concern is, I was under the impression from the input we had at the subcommittee meeting that we had met almost all the concerns that the department had brought to our attention at that time. That's the concern I had. I apologize if I didn't understand correctly but Representative Davies was there -- really, I thought that we had pretty well covered most of the things. There may have been a couple of technical points that we didn't cover -- that could well be the case, but there was a number of major, substantive amendments here and I thought discussed them." Number 1496 CO-CHAIRMAN GREEN asked if the sponsor was aware that by doing these amendments there would be a zero fiscal note which would allow bypassing the House Finance Committee. Number 1510 REPRESENTATIVE ROKEBERG appreciated that objective and added that by creating a zero fiscal note, the department is creating a zero bill. Number 1522 CO-CHAIRMAN GREEN asked the subcommittee chair, Representative Austerman, if he was aware of the desires of the Department of Environmental Conservation and were these issues discussed at the subcommittee meeting? Number 1528 REPRESENTATIVE AUSTERMAN explained that he had not attended the full subcommittee meeting, but he had indicated to Susan Braley that the subcommittee would not meet until after the Easter break. He asked her, at that time, to bring written comments on all the changes they wanted in that bill. He recalled that the DEC comments at that meeting were verbal. REPRESENTATIVE AUSTERMAN did not want to cast any dispersions on the department but he felt they had had ample time to submit their concerns in writing. He said, "To continue to wait until we bring forward new versions, based upon conversations that we had and then continue to want to change those, to me, appears to be a stalling tactic. I think we should move this bill out of committee." Number 1602 CO-CHAIRMAN GREEN asked if there were any members of the Alaska Oil and Gas Association in this meeting? REPRESENTATIVE AUSTERMAN replied, "They were on teleconference." Number 1611 MARILYN CROCKETT, Assistant Executive Director, Alaska Oil & Gas Association, responded, "We did participate in the April 10th teleconference of the subcommittee. That was the second meeting of the subcommittee that was held. We presented written proposals at both of those subcommittee meetings. The version G that you have before you today, from our perspective and from my notes and recollections from the last meeting, the April 10th meeting of the subcommittee, I believe incorporates the tentative agreement that all of us reached at that time, without having the actual work in front of us, obviously. There were changes made during that teleconference on the 10th. I believe this version, for the most part, represents the agreements that we reached on that date." MS. CROCKETT continued, "From AOGA's perspective, this bill as it's drafted today, with some of the changes that have been suggested at the committee meeting today, meets the goals and objectives that we wanted to see in the original HB 342." Number 1680 REPRESENTATIVE KOTT asked if these issues had been brought before the subcommittee. Number 1692 MS. ADAIR said, "All but the shellfish were. We talked at length about the problem with the economic analysis, which is one of our biggest concerns. The shellfish was one that frankly I didn't think about until Fish and Game testified before the subcommittee." Number 1710 REPRESENTATIVE DAVIES clarified that there was one subcommittee meeting. He said, "We didn't have formal language that we all walked out of the meeting hand-in-hand, saying that this is what we're going to go forward with, so when we got back the CS that's in front of us, it was a very good faith effort on the part of the sponsor to translate this into a piece of legislation. I believe that it got 90 percent of the discussion. But there were still a few things and as you see, I had to bring forward a couple of amendments of my own so that I thought the committee substitute comported more closely to what we discussed. And there really was not - because we didn't have a second meeting of the subcommittee - there wasn't an opportunity to review the legislation in the form of legislation so that all the i's could be dotted and the t's crossed. I believe that most of the issues that are proposed here in the DEC amendments are clarifications of discussions that we actually had at that first, and only, subcommittee meeting. So, I don't think that it's out of place that DEC would come back at this point in time with sort of their clarifications of the things that we put into the bill in response to the discussions we had at the subcommittee level. I think that this is in fact, the only opportunity that's been had to do that and we adopted a number of amendments that I proposed and in that same process, that we certainly should consider DEC's considered look at the CS." Number 1804 CO-CHAIRMAN GREEN presumed for the sake of continuity, that committee substitute, Version (G), represents a fair interpretation of the subcommittee's work. He noted the committee now had before them suggestion for several amendments, which would be considered. Number 1818 CO-CHAIRMAN GREEN brought forth the amendment on page 1, line 9, and asked if committee members understood the amendment or if there was any discussion? Number 1830 REPRESENTATIVE KOTT wondered if the DEC had discussed this amendment with the Alaska Oil & Gas Association. MS. ADAIR explained the proposed amendment was a clarification suggested by the Department of Fish and Game. The department thought it made sense because of the way the rest of the bill is written. Also, there is that recognition in the section on special procedures on page 2, line 24, "regulation that allows the use of a method that is not substantially equivalent..." So, the department thought it would be a good clarification. Number 1867 REPRESENTATIVE ROKEBERG remarked that the amendment speaks "right to the heart of the bill." He noted it actually has to do with the controversy between settled solids and suspended solids. This language is requested so the department can do whatever it wants to do in terms of its methods of measurement and determine whether they want to consider settleable solids as well as suspended solids. The legislation, as drafted in the committee substitute, sets the standard for settled solids not suspended solids. REPRESENTATIVE ROKEBERG recommended that the department come up with the idea and the methodology that meets the concerns of the people in the mining industry and the fishing industry and come back next year and amend the statute. Number 1919 CO-CHAIRMAN GREEN noted that the paragraphs before and after the language in question have that exception. REPRESENTATIVE ROKEBERG said if there is any deviation from the language in Section 1, subsection (b), the mining industry will remove their support of this bill. MS. ADAIR stated that certainly wasn't the intent. The department would still have to go through the special procedures to do something different; they just saw it as a clarification. CO-CHAIRMAN GREEN questioned whether the DEC felt the Imhoff Cone Method would satisfactorily put the water... Number 1974 MS. ADAIR interjected that she is not a water quality expert. She thought that was the method used today and the method that is planned to be used. She didn't think that was the issue. It was her understanding that as the department reviews this, if there is some other method that is approved by EPA, that the department thinks would get them to a better result, then they would go through the special procedures on page 2 that give people the opportunity to comment on whether or not that was appropriate. Number 2000 REPRESENTATIVE ROKEBERG maintained his objection. Number 2011 REPRESENTATIVE AUSTERMAN reported on an earlier discussion on this issue and related his interpretation that there is a problem if the language is changed. He deferred to Representative Davies. Number 2032 REPRESENTATIVE DAVIES felt that both parties were correct. He remarked, "Logically, the exception language should be provided here, but in fact if you talk to the members of the mining industry, they are violently opposed to having that option in there." He did not recommend that the committee put this kind of specificity in the statute and added they were writing water quality regulations in the statutes by doing this, and he thought that was a bad thing to do. REPRESENTATIVE OGAN recommended calling for the question. Number 2074 CO-CHAIRMAN GREEN noted that the amendment had not been offered by a member of the committee. He asked if there was an offer of an amendment as discussed the representative from the DEC for page 1, line 9? Hearing none, the amendment was not offered. Number 2088 MS. ADAIR referred to the amendment on page 1, line 12, adding the language, "(c) Except when setting standards for shellfish growing areas pursuant to AS 03.05.011 and except as provided in AS 46.03.087." MS. ADAIR explained, "This would allow us to continue to set different and more stringent standards for shellfish growing areas which is required in the National Shellfish Sanitation Program which we are required to follow under AS 03.05.011 to sell commercially grown shellfish interstate." Number 2104 REPRESENTATIVE ROKEBERG said that conceptually, had no problem with the amendment but wanted to know what the citation .011 was and didn't know what the impact of the language was of the language that was not italicized. MS. ADAIR stated the language in italics is all that is being added. REPRESENTATIVE ROKEBERG asked about the citation .011. MS. ADAIR explained that was simply the DEC's authority over seafood, food processing and other kinds of ... meat, dairy. Number 2134 REPRESENTATIVE ROKEBERG had no objection to the amendment. REPRESENTATIVE OGAN moved the amendment. Number 2171 CO-CHAIRMAN GREEN explained the amendment was to add "(c) Except when setting standards for shellfish growing areas pursuant to AS 03.05.011 and except as provided in AS 46.03.087". He asked if there was objection to the amendment. Hearing none, the amendment was adopted. REPRESENTATIVE AUSTERMAN wondered if the chairman considered that Amendment 1? CO-CHAIRMAN GREEN said there had been several others; it would be considered Amendment 4. Number 2178 REPRESENTATIVE ROKEBERG referred to the amendment on page 1, line 14, which removes "Promptly but no later than 12 months" and replaces it with "as soon as practicable" and said he had worked with the AOGA, and he would be happy to work with the department, if there was some question about the draft of it. He said, "If an applicant requests `speed up' and we put a three month deadline or something, I am willing to work with the department on this, but right now, we don't have time to craft it, so I'd be happy to work with the department to get some language that would accomplish the same thing here." CO-CHAIRMAN GREEN assumed then that the sponsor would like to leave the committee substitute the way it is. REPRESENTATIVE ROKEBERG replied, "At this point, yes." Number 2217 REPRESENTATIVE OGAN informed the panel that according to his notes, the issue was raised in subcommittee but not addressed in the bill. Number 2230 REPRESENTATIVE AUSTERMAN emphasized that not everything that was wanted by the DEC or the AOGA would be (indisc.) could not be all encompassing to all people. He believed there were some things that the legislature would have to make the decisions on. Number 2244 MS. ADAIR referenced the handwritten amendment to delete "standard" and add "criteria," on page 2, line 1 and said the department see this as a technical amendment only. It was something their Attorney General had pointed out, but hadn't had the benefit of reviewing this until this morning. However, she believed this to be a very important change since the federal government adopts criteria that the department then adopts as a standard. CO-CHAIRMAN GREEN offered the amendment as Amendment 5. REPRESENTATIVE ROKEBERG said he had no objection. REPRESENTATIVE DAVIES questioned the use of the word "standard" throughout the bill asking if every other instance of the word "standard" was correct usage. MS. ADAIR thought that was correct. She said, "We have standards, so any place we talk about state water quality standards, that is correct. If you talk about federal water quality, you need to talk about criteria." Number 2300 CO-CHAIRMAN GREEN asked if the committee had objection to the amendment. Hearing none, Amendment 5 was adopted. Number 2306 MS. ADAIR said, "This one, the proposal that had been drafted for the subcommittee's consideration, had public health and the environment. At the subcommittee, the copy that we got had `and the environment' crossed out so it would just have been a human health standard. The Department of Fish and Game said we have to have more than just a health standard, how about `maintain the state's aquatic productivity.' We would propose that we go back to human health and the environment. It gets to the same place but it just is consistent with other portions of DEC's statutes in Title 46. So, again we don't think it's doing anything significantly differed, it is question of consistency with other portions of our statute." The amendment is as follows: Page 2, line 10 Delete: "maintain the state's aquatic productivity" Insert: "the environment" Number 2340 REPRESENTATIVE ROKEBERG recalled this issue was discussed in subcommittee and understood that a compromise had been reached because of testimony relating to inclusiveness of the environment. He stated, "I would be willing to talk these people again about that, but I have no comfort level accepting that. I thought we have made an accommodation, particularly, as it related to the Department of Fish and Game's concern." Number 2363 REPRESENTATIVE AUSTERMAN remembered that the language "maintain the state's aquatic productivity" was put forth in subcommittee. Now the committee was being asked to take it back out. Number 2370 MS. ADAIR stated, "This was at the request of Fish and Game. They brought up the issue but I understand that they are now comfortable with the changes made by Representative Davies' amendment that puts it into the other part of the bill. So, if they are okay with it, we can live with the inconsistency." Number 2384 GERON BRUCE, Legislative Liaison, Office of the Commissioner, Alaska Department of Fish and Game, commented the department is comfortable with the language, especially, since Representative Davies' amendment considered it in another part of the bill. However, he wanted to make clear that they were talking about the aquatic productivity of the individual waterbodies in the state. He said, "We expect to be maintaining those. We are not talking about a general statement. We want to be able to maintain, as a part of the water quality regulations, aquatic productivity of individual waterbodies as well as the state's waterbodies, as a whole." Number 2409 CO-CHAIRMAN GREEN remarked the department could work with the sponsor. The chairman asked for the next amendment. Number 2420 MS. ADAIR referred to the amendment on page 2, line 14, which adds: "when site specific information is reasonably known or available" to the beginning of subparagraph (4). She remarked, "As I understand what fish and game said and in talking with Susan Braley, with our water quality program, that we don't always have the condition of the natural waterbody. So, when we have it, then this comes into play." Number 2440 MR. BRUCE related that this is where the department was trying to help with the fiscal note. If the information is not available, but they are required to go out and get it and make a demonstration, there will be very significant cost associated with that. He added, "So, we are trying to say, if you want to reduce the cost, then provide us the flexibility to work with the information that is available; don't require us to go out and generate new information." Number 2486 CO-CHAIRMAN GREEN remarked that adding the language to the beginning of (4) on page 2, line 14, reads funny. MS. ADAIR agreed that placing the language at the end would read better. Number 2468 CO-CHAIRMAN GREEN offered the amendment as Amendment 6. Number 2476 REPRESENTATIVE ROKEBERG said, "This is a land mine amendment. I appreciate the statement by the department to make this a zero fiscal note but what they are doing here is suggesting that the burden of proof, by subsection (4), shifts over to the Department of Environment Conservation ... (End Tape) TAPE 96-58, SIDE B Number 001 REPRESENTATIVE ROKEBERG continued ... "I would be happy to sit down here. If we can have a modifier where a permittee may have some requirement to provide some of this data and to assist the department, maybe we can modify that. But as proposed, I just seriously object to this." CO-CHAIRMAN GREEN noted there was a motion on the floor to which an objection had been raised. He asked if the objection was maintained. REPRESENTATIVE OGAN maintained his objection. CO-CHAIRMAN GREEN asked for a roll call vote. Number 045 Representatives Davies, Kott, Nicholia, Ogan and Green voted in favor of Amendment Number 6. Representatives Austerman, Long and Williams voted against Amendment Number 6. Representative Ogan changed his vote from yes to no. NOTE: (The Committee Secretary inadvertently tallied the roll call vote in favor of the amendment). C0-CHAIRMAN GREEN noted the amendment passed. Number 071 MS. ADAIR referred to page 2, line 28, amend subsection (b) to read "(b) The department shall, when adopting a standard or regulation under (a) of this section provide with the public notice draft of the proposal a written explanation that describes the basis for the proposal which shall include (1) the department's consideration of the economic feasibility of the proposal; (2) the department's consideration of the technological feasibility of the proposal; (3) if applicable, a finding that (A) the water quality standard, discharge standard, or method of measurement is reasonably required to protect human health and the environment; and (B) hydrologic conditions or discharge characteristics are significantly different in the state or in an area of the state from those upon which the corresponding federal standard, if any or regulation is based." MS. ADAIR related that there are two substantive changes: (1) eliminates the requirement for a public hearing; and (2) there is a change from preparing a written analysis of economic feasibility to consideration of the economic feasibility. This section has been changed somewhat by the previous amendment which works for the department as well. She thought the reorganization flows a little bit better. Number 112 REPRESENTATIVE ROKEBERG said the whole idea of the public hearing was not brought up in the subcommittee. He thought there may be some merit but he had not had a chance to consider it. The other issues that relate to the subsection (A) and (B) language, he was not certain as to their effect. As a result, he said he would be happy to work with the department on that but he objected to this amendment. He just didn't understand it. REPRESENTATIVE AUSTERMAN indicated that he had not had a chance to read the amendment and didn't know what the effect would be. CO-CHAIRMAN GREEN recommended that the department work this out with the sponsor before the next committee of referral. MS. ADAIR said the last amendment was on page 3, delete lines 24- 26. Number 149 REPRESENTATIVE DAVIES requested to move a different amendment. Following Representative Kott's lead, amend lines 24 and 25 on page 3 to read: "The Department of Environmental Conservation shall by January 31, 1998, brief the Resources Committee of the House and Senate of the Legislature concerning its review and proposed revisions required under (a) of this section." Number 179 CO-CHAIRMAN GREEN asked to amend the language to read, "the joint session." REPRESENTATIVE DAVIES said that is an additional requirement, it could be joint session or not, depending on the committees. Number 186 REPRESENTATIVE ROKEBERG had no objection. REPRESENTATIVE DAVIES moved his amendment. Number 190 MS. ADAIR asked if the committee envisioned that the department make the offer to brief the House and Senate Resources Committees. She said, "We cannot compel you to listen to us. We're happy to send a letter saying we're ready to brief you, whenever you are ready to listen to us and to have that sent to you by the 31st of January." REPRESENTATIVE DAVIES considered "shall offer" as a friendly amendment. Number 212 CO-CHAIRMAN GREEN asked if there were objections to Amendment 7? Hearing no objection, Amendment 7 was adopted. Number 217 REPRESENTATIVE OGAN moved to rescind action on Amendment 6 and revote the issue. C0-CHAIRMAN GREEN and Representative Nicholia objected. CO-CHAIRMAN GREEN asked for a roll call vote. Representatives Austerman, Ogan and Williams voted in favor of the motion. Representatives Davies, Kott, Long, Nicholia and Green voted against the motion. Number 253 REPRESENTATIVE OGAN moved that CSHB 342(RES) am move from the House Resources Committee with individual recommendations and attached fiscal note. Number 267 REPRESENTATIVE ROKEBERG commented that since Amendment 6 was adopted by the committee, he wanted the department to publicly state whether they were going to maintain or offer a zero fiscal note. MS. ADAIR replied, "I think so." Number 280 CO-CHAIRMAN GREEN said there was a motion on the floor to move the bill from committee. REPRESENTATIVE DAVIES moved to zero out the fiscal note. Number 288 REPRESENTATIVE OGAN moved to rescind his motion to move the bill from committee. Number 292 REPRESENTATIVE DAVIES moved that CSHB 342 (RES) am move from the House Resources Committee with a zero fiscal note. Hearing no objection, it was so ordered. NOTE: CSHB 342 WAS HELD FOR CLARIFICATION AND NOT TRANSMITTED TO THE CHIEF CLERK 04/17/96. ADJOURNMENT There being no further business to come before the House Resources Committee, Chairman Green adjourned the meeting at 10:37 a.m.